P L D 1989 Karachi 404

Present: Ajmal Mian, C. J.,

Saeeduzzaman Siddiqui, Saleem Akhtar,
Haider Ali Pirzada, Syed Abdul Rehman,
Mamoon Kazi and Abdul Rasool Agha, JJ

SHARAF FARIDI and 3 others--Petitioners

versus

THE FEDERATION OF ISLAMIC REPUBLIC OF PAKISTAN through Prime Minister of

Pakistan and another--Respondents

Constitutional Petitions Nos. D-123 of 1974 and D-891 of 1987, decided on 24th April, 1989.

Per Ajmal Mian, C.J., Saeeduzzaman Siddiqui, Saleem Akhtar, Haider Ali Pirzada, Syed
Abdur Rehman and Abdul Rasool Agha, JJ,; agreeing; Mamoon Kazi, J. contra--

(a) Constitution of Pakistan (1973)--

---Art. 175--Establishment and jurisdiction of Courts--Separation of judiciary--Requirement of

Art.175 will be met if the Judiciary has effective say in formulation of its annual
demands--Executive should place annual funds as per requirements at the disposal of the
Judiciary for operating it without being interfered with by any agency of Executive.

(b) Constitution of Pakistan (1973)--

---Art. 200--Transfer of a High Court Judge to another High Court or to the Federal Shariat
Court can only be made in the public interest and not for an object alien to the said
object--Question whether a transfer is for a public interest is justiciable even at the behest of a
lawyer.
(c) Constitution of Pakistan (1973)--

---Arts. 177, 182, 193 & 196--Appointments of the Chief Justice of Pakistan and Judges of the
Supreme Court and Chief Justice and Judges of High Court by the President--- Consultation
with the Chief Justice of Pakistan and the Chief Justice of the High Court concerned by the
President should be meaningful.

Samsher Singh v. State of Punjab and another AIR 1974 SC 2192; S.P.Gupta and others v.
President of India and others AIR 1982 SC 149 and State of Kerala v. A. Lakshmikutty and
others AIR 1987 SC 331 ref.

(d) Constitution of Pakistan (1973)--

---Arts. 200, 193 & 175--Constitution (Fifth Amendment) Act (LXII of 1976), Ss. 4 &
12--Revival of the Constitution of 1973 Order (14 of 1985), Sched., Items 33 & 41--Provisional
Constitution Order (1 of 1981), Art. 10--Introduction of provisions in the Constitution for
transfer of a High Court Judge to another High Court without his consent and so also
appointment of a High Court Judge to the Federal Shariat Court without his consent, at the peril
of his being stand retired, in case of his refusal to accept transfer or appointment, or the
provision relating to the nomination of a High Court Judge to any of its Benches are the
amendments/ additions which militate against the concept of the independence/separation of
Judiciary as envisaged by the Constitution.

(e) Constitution of Pakistan (1973)--

---Art. 2-A--Not open to the High Court to hold that any of the Constitutional provisions is
violative of the Objectives Resolution.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26
ref.????????

(f) Constitution of Pakistan (1973)--

---Arts. 200, 193 & 175--Constitution (Fifth Amendment) Act 0X11 of 1976), Ss. 4 &
12--Revival of the Constitution of 1973 Order ~14 of 1985), Sched., Items 33 &
41--Provisional Constitution Order (l l of 1981), Art. 10--Amendments in Arts.200, 193 & 175
relating to Judiciary cannot be said to have altered the basic structure of the Constitution
pertaining to the working of the Judiciary.

(g) Constitution of Pakistan (1973)--

---Art. 199--High Court, in its Constitutional jurisdiction cannot declare any of the
Constitutional provisions as ultra vires.

(h) Constitution of Pakistan (1973)--

---Art. 203--Supervisory jurisdiction of High Court--Provisions of Art.203 relate more to

administrative aspect than the judicial aspect.

The High Court exercises supervisory jurisdiction of two types i.e. judicial which is- conferred
on the High Court by virtue of Article 199 of the Constitution, provisions in the Civil Procedure
Code, Criminal Procedure Code and the other relevant enactments either as an Appellate Court
or Revisional Court and the second type of supervisory jurisdiction is administrative.

Article 203 relates more to administrative aspect than the Judicial aspect.

Abdul Rehman v. Mst. Chaman Ara PLD 1972 Kar. 164 and Karim Bakhsh v. Mst. Mubarik
Jan PLD 1970 Pesh. 169 ref.

(i) Constitution of Pakistan (1973)--

--Arts. 203, 175 & 2-A--Supervision and control over the subordinate Judiciary vested in the
High Court under Art.203, keeping in view Art.175, is exclusive in nature, comprehensive in
extent and effective in operation and comprehends the administrative power as to the working
of the subordinate Courts and disciplinary jurisdiction over the subordinate judicial
officers--Any provision in an Act or any rule or a notification empowering any executive
functionary to have administrative supervision and control over the subordinate Judiciary will
be violative of Art.203, Constitution of Pakistan and will militate against the concept of
separation and independence of Judiciary as envisaged by Art. 175 of the Constitution and the
Objectives Resolution.
Ballentine's Law Dictionary, 3rd Ed n. and Black's Law Dictionary, 5th Edn. ref.

(j) Administration of justice--

--- Court having jurisdiction to adjudicate upon a matter, has the power to mould a relief
according to the circumstances of the case, if dictates of justice so demand even if such a relief
has not been expressly claimed provided the relief to be given is within the compass of the
jurisdiction of the Court.

Merbury v. Madison 1 Cranch 137, 2 L.Ed. 60 (1803); Encl,lopaedia of the American

Constitution by Leonard W. Levy; Essays in Constitution Law by R.F.V. Heuston; From
Brown to Bakke by J. Harvi Wilkinson III; Supreme Courts and Judicial Law Making:
Constitutional Tribunals and Constitutional Review by Edward Whinney, and State Politics
and Islam by Mumtaz Ahmad; Mohidduin? v . The Province of East Pakistan and others PLD
1962 SC 119; commissioner, Khairpur Division, Khairpur and others . Ali Sher Sarki PLD
1971 SC 242 and Sind Employees' Social Security Institution and another v. Adamjee Cotton
Mills Ltd. PLD 1975 SC 32 ref.

(k) Constitution of Pakistan (1973)--

--Arts.175, 6 & 199--Relief can be granted in relation to Art. 175 by the High
Court--Non-fulfilment of Art.175 does not amount to subversion in terms of Art. 6 of the
Constitution.

(I) Constitution of Pakistan (1973)--

---Arts, 175, 203 & 30(2)--Constitution provides expressly that in respect of certain provisions
relating to the Principles of Policy no action will lie but there is no such provision in respect of
Arts.175 & 203 of the Constitution.

(m) Constitution of Pakistan (1973)--

--Arts. 175, 203 & 199--High Court can issue a direction to the Federal and Provincial
Governments to initiate legislative measures for bringing the existing laws in conformity with
Arts. 175 & 203 of wee Constitution--Directions issued accordingly.
???????????????? Since the various Federal and Provincial Governments after the enforcement
of the Constitution in 1973 have failed to do what they were/are required to do under the
Constitution, direction/directions under Article 199 can be issued to them to do the same,
and similarly a prohibitory direction can also be issued not to do which is not permitted by the
Constitution. In order to bring the existing laws in conformity with Articles 175 and 203 of the
Constitution, not only some administrative actions are required to be taken but also some
legislative measures are needed. Direction/ directions to take administrative actions/ measures
required by the Constitution and/or any other law, can be issued against the Executive.
However, it is a debatable point, whether a direction can be issued to the Legislature to
discharge its constitutional obligation as to bring the existing laws in conformity with the
provisions of the Constitution by legislating the required laws, a direction can be issued to the
Federal and Provincial Governments to initiate legislative measures for bringing the existing
laws in conformity with the Articles 175 and 203 of the Constitution.

There is a marked distinction between a direction to the Legislature to legislate and a direction
to the Executive to initiate the legislative measures to bring the existing laws in conformity
with the provisions of the Constitution. The latter is permissible.

?(A)???? The Province of Sind was directed--

(i)???? to issue necessary Notification in terms of subsection (2) of section 1 of Ordinance

NO.XI1 of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating
magistracy into Judicial Magistrates and Executive Magistrates and to place the Judicial
Magistrates under the administrative control of the High Court within a period of six months;

(ii)?????? to issue necessary Notification, under sub-rule (2) of Rule 2 of the Sind Civil
Servants (Efficiency and Discipline) Rules,?????????? 1973, and Rule 4 of the Sind Civil
Servants (Appointment, Promotion and Transfer) Rules, 1974, notifying the High Court as the
Authority within a period of sixty days;

(iii)?? to initiate legislative measures within a period of six months in order to make necessary
amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sind Civil Servants
Act, 1973, Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Sind Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the
same in conformity with Articles 175 and 203 of the Constitution.

(B)?? The Federation of Pakistan is directed to initiate all legislative! administrative steps
measures to bring the existing laws relating or affecting the Judiciary in accord with Articles
175 and 203 of the Constitution within a period of six months.
Per Saleem Akhtar, J. agreeing with Ajmal Mian, C.J.--

(n) Constitution of Pakistan (1973)--

---Preamble--Judiciary enjoys a unique and supreme position within the framework of the
Constitution.

In a set-up where the Constitution is based on trichotomy of power, Judiciary enjoys a unique
and supreme position within the framework of the Constitution as it creates balance amongst
various organs of the State and also checks the excessive and arbitrary exercise of power by
the Executive and the Legislature. Judiciary has been termed as a watch-dog and sentinal of
the rights of the people and the custodian of the Constitution. It has been described as "the
safety valve" or "the balance wheel" of the Constitution. The jurisdiction and the perimeters
for exercise of power by all the three organs have been mentioned in definite terms in the
Constitution. No organ is permitted to encroach upon the authority of the other and the
Judiciary by its power to interpret the Constitution keeps the Legislature and Executive within
the spheres and bounds of the Constitution.

(o) Constitution--

---Constitution is a living document which reflects the aims and aspirations, genus and genesis,
temper and thinking of the people-?Constitution is not merely an imprisonment of the past, but
is also alive to the unfolding of the future--Constitution is Law of Laws.

(p) Interpretation of Constitution--

---Governing principle.

The governing principle of interpretation of Constitution is that as the Constitution is a

document which affects the life, liberty and rights of the people and also provides for
governance of the country, it has to be kept alive to meet the social, moral, economic, political
and legal demands and problems which may arise from time to time. It would thus be futile to
insist on ceremonious interpretative approach to constitutional interpretation as hithereto
undertaken which only served to limit the controversies between the State and the individual
without extending the benefits of the liberties and Principles of Policy to all the segments of
the population. Therefore, a flexible and progressive approach which may extend the benefits
of the Constitution to the people at large has been preferred over the ceremonious and rigid
interpretative approach.

Benazir Bhutto's case PLD 1988 SC 416; State of Punjab v. Ajaib Singh and another AIR 1953
SC 10 and Asma Jilani's case 1972 SCMR 139 ref.

(q) Interpretation of Constitution---

---Constitution is not to be interpreted in a narrow and pedantic manner--Conflict in the

provisions of the Constitution--Guiding principles to resolve.

The Constitution should not be interpreted in a narrow and pedantic manner. It should be given
liberal and broad interpretation but any enactment which transgresses the limitations placed by
Constitution would be declared void. If there is a conflict in the provisions of the Constitution
they should be interpreted harmoniously so that without violating the other both can be
practised and coexist. In such a situation a construction which ensures smooth working of the
Constitution in consonance with its other provisions should be adopted. No provision of the
Constitution unless so provided by the Constitution itself is supreme to the other nor can it
override the other provisions. Such interpretation should be adopted which promotes harmony,
consistency and keeps the Constitution alive and progressive.

(r) Constitution of Pakistan (1973)--

---Part II, Arts. 7 & 8--Word "State"--Definition of State is specially provided for Part II and
is not applicable to other parts of the Constitution--State covers Federal Government,
Parliament which comprises of National Assembly and the Senate, Provincial Government, a
Provincial Assembly and such local or other authorities which are empowered by law to impose
any tax or cess--Limitation has been placed on the Legislature not to curtail the Fundamental
Rights or abridge it by any law--Restriction has been placed on the Executive and the
Legislature as by legislation and by executive act, the Fundamental Rights are infringed,
violated or curtailed but there is no mention of the Judiciary in the definition of State--Manner
in which Constitution restricts Legislature and Executive from encroaching upon and violating
the Fundamental Rights stated.

The definition of the word "State" is specially provided for in Part II and it will not be
applicable to other parts of the Constitution. It covers the Federal Government, Majlis-e-Shoora
(Parliament) which comprises of the National Assembly and the Senate, Provincial
Government, a Provincial Assembly and such local or other authorities which are empowered
by law to impose any tax or cess. Therefore, the Legislature and the Executive besides the local
authorities as defined herein fall within the meaning of State. Article 8 (1) clearly provides that
any law, custom or usage having the force of law which is inconsistent with the Fundamental
Rights shall, to the extent of inconsistency, be void. The sanctity of the Fundamental Rights is
protected by Article 8(2) which prohibits the State which includes the Legislature not to make
any law by which any Fundamental Right may be curtailed or taken away and if any law is
made to this effect then to the extent of such contravention it shall be void. Therefore, under
Article 8(2) a limitation has been placed on the Legislature not to curtail the Fundamental
Rights or abridge it by any law. The restriction has been placed on the Executive and the
Legislature as by legislation and by executive act, the Fundamental Rights are infringed,
violated or curtailed. But there is no mention of the Judiciary in the definition of the State, and
therefore, it can be assumed that the Judiciary as the custodian of the Fundamental Rights
charged with a duty as a watch-dog to see that none of the Fundamental Rights are abridged or
taken away as provided by Article 8(2). The manner in which the Constitution restricts the
Legislature and Executive from encroaching upon and violating the Fundamental Rights are
set out as follows:

"When the impugned legislation by reference to its provisions is ex facie violative of

Fundamental Rights of an individual or political parties or associations or unions, proceedings
lie for the enforcement of those rights irrespective of the fact whether any prejudicial order has
been passed by the Executive under the law as the Constitution treats the Fundamental Rights
as superior to ordinary legislation and for that reason sub-Articles (1) and (2) of Article 8 of
the Constitution have been enacted which clearly reflect the object and intention of the framer
of the Constitution, that is, to keep the Fundamental Rights at a high pedestal and to save their
enjoyment from legislative infractions. Sub-Article (1) of Article 8 lays down that any law in
so far as it is inconsistent with the rights conferred by this Chapter shall, to the extent of such
inconsistency, be void. This could not have been without a purpose but to preserve and protect
the Fundamental Rights. Sub-Article (2) of Article 8 places a restriction on the Legislature not
to make laws which take away or abridge the rights so conferred, and any law made in
contravention of this clause shall to the extent of such contravention be void. Article 8 places
a restriction on the Legislature not to make 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."

Benazir Bhutto's case P L D 1988 S C 416 ref.

(s) Constitution of Pakistan (1973)--

---Art. 199(1)(c) & Part II--Fundamental Rights--High Court is authorised to enforce the
Fundamental Rights of an aggrieved person and to declare that so much of the law which is
inconsistent with the Fundamental Rights shall be void--High Court has power to declare the
law to be void and power to enforce the Fundamental Rights which are violated by the law
itself.
Benazir Bhutto's case P L D 1988 S C 416 ref.

(t) Constitution oaf Pakistan (1973)--

---Part II--Fundamental Rights guranteed by the Constitution are immune from the pale of
legislative enactments and executive actions.

(u) Constitution of Pakistan (1973)--

---Art. 50--Parliament, in Constitution of Pakistan, does not enjoy the supreme status like the
British Parliament.

In re: Delhi Laws Act, 1912 (1951) S C R 747 ref.

(v) Constitution of Pakistan (1973)--

---Arts.9, 175 & 203--Doctrine of "due process of law"--Right of "access to justice to all" is a
well recognized inviolable right enshrined in Art.9 of the Constitution and is equally found in
the doctrine of "due process of law"--Right includes the right to be treated according to law,
the right to have a fair and proper trial and a right to have an impartial' Court or
Tribunal--Justice therefore can only be done if there is an independent Judiciary which should
be separate from Executive and not at its mercy or dependent on it.

The right of "access to justice to all" is a well recognised inviolable right enshrined in Article
9 of the Constitution. This right is equally found in the doctrine of "due process of law". The
right of access to justice includes the right to be treated according to law, the right to have a
fair and proper trial and a right to have an impartial Court or Tribunal.

The term "due process of law" is summarized as follows:-

(1)? He shall have due notice of proceedings which affect his rights.

(2)? He shall be given reasonable opportunity to defend.

(3)? That the Tribunal or Court before which his rights are adjudicated is so constituted as to
give reasonable assurance of his honesty and impartiality; and

(4) That it is a Court of competent jurisdiction.

In terms of Article 9 of the Constitution a person is entitled to have an impartial Court and
Tribunal. Unless an impartial and independent Court is established the right to have a fair trial
according to law cannot be achieved. Therefore justice can only be done if there is an
independent Judiciary which should be separate from Executive and not at its mercy or
dependent on it.

Willoughby on Constitution of United States, 2nd Edn., Vol. II, p.1709 ref.

(w) Constitution of Pakistan (1973)--

---Arts. 9, 7, 175 & 203--If the "State" as defined in Art.7 fails to establish independent and
impartial Courts it offends Art.9 of the Constitution.

(x) Constitution of Pakistan (1973)--

---Arts. 9, 175, 196(b), 200(1)(4) & 203-C(4-B), (5)--Articles 196(b), 200(1)(4) & 203-C(4-B),
(5) of the Constitution are not only in conflict with Art.175 of the Constitution but they
encroach upon the Fundamental Right which guarantees a fair and proper trial by an impartial
and independent Judiciary--Denial and failure to establish independent Courts and Tribunals
by separating them from Executive therefore negates Art. 9 of the Constitution.

(y) Constitution of Pakistan (1973)--

---Arts. 175, 9 & 199--Any action taken or order passed in conflict with Art.175, High Court
will be competent to examine and determine its validity--Any law, order, action or proceedings
which offends the Fundamental Rights can be struck down.

(z) Constitution--
---Duty of Government to ensure compliance of the Constitutional provisions.

Ziaur Rehman's case PLD 1973 SC 49 ref.

(aa) Constitution--

---Legislature is bound within the four corners of the Constitution.

(bb) Constitution of Pakistan (1973)--

---Arts.175, 199 & 9--Mandatory duty is cast upon the Executive and Legislature to separate
the Judiciary from the Executive--Executive having remained completely silent, dormant and
unconcerned, such omission to exercise jurisdiction not only violates Art. 175 but infringes
Fundamental Rights as well--High Court, in such circumstances, can pass order and give
direction in mandatory form to ensure enforcement of the provisions of the Constitution and to
prevent breach of Fundamental Right.

Per Syed Abdur Rehman, J. agreeing with Ajmal Mian, C.J.--

(cc) Rule of law--

--- Meaning--Supremacy of law--Guarantees.

The rule of law has been universal obligation of every civilized country. It means supremacy
of law as opposed to the arbitrary authority of the Government. This supremacy guarantees
three concepts (i) absence of arbitrary power; (ii) equality before law, and (iii) rights of citizen.
The rule of law is the very bedrock on which the foundation of the entire Islamic justice is
based.

Holy Qur'an: Surah 4, Vs. 135; Surah 55, Vs. 7 to 9 and Surah 5, Vs. 9 ref.

(dd) Constitution of Pakistan (1973)--

---Art.2-A--Not necessary for the Courts to strike down any provision of the Constitution if it
is inconsistent with the Objectives Resolution or with any other provision thereof which stands
on a higher pedestal--Court can solve the problem by applying the principle of harmonious
interpretation keeping in view the principles of Islamic Ideology, morality, public good read
with the judicial activism following the latest trend of the decisions of the Supreme Court and
High Courts of the country.

Banazir Bhutto v. Federation of Pakistan P L D 1988 S C 416 ref .

(ee) Law Reforms Ordinance (RII of 1972)--

---S. 2(1) & Sched.--Necessity of enforcement of the remaining items of the Sched. of the
Ordinance relating to Code of Criminal Procedure all of which pertain to the separation of
Judicial Magistracy from Executive Magistracy emphasized.

(ff) Constitution of Pakistan (1973)--

---Art.200--Transfer of a High Court Judge to another High Court or to the Federal Shariat
Court--Endeavour by Federal Government to develop traditions and practices whereby
transfers of High Court Judges which may have the effect of causing harassment or
inconvenience to the concerned High Court Judge are avoided as far as possible
desired--Healthy practice be developed by not transferring a High Court Judge from one Court
to another or from High Court to Federal Shariat Court which requires fresh oath, without his
consent, and in no case without the concurrence of the Chief Justice concerned--Meaningful
conventions and healthy practices are the cornerstone of the democratic, judicial, legal and
Constitutional edifice.

Per Mamoon Kazi, J., Contra--

(gg) Constitution of Pakistan (1973)--

---Arts. 2-A & 199--Neither any provision of the Constitution can be tested on the touchstone
of Art. 2-A nor same can be struck down by High Court as inconsistent therewith or being
opposed to the basic structure of the Constitution.

(hh) Constitution of Pakistan (1973)--

---Arts. 2-A, 199, 175 & 203--High Court, while dealing with a Constitutional petition, is
neither competent to go behind the amendments introduced in the Constitution nor same can
be tested on the touchstone of Art.2-A of Constitution.

(ii) Interpretation of Statutes--

--- Provisions which are incapable of being enforced cannot be construed as self-executing.

Maxwell on Interpretation of Statutes, 10th Edn., p.375 and Caldow v. Pixell (1877) 2 CPD
562 ref.

(jj) Constitution of Pakistan (1973)--

---Arts. 175(3), 203 & 199--Whether the provisions of Art. 175(3) or 203 of the Constitution
are enforceable by the Courts.

The pivotal question is whether the provisions contained in Article 175(3) or 203 of the
Constitution are enforceable by the Courts. Article 175(3), no doubt, enjoins that the Judiciary
shall be separated from the Executive progressively within fourteen years and it places in this
respect an obligation on at least two of the organs of the State viz. , the Executive and the
Legislature, but there is no indication of the intention of the framers of the Constitution
regarding the effect of non-compliance with this Article. A question, therefore, arises whether
provisions of the Article are self-executing or mandatory or they are simply directory.

The question is, how to give effect to the provisions of Article 175(3)? Can it be enforced by
issuance of directions to the Executive without reference to the Legislature? What, if the
Executive fails to get the required majority of the members of the Legislature to pass laws in
order to give effect thereto? Can the Legislature be addressed by this Court by issuance of a
writ ? The Court can strike down a law as invalid, but can the Legislature be compelled to make
a law ? Article 175(3) is also silent as to the extent of the Executive's responsibility to give
effect to the provisions thereof. Apart from it the obligation cannot be carried out without
financial implications or working out of modalities for its implementation. Can the Executive
or the Legislature be compelled by issuance of a writ to discharge this constitutional obligation
within the specified time without taking into consideration the means and resources at their
command? No satisfactory answers can be found to these questions. It may be pointed out that
provisions which are incapable of being enforced cannot be construed as self-executing.
Therefore, neither Article 175(3) is enforceable nor it confers any power on High Court to issue
directions for its implementation.

(kk) Constitution of Pakistan (1973)--

---Arts. 175, 203, 2-A, 196, 200(1)(4), 203-C(4), (4-A), (4-B), 48 & 199--Provisions of Arts.
196, 200(1)(4), 203-C(4), (4-A), (4-B) & 48 are in direct conflict with the provisions of Art.175
and declaration enshrined in Art.2-A--These provisions, however, can always be available to
the Courts to expound the other provisions of the Constitution when executive actions are
impugned before them in individual cases.

(ll) Constitution of Pakistan (1973)--

---Arts. 203 & 199--Provision of Art.203 is general in terms and the power of supervision and
control with which it vests the High Court is an undefined power to be regulated by the law
made by the Parliament--High Court is not empowered under Art.203 to go either into the vires
of the Statute, or the rules or the notifications made or issued thereunder--Individual executive
actions can be tested on the touchstone of Art.203 of the Constitution, but no writ invalidating
any statute or any rule or notification, issued thereunder can otherwise be granted unless the
rule or the notification is ultra vires the statute under which it has been issued.

(mm) Constitution of Pakistan (1973)--

---.Art.199--Powers with which High Court has been vested under Art. 199.

According to clause (1)(a)(i) of Article 199 subject to the Constitution, a High Court may, if it
is satisfied that no other adequate remedy is provided by law, on the application of any
aggrieved party, make an order: "directing a person performing, within the territorial
jurisdiction of the Court functions in connection with the affairs of the Federation, a Province
or a local authority, to refrain from doing anything, he is not permitted by law to do, or to do
anything he is required by law to do. Paragraph (ii) further empowers the High Court to make
an order "declaring that any act done or proceeding taken within the territorial jurisdiction of
the Court by a person performing functions in connection with the affairs of the Federation, a
Province or a local authority, has been done or taken without lawful authority and is of no legal
effect". The above power of the High Court is akin to the power of the English Courts to issue
writs of certiorari and mandamus. Article 199 further empowers the High Court to issue writs
in the nature of habeas corpus and quo warranto but in view of the nature of the relief sought
in these petitions, reference to the same is unnecessary.
Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC
14; Jamal Shah v. Election Commission PLD 1966 SC 1; Province of East Pakistan v. Sirajul
Haq Patwari PLD 1966 SC 854 and Abul A'la Maudoodi v. Government of West Pakistan PLD
1964 SC 673 ref.

(nn) Words and phrases--

--- Words "law", "lawful" and "lawful authority"--Import and connotation.

Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139; Brig. (Retd.) F.B. Ali and
another v. The State PLD 1975 SC 506 and Rajkumar Nursing Pratap Singh Deo v . The State
of Orissa AIR 1964 SC 1793 ref.

(oo) Constitution of Pakistan (1973)--

---Arts. 175, 203 & 199--Whether provisions of Arts. 175 & 203 of the Constitution lay down
a course of conduct, requiring compliance--

Whether writ of general nature can be issued to grant relief in this behalf .

Article 175(3) is a non-self-executing provision, not capable of being enforced. Article 203 of
the Constitution is also wide and general in terms and the undefined power which it confers on
the High Court requires to be regulated by further legislation. Accordingly, these provisions
cannot be construed as laying down any law in terms of Article 199 or 4 of the Constitution.
The words "a person performing functions in connection with the affairs of the Federation or a
Province or a local authority", occurring in Article 199 are further indicative of the fact that
only executive actions can be subjected to a judicial review under Article '199 of the
Constitution and no writ of general nature can be issued. No writ can be issued by High Court
to grant any of the reliefs in this behalf sought in the petitions. The Courts are creatures of the
Constitution and no power can be exercised by them which has not been vested in them by the
Constitution.

(pp) Constitution of Pakistan (1973)--

---Arts. 268, 175 & 203--Whether High Court under Art.268, Constitution of Pakistan can issue
directions to the effect that statutes, rules or notifications issued which come in into conflict
with Art.175(3) or Art.203 of the Constitution of Pakistan should be read with necessary
adaptations to bring them into accord with Arts. 175 & 203.

It was contended that under Article 268(6) of the Constitution, the Courts are empowered to
construe an existing law with all such adaptations as are necessary to bring it into accord with
the provisions of the Constitution, notwithstanding the fact that no adaptation has been made
in such law by an order made under clause (3) or clause (4) of Article 268. Consequently, the
argument was that a direction can be issued by the High Court to the effect that the statutes,
the rules or the notifications issued thereunder which come into conflict with Article 175(3) or
Article 203 of the Constitution should be read with necessary adaptations to bring them into
accord with the aforesaid Articles.

Held, nothing could be spelt out from Article 268 to empower High Court to issue a writ as
contended. Firstly all the opening words in Article 268(6): "any Court, tribunal or authority
required or empowered to enforce an existing law" clearly indicate that this power could be
exercised only in a given case and not generally, secondly, no general direction could be issued
in this respect by the High Court.

(qq) Words and phrases--

--- "Control", "supervise", "supervisor", "superintendence"--Meaning and distinction.

(rr) Words and phrases--

---"Subversion"--Meaning, purport and import.

(ss) Due process of law--

--- Doctrine discussed.

(tt) Interpretation of statutes--

---Imperative and directory provisions in a statute--Distinction highlighted.

Syed Sami Ahmad, Sharaf Faridi, G.M. Qureshi for Petitioners. A.A. Muhammadally, Ali
Ahmed Fazeel, Khalid M.Ishaque and Muhammad Ali Sayeed: Amicus curiae.

Qadir H. Sayeed, Dy. Attorney-General & Abdul Khair Ansari for Respondents.

Dates of hearing: 20th, 21st, 22nd, 27th, 28th, 29th and 30th March, 1989.

JUDGMENT

AJMAL MIAN, C.J.--By this common judgment, I intend to dispose of the above two petitions.
The brief fact,; leading to the filing of the above petitions are as follows:-

C.P. No.D-123 of 1974:

The above petition, hereinafter referred to as the first petition, was filed on 6-2-1974 by the
Karachi Bar Association and M/s. Sharaf Faridi and Qazi Mahfooz Ahmed, the President and
the Vice-President respectively of Karachi Bar Association at that time whereby the petitioners
have prayed for the following reliefs:-

"P R A Y E R

The petitioners therefore pray as under:-

(a)??? That this Hon'ble Court be pleased to declare that the Sind Ordinance X of 1973, the
Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and the Notification dated
23-10-1973 are without lawful authority and of no legal effect and ultra vires of the
Constitution to the extent of inconsistency with, contradiction to and in violation of Articles 4,
14, 175 and 203 of the Constitution; and/or

(b)?? That this Hon'ble Court be pleased to restrain the Respondent from giving effect directly
or indirectly to the provisions of the impugned Ordinance and Rules made and the Notification
issued thereunder to the extent of inconsistency with, contradiction to and in violation of
Articles 4, 14, 175 and 203 of the Constitution; and/or
(c) That this Hon'ble Court be pleased to award costs of the petition;

(d) That this Hon'ble Court be pleased to grant such other relief as may be deemed necessary
and just in the Circumstances of the case."

C_P. No.D-891 of 1987:

The above petition, hereinafter referred to as the second petition, was filed on 2-9-1987 by the
4 Members of the Pakistan Bar Council whereby the petitioners had prayed for the following
reliefs:-
"P R A Y E R

That in view of what is stated hereinabove, it is, therefore,

prayed by the petitioners that this Hon'ble Court may be pleased to:-

(a)??? Direct the Respondent No.l to implement the provisions of Article 175(3) and to refrain
from taking any action or step in violation thereof;

(b)??? Direct the Respondent No.2 to refrain from assigning any executive duties or any work
in the nature of executive duties to the Members of the subordinate judiciary including all
Magistrates, Sub-Divisional Magistrates and District Magistrates and Additional District
Magistrates performing judicial duties at present;

(c)??? Direct the Respondent No.2 to take steps for forwarding/ transferring all matters
pertaining to the appointments, transfers, postings, promotions, removals, and dismissals of all
officers performing judicial functions within the Province of Sind to the superior judiciary i.e.
High Court of Sind forthwith or within such period this Hon'ble Court may determine;

(d)??????????? Declare that Articles 196(b), 200(1), 290(4), 203-C(4), (4-A) and (4-B) and
248 of the Constitution of Pakistan are in conflict with Article 2-A of the Constitution and
therefore inoperative and of no legal effect; and/or

(e)??? Grant such other/further/additional relief. or reliefs that this Hon'ble Court may deem fit
to grant in view of the nature and circumstances of the case."
During the pendency of the above petition an application for amendment of the petition was
filed which was allowed, in consequence whereof an amended petition was filed on 6-3-1989,
wherein inter alia in the prayer clause the following new para. as para. D-1 was added in
addition to the above-quoted paras. of the prayer. Above newly-added para. D-1 reads as
follows:

D-1)????????????? Declare that--

?????? (i)???? the Constitution (Fifth Amendment) Act, 1976 amending the original Article
196 of 1973 Constitution as well as the Revival of the Constitution of 1973 Order, 1985,
amending the amended Article 196 of 1973 Constitution,

(ii)?? the Constitution (Fifth Amendment) Act, 1976 adding proviso to Article 200 of 1973
Constitution as well as the Revival of the Constitution of 1973 Order, 1985 increasing the
period from one year to two years in the proviso so added by the Constitution (Fifth
Amendment) Act, 1976 and also the Constitution (Third Amendment) Order, 1985 in so far it
further amends Article 200 of 1973 Constitution,

(iii)???? the proviso to sub-Article (4) as well as sub-Article (5) of Article 203-C inserted
through the Constitution (Amendment) Order 1 of 1980 as well as the Constitution (Third
Amendment) Order No. 24 of 1985 in so far as it increases the period from one year to two
years in the proviso to sub-Article (4) of Article 203-C and also the addition /insertion of
sub-Articles (4-B) and (4-C) through the Revival of the Constitution of 1973 Order No.14 of
1985, are void, inoperative and of no legal effect inasmuch as the aforesaid amendments are
contrary to and inconsistent with one of the basic structures of 1973 Constitution that is the
"Independence of Judiciary" as enshrined in Article 2-A as well as in sub-Article (3) of Article
175 of 1973 Constitution;

It may be pointed out that the above first petition relates to the subordinate judiciary, whereas
the second petition covers superior judiciary as well as subordinate judiciary.

In my view the case of the superior judiciary stands on different footings from the case of the
subordinate judicary, and therefore, I intend to deal with the same separately.

2. M/s. Sharaf Faridi and G.M. Qureshi, petitioners Nos. 1 and 3 respectively in the second
petition, have submitted the arguments in support of their petition. We have also heard M/s.
Ali Ahmed Fazeel, Khalid M. Ishaque and Muhammad Ali Sayeed as Amicus Curiae, whereas
the Federation and the Provincial Government were represented by Mr. Qadir H. Sayeed,
learned Deputy Attorney-General and Mr. A.A. Muhammadally, learned Additional
Advocate-General. Mr. Abul Khair Ansari, Advocate also appeared in the case. According to
him he was instructed by the learned Attorney-General, whereas Mr. Qadir H . Sayeed,
submitted that he was instructed.

??? 3.???? Mr. Sharaf Faridi, who argued the case tenaciously in support of the second petition
submitted as follows:-

(i) That after the expiry of the period specified in Article 175 of the Constitution of the Islamic
Republic of Pakistan, hereinafter referred to as the Constitution, this Court is competent to
enforce the provisions of the above Article as to the separation of judiciary from the executive.

(ii)??? That the effect of ;he incorporation of the Objectives Resolutions by Article 2-A in the
Constitution is that this Court can strike down various provisions of the Constitution and of the
other enactments which may militate against the separation and independence of the judiciary.

(iii)???? That the amendments which have been made from time to time in the Constitution
from 1976 in the various Articles relating to the working of the superior judiciary affect the
basic structure of the Constitution inasmuch as they adversely affect the independence of
judiciary and, therefore, this Court is competent to strike down the said amendments.

(iv)?? That in case of subordinate judiciary apart from the Objectives Resolution and Article
175, Article 203 has been violated by the Provincial Government.

Mr. G. M. Qureshi has dilated upon more in detail on the question of change in the basic
structure of the Constitution.

Mr. Syed Sami Ahmed, appearing for the petitioners in the first petition, has submitted that the
petitioners through the first petition have impugned 3 legal instruments namely, Sind Civil
Servants Ordinance, 1973, which is now Act XIV of 1973, Sind Civil Servants (Efficiency and
Discipline) Rules, 1973 and Notification dated 9-10-1973
as being violative of Articles 175(3) and 203 of the Constitution.

Mr. Khalid M. Ishaque appearing as Amicus Curiae submitted as follows:-

(i) That there` is a distinction between jurisdiction of the superior Courts and of the subordinate
Courts inasmuch as, the former have jurisdiction in respect of all matters except those in respect
of which jurisdiction has been expressly taken away, whereas the latter have jurisdiction in
respect of the matters of which jurisdiction has been expressly conferred by law.

(ii)??? That after the expiry of the period mentioned in Article 175(3), this Court is competent
to grant relief as to effect the enforcement of the above Articles.

(iii)???? That in the Islamic concept the entire power is judicial power and, therefore, the
judiciary comes first whereas in the western concept the judiciary comes last.

Mr. Muhammad Ali Sayeed contended that on the basis of the state of pleadings in the second
petition, no relief can be granted. He further submitted that Article 175 is not a self-executory
Article but is of the nature of a declaratory Article like Article 4 of the C,)nstitution.

Whereas Mr. Ali Ahmed Fazeel has urged that after the expiry of the period, specified in clause
3 of Article 175 and thereafter after the expiry of a reasonable period, the Court by virtue of
clause 6 of Article 268 of the Constitution notwithstanding that no adaptations have been made
in the relevant laws, can construe the same with all such adaptations if a case is brought before
it.

Mr. Qadir H. Sayeed, learned Deputy Attorney-General, who appeared for the Federal
Government submitted that the Federal Government is not opposed to the implementation of
Article 175 but the modality as to how to implement it is to be worked out, and that no direction
can be issued to the legislature to legislate as it is a collective body which goes on changing.

Mr. A.A. Muhammadally learned Additional Advocate-General who appeared for the
Provincial Government submitted that the Provincial Government has no objection to the
implementation of Article 175 of the Constitution but it would require some time to implement
the same.

Mr. Abul Khair Ansari has drawn our attention to the separation of judiciary from the executive
brought about by Hazrat Umar Farooq.

4. Mr. Sharaf Faridi in furtherance of his above first submission that after the expiry of the
period specified in Article 175 of the Constitution of the Islamic Republic of Pakistan, this
Court is competent to enforce the provision of the above Article as to the separation of judiciary
from the executive has invited our attention to Article 175 and has contended that sub-clauses
(1) and (3) of the above Article are to be read in conjunction and, therefore, the superior as well
as subordinate judiciary should have been progressively separated from the executive within
14 years period, which expired on 14-8-1987. In this regard it may be pertinent to reproduce
the above Article, which reads as follows:

"175.--(1) There shall be a Supreme Court of Pakistan, a High Court for each Province and
such other Courts as may be established by law.

(2)??????? No Court shall have any jurisdiction save as is or may be conferred on it by the
Constitution or by or under any law.

(3)??????? The Judiciary shall be separated progressively from the Executive within fourteen
years from the commencing day".

It may be noticed that under clause (1) of above-quoted Article 175 it has been provided that
there shall be a Supreme Court of Pakistan, a High Court for each province and such other
Courts as may be established by law, whereas under clause (2) it has been laid down that no
Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by
or under any law. It may further be noticed that clause (3) provides that the Judiciary shall be
separated progressively from the Executive within fourteen years from the commencing day.
It will not be out of context to point out here that originally the period specified in the above
clause (3) was three years. This was substituted by the Constitution (Fifth Amendment) Act
No.LXII of 1976 to five years and then to 14 years by the President's Order No.14 of 1985.
There seems to be no doubt that sub-clause (3) of above-quoted Article 175 enjoins that the
Judiciary shall be separated progressively within a period of fourteen years. Mr. Sharaf Faridi's
contention that the term "Judiciary" employed in above clause (3) of Article 175 includes
superior Courts as well is not without force. But if we read the above clause keeping in view
the past judicial history of prepartitioned India the above clause is more aptly applicable to
subordinate judiciary, particularly to Magistracy.

Mr. Sharaf Faridi has vehemently urged that the separation of judiciary will include
independence in all financial matters, appointments and other administrative matters. He has
also invited our attention to Article 50 of the Indian Constitution contained in Part IV relating
to the Directive Principles of State Policy, which provides that "The State shall take steps to
separate the judiciary from the executive in the public services of the State". He has pointed
out that Article 175 of the Constitution is more positive in its nature and effect inasmuch as it
specifies the period, within which the judiciary was to be separated and that Article 50 of the
Indian Constitution is given in the Chapter of State Policy, whereas Article 175 of the
Constitution is a part of the operative part of the Constitution.
We enquired from Mr. Sharaf Faridi, as to whether anywhere in the world the judiciary has its
separate annual budget as to make it financially independent, his reply was that not to his
knowledge, but his submission was that there is no parallel provision in any of the Constitutions
of the world to that of Article 175 of the Constitution and, therefore, the factum that there is no
precedence for having independent annual budget for judiciary in any other country of the
world should not come in our way of holding that the separation of the judiciary as
contemplated in Article 175 of the Constitution and independence of the judiciary as envisaged
in the Objectives Resolution cannot be achieved without having independent annual budget for
the judiciary. In other words, the judiciary should generate its own annual income according to
its annual requirements. In my view, this may not be practicable. I am inclined to hold that the
requirements of above Article 175 will be met if the judiciary has effective say in formulation
of its annual demands. To put it differently, the executive should place annual funds as per
requirements at the disposal of the judiciary for operating it without being interfered with by
any agency of the Executive. Mr. Sharaf Faridi has submitted that even though in Indian Article
50 of the Indian Constitution is a part of Chapter IV containing State Policy but the effect to it
is given by the Indian Courts. In support of his above submission he has referred to the case of
Gurdial Singh v. The State AIR 1957 Punjab 149, the case of Balchand v. Mandsaur
Municipality AIR 1960 Madhya Pradesh 20 and the case of Jai Singh Pyara Singh v. Gram
Panchayat Singhanwala and another AIR 1965 Punjab 232.

In the first and third cases certain provisions of Punjab Gram Panchayat Act, 1952 and in the
third case section 187 of the Madhya Pradesh Municipalities Act, 1954 were tested as to their
validity in terms of Article 50 of the Indian Constitution and it was held that the said 'provisions
were not ultra vires.

In my view the above cases have no direct application to the instant cases. Mr. Faridi then
invited our attention to the case of Chandra Mohan v. State of Uttar Pradesh and others A I R
1966 S C 1987, in which the Indian Supreme Court while construing Article 233 of the Indian
Constitution which provided that, "Appointments of persons to be, and the posting and
promotion of, district judges in any State shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in relation to such State", held that the
exercise of the power of appointment by the Governor is conditioned by his consultation with
.the High Court, that is, he can only appoint a person to the post of District Judge in consultation
with the High Court and that the duty to consult is so integrated with the exercise of the power
that the power can be exercised only in consultation with the person or persons designated
therein.

He has further referred to the case of Union of India v. Sankalchand Himatlal Sheth and
another, AIR 1977 SC 2328, in which a sitting Judge of the Gujarat High Court was transferred
to the High Court of Andhra Pradesh in terms of Article 222 of the Indian Constitution which
provides that "The President may, after consultation with the Chief Justice of India, transfer a
Judge from one High Court to any other High Court within the territory of India and that when
a Judge is so transferred, he shall, during the period he serves as a Judge of the other Court, be
entitled to receive in addition to his salary such compensatory allowance as may be determined
by Parliament by law and, until so determined, such compensatory allowance as the President
may by order fix", the order of transfer was challenged. The High Court allowed the petition.
Appeal filed by the Union of India was not pressed before the Supreme Court but the learned
Judges delivered their judgments as the matter involved a question of public importance. The
majority view was that the power to transfer a High Court Judge is conferred by the
Constitution in public interest and not for the purpose of providing the Executive with a weapon
to punish a Judge who does not tow its line or who for some reason or the other has fallen from
grace. It was further held by the majority that the transfer of a High Court Judge to another
High Court cannot become effective unless the Chief Justice of India is consulted by the
President and such consultation should be meaningful. In other words, it was held that the
President cannot transfer a Judge of a High Court to another High Court unless it is in public
interest and unless the Chief Justice of India is consulted. However, the minority view written
by Bhagwati, J. did not dissent from the above conclusion but held that under the above Article
the transfer can be only consensual, that is, with the consent of the Judge. There is an elaborate
discussion in the majority and the minority judgment as to the reason for arriving at the above
conclusions. It may be advantageous to reproduce para. 43 from the majority view and the
relevant portion of para. 60 from the judgment of Bhagwati, J.

Para 43 from the judgment of majority:

"43. Article 222(1) postulates fairplay and contains built-in safeguards in the interests of
reasonableness. In the first place, the power to transfer a High Court Judge can be exercised in
public interest only. Secondly, the President is under an obligation to consult the Chief Justice
of India which means and requires that all the relevant facts must be placed before the Chief
Justice. Thirdly, the Chief Justice owes a corresponding duty. both to the President and to the
Judge who is proposed to be transferred, that he shall consider every relevant fact before he
tenders his opinion to the President, In the discharge of this constitutional obligation, the Chief
Justice would be within his rights, and indeed it is his duty whenever necessary, to elicit and
ascertain further facts either directly from the Judge concerned or from other reliable sources.
The executive cannot and ought not to establish rapport with the Judges which is the function
and privilege of the Chief Justice. In substance and effect, therefore, the Judge concerned
cannot have reason to complain of arbitrariness or unfairplay, if the due procedure is followed.
I must add that Mr. Seervai did not argue that the order of transfer is bad for non-compliance
with the principles of natural justice."

Relevant portion of para 60 from the judgment of Bhagwati, J,--

????????? "60,?????? I have, therefore, no doubt that when a Judge is transferred from one
High Court to another, he is appointed to the High Court to which he is transferred and it is
only when he assumes charge of the office of Judge of that High Court by making and
subscribing an oath or affirmation before the Governor of the State, that he ceases to be a Judge
of the High Court from where he is transferred. Now, it is difficult to believe that the
Constitution-makers could have never intended that appointment of a Judge to a High Court or
to the Supreme Court could be made without his consent. How would such appointment
become effective unless the Judge who is appointed makes and subscribes an oath or
affirmation before the Governor, in case of appointment to the High Court and before the
President, in case of appointment to the Supreme Court. And that would plainly be a matter
within the volition of the Judge. It is, therefore, obvious that the volition of the Judge who is
transferred is essential for making the transfer effective and there can be no transfer of a Judge
of a High Court without his consent. This is the position which emerges clearly from a
consideration of the conspectus of the relevant constitutional provisions."

Reference may also be made to the following cases which were relied upon by M/s. Sharaf
Faridi and G.M. Qureshi:

(i)???? Samsher Singh v. State of Punjab and another, AIR 1974 SC 2192, in which the Indian
Supreme Court while construing Article 235 of the Indian Constitution which provides that
"the control over District Courts subordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging to the judicial service of a State and holding any
post inferior to the post of District Judge shall be vested in the High Court; but nothing in this
Article shall be construed as taking away from any such person any right of appeal which he
may have under the law regulating the conditions of his service or as authorising the High
Court to deal with him otherwise than in accordance with the conditions of his service
prescribed under such law," held that the request by the High Court -to have the enquiry for
charges of misconduct against the member of the subordinate judicial service through the
Director of Vigilance was an act of self-abnegation and that the High Court should have
conducted the enquiry preferably through District Judge. It was further held that the members
of the subordinate judiciary look up to the High Court not only for discipline but also for
dignity, and that the High Court acted in total disregard of Article 235 of the Constitution by
asking the Government to enquire through the Director of Vigilance.

(ii)??? S.P. Gupta and others v. President of India and others, AIR 1982 S C 149. In the above
case a number of writ petitions were filed in different High Courts inter alia challenging the
various circulars /orders of the Government of India transferring Chief Justice/Judges from one
High Court to another, offering the Additional Judges of some High Courts to be the permanent
Judges of some other High Courts and not extending the period of certain additional Judges.
The above writ petitions were transferred to the Supreme Court of India under Article 139 as
they raised. issues of great constitutional importance affecting the independence of judiciary.
They were argued for 35 days. The judgment in the case runs into 500 printed pages. All the
Judges were unanimous on the point that the lawyers had interest and locus standi to file the
petitions and that consultation with constitutional functionaries must be meaningful and
result-oriented and that the proposal can emanate from any of the constitutional functionaries
and none of the constitutional functionaries can exercise veto to this matter. On the question
whether the opinion of the Chief Justice of India enjoys primacy over the other constitutional
functionaries, Gupta, Tulzapurkar and Pathak, JJ, held that primacy should be given to the
opinion of the Chief Justice of India, but the majority comprising of Bhagwati Desai, S.M.F.
Ali and Venkataramiah, JJ. held contrary. There was also unanimity of view that the transfer
of a Judge from one High Court to another must be in public interest and not by way of
punishment. It was further held by all the Judges except Bhagwati, J. that the consent of the
Judge concerned was not necessary. It was further held that while considering the question of
transfer personal inconvenience and language problem should also be taken into consideration.

(iii)???? State of Kerala v. A. Lakshmikutty and others AIR 1987 SC 331, in which the facts
were that the State Government had earlier resolved to appoint as District Judges four out of
the five persons recommended by the High Court but later on declined to appoint any of them
from the panel of names forwarded by the High Court on the ground of non ?representation of
candidates belonging to Latin-Catholics and Anglo-Indians, other backward classes and
Scheduled Castes. Upon writ petitions filed by the persons involved, Kerala High Court issued
a writ of mandamus to the State Government to act on the recommendation of the High Court
to fill up the five vacancies for the posts of District Judges reserved for district from the
practising members of the Bar under Article 233(1) of the Constitution. It was held by a
Division Bench that the advice tendered by the Council of Ministers to the Governor to reject
the panel of fourteen names forwarded by the High Court could be subject to judicial review.
Upon appeal filed by the State of Kerala, the Supreme Court set aside the judgment of the High
Court to the extent that the mandamus issued by the High Court was set aside. Instead the writ
in the nature of mandamus was issued to the State Government requiring it to communicate its
views to the High Court to elicit its opinion within six weeks on it from the date of judgment
if any and to make fresh efforts to find suitable candidates from the communities or groups of
communities passed over before taking a final decision in the matter. The State Government's
decision not to make appointments from the panel forwarded by the High Court and to re-notify
the vacancies was also quashed."

5. I may observe that the Indian Supreme Court while construing the above-referred Articles
of the Indian Constitution has inter alia evolved. the following principles of law:

(a)??? That the consultation by the Governor in respect of the appointments of persons to be
and the posting and promotion of District Judges with the High Court concerned in terms of
Article 233 of the Indian Constitution, is mandatory and the power can be exercised by the
Governor only in consultation with the High Court.

(b)?? That the High Court cannot divest or abnegate the power vested in it in relation to the
persons belonging to the judicial service of a State and holding post inferior to the post of
District Judge in respect of control, posting and promotion etc. in terms of Article 235 of the
Indian Constitution and it cannot get an enquiry of misconduct conducted by a Government
functionary.
(c)??? That the President can exercise the power to transfer a Judge from one High Court to
another High Court under Article 222 of the Indian Constitution if the following requirements
are complied with though the same have not been expressly provided in the above Article:

(i) That the transfer should be in public interest and not to punish the Judge.

(ii) That the President should consult the Chief Justice of India, which should be meaningful
inasmuch as all the relevant facts necessitating the transfer should be placed before the Chief
Justice.

(iii) That the Chief Justice should consider all the relevant facts before consenting to a transfer.

(iv) That the constitutional functionaries while having meaningful consultation cannot veto
each other.

(d)?? That the lawyers have interest and locus standi to challenge through a Constitutional
Petition an order of transfer or any other adverse order relating to a Judge of a High Court.

It may be observed that the relevant provisions of the Constitution pertaining to transfer of a
High Court Judge to another High Court and his appointment to the Federal Shariat Court are
referred to and discussed hereinbelow. However, it will suffice to observe that I am inclined to
hold that a transfer of a High Court Judge to another High Court or to the Federal Shariat Court
can only be made in the public interest and not for an object alien to the said object, and that
the question, whether a transfer is for a public interest is justiciable even at the behest of a
lawyer.

As regards the appointments of the Judges to the superior Courts, it was vehemently urged by
Mr. Sharaf Faridi that the appointments should be solely made on the recommendations of the
Chief Justice of Pakistan and the Chief Justice of the High Court concerned and that there
should not be any say in the above matter of the Executive. It was also submitted by him that
since under Articles 177, 182, the appointments of the Chief Justice of Pakistan and the Judges
of the Supreme Court are to be made by the President and so also of the Chief Justices and the
Judges of the High Courts under Articles 193 and 196 of the Constitution, the advice of the
Prime Minister contemplated in Article 48 is not required and that such advice will militate
against the concept of the separation and independence of the judiciary. Reliance was placed
on an unreported judgment, dated 21-12-1988 given by a Division Bench of the Lahore High
Court in Petition No.810 of 1988 holding that the appointment of 11 Additional Judges to the
said High Court without advice of the Prime Minister was legal. In this regard, it may be stated
that the above Articles 177, 188, 193 and 196 of the Constitution are in their original form
except as to the appointment of an Acting Chief Justice of the High Court. In my view, it is not
necessary to examine the above question any further in the instant cases. However, it will
suffice to observe that the consultation with the Chief Justice of Pakistan and the Chief Justice
of the High Court concerned by the President should be meaningful as observed in the
above-cited Indian Supreme Court cases.

As regards Mr. Sharaf Faridi's contention that the superior judiciary should be independent in
administrative matters, it may be stated that except in case of leave, the Judges of the superior
Courts can only be dealt with for misconduct or other disciplinary matters by. the Supreme
Judicial Council constituted under Article 209 of the Constitution.

6. This leads us to the question, whether upon the expiry of the period mentioned in clause (3)
of Article 175 of the Constitution, this Court can issue any direction in respect of the
appointment or the transfer of the Judges of the superior Courts or can it declare any provision
of the Constitution as ultra vires the Objectives Resolution or destructive to the basic structure
of the Constitution. In order to dilate upon the above complex issue, it may be pertinent to refer
to the relevant provisions of the Constitution which have been assailed by Mr. Sharaf Faridi in
the amended form:

(i)???? Article 196 of the Constitution which deals with the appointment of an Acting Chief
Justice of a High Court, originally provided that in case of vacancy or absence of a Chief Justice
of a High Court the President shall appoint the most senior of the other Judges of the High
Court to act as Chief Justice. The above provision was amended by Constitutional (Fifth
Amendment) Act, 1976, Act LXII of 1976, hereinafter referred to as the Fifth Amendment and
in place of the words "the most senior of other Judges of the High Court" the words "one of the
Judges of the High Court who have not previously held the Office of Chief Justice of the High
Court otherwise than under this Article", were substituted, which remained intact till today.

(ii)??? Clause (1) of Article 200 originally provided, that the President may transfer a Judge of
a High Court from one High Court to another High Court, but no Judge shall be so transferred
except with his consent, and after consultation by the President with the Chief Justice of
Pakistan and the Chief Justices of both High Courts. To the above clause (1) a proviso was
added by the Fifth Amendment, providing that "provided that such consent or consultation with
the Chief Justices of the High Courts, shall not be necessary if such transfer is for a period not
exceeding one year at a time". It may be observed that explanation to the above proviso
provides that in this Article "Judge" does not include a "Chief Justice". It may further be stated
that by President's Order No.14 of 1985 in place of the period of one year, period of two years
was substituted in the above-added proviso by the Fifth Amendment and clause (2) of above
Article 200 was also substituted providing that "where a Judge is so transferred or is appointed
to an office other than that of Judge at a place other than the principal seat of the High Court,
he shall, during the period for which he serves as a Judge of the High Court to which he is
transferred, or holds such other office, be entitled to such allowances and privileges, in addition
to his salary, as the President may, by Order, determine". It may further be stated that
sub-clause (3) to above Article 200 was added by Constitution (First Amendment) Act, 1974
(33 of 1974) with effect from 4-5-1974 providing that, "If at any time it is necessary for any
reason to increase temporarily the number of Judges of a High Court, the Chief Justice of that
Court may require a Judge of any other High Court to attend sittings of the former High Court
for such period as may be necessary, and while so attending the sittings of the High Court, the
Judge shall have the same power and jurisdiction as a Judge of that High Court." Whereas the
explanation referred to hereinabove providing that High Court include Bench of a High Court
was added by President's Order No.14 of 1985 and clause (4) was incorporated by the
President's Order No.24 of 1985 which provided that "A Judge of a High Court who does not
accept transfer to another High Court under clause (1) shall be deemed to have retired from his
office and, on such retirement, shall be entitled to receive a pension calculated on the basis of
length of his service as Judge and total service, if any, in the service of Pakistan".

It may not be out of context to mention that under Article 7 of the Provisional Constitution
Order, 1981 (hereinafter referred to as the PCO) Benches for the High Courts in the Provinces
were constituted, namely, for Lahore High Court a Bench each at Bahawalpur, Multan and
Rawalpindi, High Court of Sind a Bench at Sukkur, Peshawar High Court a Bench each at
Abbottabad and Dera Ismail Khan and High Court of Baluchistan a Bench at Sibi. Clause (5)
of Article 7 of the Provisional Constitution Order provided that a Bench shall consist of such
of the Judges of the High Court as may be nominated by the Chief Justice from time to time
for a period of not less than one year.

It may also be stated that a new Chapter 3-A was added in the Constitution by President's Order
No.l of 1980, in May 1980 adding new Articles 203-A, 203-B, 203-C, 203-D, 203-E, 203-F,
203-G, 203-H, 203-I and 203-J creating a new Court by the name of Federal Shariat Court and
also providing appeal to the Shariat Appellate Bench of the Supreme Court. It may be pertinent
to state that under Article 203-C of the newly?added Articles a Judge of a High Court could be
appointed for a period not exceeding one year without his consent as a Judge of the Federal
Shariat Court which period was extended to two years by President's Order No.24 of 1985. It
may further be observed that under clause (5) of above Article 203-C it has been provided that
a Judge of a High Court who does not accept appointment as a Judge of the Federal Shariat
Court shall be deemed to have retired from his office and, on such retirement shall be entitled
to receive a pension calculated on the basis of the length of his service as Judge and total
service, if any, in the service of Pakistan.

I may observe that 1973 Constitution was framed with consensus of all the political parties and
the members of the National Assembly. It contemplated trichotomy of power between the three
organs of the State, namely, the legislature, the executive and the judiciary. Each organ of the
State was to function /operate within the bounds specified in the Constitution. The judiciary
was assigned very important role to play, namely, to act as the Watch Dog and to ensure that
none of the organs or the Government functionaries acts in violation of any of the provisions
of the Constitution or of any other law. Since the above role entrusted to the judiciary under
the Constitution was very delicate, it was envisaged that the judiciary would be independent
and separate from the other organs of the State. But the above amendments/ additions in the
Constitution were made from time to time to keep the judiciary docile and subservient. The
introduction of the provision for transfer of a High Court Judge to another High Court without
his consent under the Fifth Amendment for one year then under President's Order No.14 of
1985 for 2 years and so also appointment of a High Court Judge to the Federal Shariat Court
without his consent for the above period, at the peril of his being stand retired, in case of his
refusal to accept transfer or appointment, or the provision relating to the nomination of a High
Court Judge to any of its Benches, created under the PCO for a minimum period of one year
are the amendments /additions which militate against the concept of the
independence/separation of judiciary, as envisaged by the Constitution.

7. Thus the question arises, whether the above amendments/ additions to the Constitution can
be struck down either being violative to the Objectives Resolution which has become part of
the Constitution because of incorporation of Article 2-A or being destructive to the Basic
Structure of the Constitution.

Prior to incorporation of Article 2-A by President's Order No.14 of 1985 the Objectives
Resolution was used as a preamble to 1956 Constitution, 1962 Constitution, the Interim
Constitution of 1972 and 1973. In the case of Miss Asma Jilani v. The Government of the
Punjab and another reported in PLD 1972 SC 139, Hamoodur Rehman, C.J. observed that:

"In any event, if a grund norm is necessary for us I do not have to look to the Western legal
theorists to discover one.
,,????????? Our own grund norm is enshrined in our own doctrine that the legal sovereignty
over the entire universe belongs to Almighty Allah alone, and the authority exercisable by the
people within the limits prescribed by Him is a sacred trust. This is an immutable and
unalterable norm which was clearly accepted in the Objectives Resolution passed by the
Constituent Assembly of Pakistan on the 7th of March, 1949. This Resolution has been
described by Mr. Brohi as the "cornerstone of Pakistan's legal edifice" and recognised even by
the learned Attorney-General himself "as the bond which binds the nation" and as a document
from which the Constitution of Pakistan "must draw its inspiration". This has not been
abrogated by any one so far, nor has this been departed or deviated from by any regime, military
or civil. Indeed, it cannot be, for, it is one of the fundamental principles enshrined in the Holy
Qur'an.

It may be pertinent to point out that in a subsequent case the effect of the Objectives Resolution
and of the above-quoted observation in the above case of Miss Asma Jilani in relation to the
Objectives Resolution came up for consideration before the supreme Court namely, in the case
of the State v. Zia-ur-Rehman and others reported in P L D 1973 S C 49. Hamoodur Rahman,
C.J. observed as follows:

"Having said this much about the constitutional position of the Courts and their relationship
with the other equally important organ of the State, namely the Legislature, it is now necessary
to examine as to whether any document other than the Constitution itself can be given a similar
or higher status or whether the judiciary can, in the exercise of its judicial power, strike down
any provision of the Constitution itself either, because, it is in conflict with the laws of God or
of nature or of morality or some other solemn declaration which the people themselves may
have adopted for indicating the form of Government they wish to be established. I for my part
cannot conceive of a situation, in which, after a formal written Constitution has been lawfully
adopted by a competent body and has been generally accepted by the people including the
judiciary as the Constitution of the country, the judiciary can claim to declare any of its
provisions ultra vires or void. This will be no part of its function of interpretation. Therefore,
in my view, however solemn or sacrosanct a document, if it is not incorporated in the
Constitution or does not form a part thereof it cannot control the Constitution. At any rate, the
Courts created under the Constitution will not have the power to declare any provision of the
Constitution itself as being in violation of such a document. If in fact the document contains
the expression of the will of the vast majority of the people, then the remedy for correcting
such a violation will lie with the people and not with the judiciary. It follows from this that
under our own system too the Objectives Resolution of 1949, even though it is a document
which has been generally accepted and has never been repealed or renounced, will not have the
same status or authority as the Constitution itself until it is incorporated within it or made part
of it. If it appears only as a preamble to the Constitution, then it will serve the same purpose as
any other preamble serves, namely, that in the case of any doubt as to the intent of the
law-maker, it may be looked as to ascertain the true intent, but it cannot control the substantive
provisions thereof. This does not, however, mean that the validity of no Constitutional measure
is adopted in a manner different to that prescribed in the Constitution itself or is passed by a
lesser number of votes than those specified in the Constitution then the validity of such a
measure may well be questioned and adjudicated upon. This, however, will be possible only in
the case of a Constitutional amendment but generally not in the case of a first or a new
Constitution, unless the powers of the Constitution-making body itself are limited by some
supra ?Constitutional document.

It is contended on behalf of the respondents that this Court has, in the case of Asma Jilani v.
The Government of the Punjab P L D 1972 S C 139, already declared that the Objectives
Resolution adopted by the first Constituent Assembly of Pakistan on the 7th of March 1949, is
the "grund norm" for Pakistan and, therefore, impliedly held that it stands above even the
Interim Constitution or any Constitution that may be framed in the future. I regret to have to
point out that this is not correct."

The view found favour with the Honourable Supreme Court in the above Ziaur Rahman's case
was reiterated in the case of Federation of Pakistan though the Secretary, Ministry of Finance,
Government of Pakistan, Islamabad etc. v. United Sugar Mills Ltd. and others PLD 1977 SC
397 and the case of Fauji Foundation and another v. Shamimur Rehman, PLD 1983 SC 457.

In the former case it has been held that, "In Pakistan, this Court in the case of Ziaur Rehman
PLD 1973 SC 49 has however firmly laid down the principle that a constitutional provision
cannot be challenged on the ground of being repugnant to what are sometimes stated as
"national inspirations" or an "abstract concept" so long as the provision, is passed by the
competent Legislature in accordance with the procedure laid down by the Constitution, or a
supra? constitutional instrument". Whereas in the latter case the learned Chief Justice of
Pakistan reaffirmed the view taken in the above Ziaur Rehman's case after referring to some of
the cases of the Indian Supreme Court. The position which has emerged from the above-cited
cases is, that the Honourable Supreme Court of Pakistan's view has been consistently that a
constitutional provision. cannot be assailed on the ground that it was against the Objectives
Resolution or to put it differently against ground norm. However, it may be pointed out that
the above judgments pertain to the period prior to the incorporation of Article 2-A of the
Constitution by President's Order No.14 of 1985, which was promulgated on 2-3-1985, which
provides that "The principles and provisions set out in the Objectives Resolution reproduced
in the Annex are hereby, made substantive part of the Constitution and shall have effect
accordingly." The question, therefore, arises whether the above incorporation entitles the Court
to declare any of the provisions of the Constitution as being ultra vines.

Mr. Sharaf Faridi pa's vehemently contended that the Objective Resolution is a
supra-constitutional provision, whereas Mr. Khalid M. Ishaque appearing as amicus curiae has
contended that the Objectives Resolution has now become part of the Constitution and,
therefore, is to be given effect. He has not urged that it is a supra-constitutional provision. It
will suffice to observe that Article 270-A which was originally incorporated by President's
Order No.14 of 1985 was substituted by Act No.XVIII of 1985 with effect from 30-12-1985
whereby the National Assembly and the Senate reaffirmed the various amendments made in
the Constitution. In the case of Federation of Pakistan and another v. Malik Ghulam Mustaf
Khar and others reported in P L D 1989 S C 26 Full Bench comprising of the learned Chief
Justice and nine learned Judges of the Supreme Court proceeded on the assumption that Article
270-A was competently incorporated. In this view of the matter, I am inclined to hold that it is
not open to E this Court to hold that any of the constitutional provisions is violative of the
Objectives Resolution.

8. As regards the submission that the aforesaid amendments in the Constitution were
destructive to the basic structure of the Constitution, it may be observed that Mr. G.M. Qureshi
has relied upon the Indian Supreme Court's judgments in support of his submission. In this
regard, it may be mentioned that in the case of Shankari Prasad v. Union of India A I R 1951
S C 458 the Indian Supreme Court held that the amendment of the Constitution curtailing
fundamental rights contained in Part III of the Indian Constitution passed by the Parliament
was valid. The aforesaid view was reaffirmed by the Indian Supreme Court in the case of Sajjan
Singh v. State of Rajasthan A I R 1965 S C 845. However, the above view was overruled by
the Indian Supreme Court in the well-known case of L.C. Golak Nath and others v. State of
Punjab and another A I R 1967 S C 1643 in which it was held that the Indian Parliament was
not competent to curtail any of the fundamental rights provided in above Part III of the Indian
Constitution. The above view had come up for consideration before the Indian Supreme Court
in the case of His Holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala
and another, in connection with the Constitution 24th Amendment Act which was passed by
the Indian Parliament to get over the above decision of the Indian Supreme Court in Golak
Nath's case. A Special Bench of 13 Judges unanimously upheld the constitutional validity of
the aforesaid Constitution 24th Amendment Act, 1971 and in doing so it overruled its earlier
judgment in Golak Nath's case. It further held that all Articles including those relating to
fundamental rights can be amended provided that the basic structure and framework of the
Constitution are not altered. According to the Indian Supreme Court in the above case the
following were the basic structure and framework of the Indian Constitution:

(i) Supremacy of the Constitution;

(ii)??????? Republican and Democratic form of Government;

(iii)?????? Secular character of the Constitution;

(iv)?????? Separation of powers between the legislature, the executive and the judiciary;

(v)??????? Federal character of the Constitution.

The above view was reaffirmed in the subsequent cases by the Indian Supreme Court. In this
regard, reference may be made to the case of Smt. Indira Nehru Gandhi v. Raj Narain, reported
in A I R 1975 S C 2299, in which clauses (4) and (5) inserted in Article 329 by Constitution
39th Amendment Act of 1975 were assailed. It may be stated that clause (4) purported to deny
the right of appeal against. an election to the Parliament. It was held that the same was liable
to be struck down on the ground that it violated the principle of free and fair election which
was an essential postulate of democracy and which in its turn was a part of the basic structure
of the Constitution.

I may observe that in the above Fauji Foundation case P L D 1983 S C 457 some of the above
judgments of the Indian Supreme Court were considered but the honourable Supreme Court
has not accorded its approval to the above doctrine of basic structure and framework of the
Constitution. In my view, the present cases do not involve the question of change .in the basic
structure and framework of the Constitution as the amendments in the aforesaid Articles
relating to judiciary cannot be said to have altered the basic structure of the Constitution
pertaining to the working of the judiciary. It is, therefore, not necessary to dilate upon the above
question any further. The upshot of the above discussions is that we cannot declare any of the
constitutional provisions as ultra vires in the instant petitions.

9.???????? This leads us to the question of subordinate judiciary. In this regard, it may be
pertinent to point out that Hamoodur Rahman's Report in connection with the Law Reforms
Commission (1967 to 1970) has thoroughly dilated upon historical background on the question
of separation of judicial and executive functions and pointed out that originally the above
functions were combined and were to be performed by the same person. In the last quarter of
the 18th Century, the then Governor-General, Lord Cornwallis introduced the first change
whereby the Revenue Collectors were debarred from trying revenue cases on the ground that
the same officers who assessed the revenue should not hear complaints against their own
assessment as it was against the basic principle of justice that one should not be a Judge in
one's own cause. In 1831 civil judicial functions were separated from the magisterial functions
and in each district a Civil Judge was appointed for the performance of civil judicial functions
but the Magistracy remained combined. A number of Committees and Schemes were prepared
to separate judicial and executive functions, reference to which has been made in detail in the
above report. In the above report it has also been pointed out that in .erstwhile East Pakistan
the Provincial Assembly passed Code of Criminal Procedure (East Pakistan Amendment) Bill,
1956 effecting a complete separation by creating two classes of Magistrates, Executive
Magistrates and Judicial Magistrates: The Executive Magistrates were placed under the District
Magistrates whereas the Judicial Magistrates were placed under the High Court through the
District and Sessions Judges and they were to be appointed in consultation with the High Court
like other judicial officers. In conclusion it was suggested that there should be complete
separation of judiciary from the executive and that the pattern envisaged by the Code of
Criminal Procedure (East Pakistan Amendment) Act, 1957 should be adopted in West Pakistan,
in respect of Magistracy.

In pursuance of the above Law Commission Report, Law Reforms Ordinance, 1972 (Ordinance
No.XII of 1972) (hereinafter referred to as the Ordinance No. XI1 of 1972) , was promulgated
on 14-4-1972 providing various amendments in the various enactments including in Pakistan
Penal Code. Criminal Procedure Code, Evidence Act etc. Subsection; (2) section 1 of the above
Ordinance provided that it shall come into force a? provision, of the Schedule relating to
amendments in the Code of criminal Procedure, 1898 which shall come into force in any
province with effect from such date not later than the first day of January 1973 as the Provincial
Government may by notification in the official Gazette specify in this behalf. The above target
date 1-1-1973 was amended and no time limit within which the Provincial Government was to
enforce the provisions of the Cr.P.C. remained in the field. The above Ordinance XII of 1972
provided creation of two categories of the Magistrates, namely Special Judicial and Executive
Magistrates. Amended section 14, Cr.P.C contemplated that the Provincial Government may
on the recommendation of the High Court confer upon any person all or any of the powers
conferred or conferable by or under this Code of a judicial Magistrate in respect of particular
cases or to a particular class or particular classes of cases. It further provided that the Provincial
Government may appoint Executive Magistrates for particular areas or for performance of
particular functions and confer upon them all or any of the powers conferred or conferable by
or under the Code on an Executive Magistrates whereas substituted subsections (1) and (2) of
section 17 of the Cr.P.C. envisaged that all Judicial Magistrates appointed under sections 12,
13 and 14 shall be subordinate to the Sessions Judges who may from time to time make rules
or give special orders consistent with the Code ant any rule framed thereunder whereas the
Executive Magistrates were to be subordinate to District Magistrate. The necessary
amendments in the other provisions of the Cr.P.C. were also made in order to facilitate the
separation of the judicial. Magistrates from the Executive Magistrates. In the above Ordinance
XII of 1972, two other amendments which are worth mentioning, are, one relating to
empowering a Sessions Judge to transfer cases from the file of a Magistrate to another
Magistrate, namely, section 528 and the incorporation of section 439-A conferring revisional
power on the Sessions Judges. The provisions of the above Ordinance were no; enforced in the
Province of Sind by issuing requisite Notification as was contemplated under subsection (2) of
section 1 of the said Ordinance. It appears that Ordinance No.l4 of 1975 was promulgated by
the Federal Government converted into Law Reforms (Amendment) Act, 1976, which was
made applicable to whole of Pakistan which inter alia incorporated clause (1-C) in section 528
providing that "any Sessions Judge may withdraw any case from, or recall any case which he
has made over to any Magistrate subordinate to him, and may refer it for inquiry or trial to any
other such Magistrate competent to enquire into or try the same. It may also be stated that
explanation to newly-added clause provided that "all Magistrates shall be deemed to be
subordinate to the Sessions Judge for the- purposes of this subsection.

After 2 days from the date of promulgation of the Ordinance by the Federal Government, the
Sind Government issued Notification under subsection (2) of section I of Ordinance XII of
1972 on 23-12-1975 enforcing the provisions mentioned therein relating to Cr.P.C. which inter
alia included section 439-A, Cr.P.C. empowering the Sessions Judge to exercise revisional
jurisdiction over the Magistrates. However, the provisions relating to the establishment of
Judicial and Executive Magistrates separately were not included in the above Notification nor
they have been enforced till today. It will not be out of context to mention that in 1952 Justice
(retired) Din Muhammad, who was the then Governor of Sind converted all posts of City
Magistrates, Additional City Magistrates .and Resident Magistrates in Sind into posts of Civil
Judges and 1st Class Magistrates and brought, the incumbents in the cadre of Civil Judges and
placed them under direct control of the District Judge and of the High Court. In other words,
in the interior of Sind Civil Judges exercise the power of 1st Class Magistrates but
unfortunately there are still Magistrates in the interior of Sind exercising executive and judicial
powers jointly.

10.???????? Apart from Article 175, we have Article 203 of the Constitution which provides
that "each High Court shall supervise and control al: Courts subordinate to it'". There were
corresponding Articles in the earlier Constitutions. namely, 205, 102. 177 in the Interim
Constitution of 1972, 1962 Constitution and of 1956 Constitution, respectively. There is similar
provision in the Indian Constitution, namely, Article 22; , There was also
corresponding? provision in the Government of India Act, 1935, namely, Article 224. It has
been vehemently urged by M/s. Sharaf Faridi and Syed Sami Ahmad that the effect of the above
Article 175 read with Article 203 of the Constitution is that subordinate judiciary is to be
exclusively under the judicial and administrative control of the High Court.
Mr. Sharaf Faridi has referred to the provisions of the West Pakistan Civil Courts Ordinance,
1962, hereinafter referred to as the Ordinance, particulars sections 4, 5, 6 and 8. It may be
observed that section 4 provides that "For the purposes of this Ordinance, Government may,
by notification, divide the Province into civil districts, fix the limits of such districts and
determine the headquarters of each. such district". It may further be noticed that section 5
provides that "Government shall, in consultation with the High Court, appoint as many persons
as it thinks necessary to be District Judges and post a District Judge to each district. It further
provides that the same person may be appointed to be District Judge of two or more districts.
It may further be pointed out that section 6 provides that "Government may, in consultation
with the High Court, appoint as many Additional District Judges as may be necessary".
Whereas section 8 lays down that the Government may, in consultation with the High Court
fix the number of Civil Judges to be appointed, make rules prescribing qualifications for
recruitment of persons as Civil Judges and appoint as many Civil Judges as may be deemed
necessary. He has also referred to the various provisions of the Criminal Procedure Cods,
hereinafter referred to as the Code, section 7 of which inter alia provides that "Each Province
shall consist of Sessions Divisions. and every Sessions Division shall, for the purposes of this
Code, be a district or consist of districts and that the Provincial Government may alter the limits
or the number of such divisions and districts. Section 8 inter alia lays down that the Provincial
Government may divide any district into sub-divisions, or make any portions of any such
district a sub-division and may alter the limits of any sub-division. Section 9 inter alia provides
that the Provincial Government shall establish a Court of Session foe every sessions division
and appoint a Judge of such Courts. Section 10 which inter alia lays down that in every district
the Provincial Government shall appoint a Magistrate of the First Class who shall be called the
District Magistrate and may appoint any Magistrate of the First Class to be an Additional
District Magistrate. Sections 11, 12, 13, 15, 16 and 17 provide for appointment of subordinate
Magistrates, conferment of powers on them. classification of the cases to be tried etc. Sections
22, 22-A, 22-B end 25 relate to the appointment of Justices of the Peace with certain judicial
powers.

It was vehemently urged by Mr. Sharaf Faridi that the above provisions are violative of Articles
175 and 203 of the Constitution as the powers which are being exercised by the Provincial
Government under the above various sections of the Ordinance and the Code should be
exercised by the Chief Justice of the High Court or by the High Court.

Whereas Mr. Syed Sami Ahmad has dilated upon in detail as to the administrative control of
the High Court and has vehemently urged that the subordinate judiciary by virtue of above
Articles 17j and 203 is under the administrative control of the High Court and the provisions
contained in the Sind Civil Servants Act, 1973, hereinafter referred to as the Act, Sind Civil
Servants (Efficiency and Discipline) Rules, 1973, hereinafter referred to as the Rules and the
Notification. dated 19--10-1973 gazetted on 23-10-1973 appointing the Chief Secretary as the
Authorised Officer inter alia for the District and Sessions Judges and Additional District and
Sessions Judges are of no legal effect and ultra vires the Constitution to the extent of
inconsistency.

He has also invited our attention to the Notifications dated 8-11-1960 and 22-4-1970 issued
under the High Court of West Pakistan Delegation of Powers Rules: 1960 and notification,
dated 19-10-1973 in order to urge that under the earlier notifications the Chief Justice was
exercising the administrative power whereas under the impugned notification, dated
19-10-1973 gazette, on 23-10-1973 the Chief secretary has been notified as the Authorised
Officer under sub-rule (3) of rule 2 of the Rules. It may be pertinent to point out that the latter
notification was modified after the filing of the first petition by a Notification, dated 19-9-1974
under above sub-rule (3) of rule 2 of the Rules in place of 'Chief Secretary' 'Chief Justice' was
notified as the authorised officer in respect of District and Sessions Judges, Additional District
and Sessions Judges, Senior Civil Judges and Assistant Sessions Judges and Civil Judges.

Mr. Sam!, learned counsel for the petitioner in the first petition has also referred to the
following cases:

(i)???????? State of Haryana v. Inder Prakash Anand and others A I R 1976 S C 1841, in which
the Indian Supreme Court while construing Articles 311 and235 of the Indian Constitution held
that the control which is vested in the High Court is complete control subject only to the power
of the Governor in the matter of appointment including dismissal, removal, reduction in rank
and the initial posting and of the initial promotion to District Judges. It has been further held
that there is nothing in ????????? Article 235 to restrict the control of the High Court in respect
of Judges other than District Judges in any manner ????????? and that the High Court has
administrative, judicial and disciplinary control over the members of the judicial service. It was
further held that the recommendation of the High Court as to the retirement of District Judge
under Article 311 was binding on the Government.

(ii)??????? Chief Justice of Andhra Pradesh and another v. L.V.A.? Dikshitulu ?????? and
others A I R 1979 S C 193. In the above case the ?????? Indian Supreme Court while construing
Article 229 of the Indian??????????? Constitution held that the word 'appointment' used in the
above Article vests in the Chief Justice the whole power. ?????????? Whereas while construing
Article 235, it has been held by the Indian Supreme Court that the control over the subordinate
judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in
extent and effective in operation, in as much ???? as it comprehends wide variety of matters.
Among others it includes disciplinary jurisdiction ? and a complete control subject only to the
power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of
the District Judges and that the Word 'control' is accompanied by ?? the word 'vest' which
shows that the High Court alone is made the sole custodian of the control over the judiciary
and that the High Court has the power to pass an order in relation to subordinate judiciary
relating to suspension, transfer, recall of District Judges, award of selection grade, confirmation
of ???????? District Judges and premature or compulsory retirement etc.
Syed Sami Ahmad has also referred to the other two cases of the Indian Supreme Court reported
in A I R 1966 S C 1987 and AIR 1976 S C 1841, which have already been referred to
hereinabove and discussed.

Mr. Khalid M. Ishaque has referred to the case of Abdul Rehman v. Mst. Chaman Ara P L D
1972 Kar. 164, the case of Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind
and Baluchistan and another P L D 1971 S C 677 and the case of Mst. Tahseen Akhtar v.
Mahmood-ul-Hassan P L D 1971 Lah. 875, as to the interpretation of Article 102 of the late
Constitution of 1962 which was the corresponding provision to the present Article 203, as
pointed out hereinabove.

In the first case of Abdul Rehman v. Mst. Chaman Ara P L D 1972 Kar. 164, a Full Bench
comprising of the learned Chief Justice and two Judges held that under Article 102 the High
Court cannot interfere with order and judgment of lower Court but it has power to supervise
and control the Courts subordinate to it in order to guide, check and encourage them.

In the second case of Shahnaz Begum P L D 1971 S C 677 the Honourable Hamoodur Rehman,
C.J. held that the High Court has no power of supervision or control over investigating agencies
for the power of superintendence which is given by Article 102 of the Constitution of 1962 is
only in respect of all other Courts that are subordinate to it.

Whereas in the above third case of Tahseen Akhtar P L D 1971 Lah. 875, a learned Single
Judge of the Lahore High Court has held that under Article 102 of the late Constitution of 1962
the power of Judicial control is to be used more sparingly and in appropriate cases in order to
keep the subordinate Courts within the bounds of their authority.

In my view the above cases are not directly on the point. It may be observed that the High
Court exercises supervisory jurisdiction of two types i.e. judicial which is conferred on the
High Court by virtue of Article 199 of the Constitution, provisions in the Civil Procedure Code,
Criminal Procedure Code and the other relevant enactments either as an Appellate Court or
Revisional Court and the second type of supervisory jurisdiction is administrative.

In my view Article 203 relates more to administrative aspect than the judicial aspect as has
been held in the above Karachi case of the Full Bench. The members of the Full Bench
comprised of Qadeeruddin Ahmed, C.J., Abdul Kadir Shaikh and Muhammad Haleem, as their
Lordships then were.
Reference may also be made to the case of Karim Bakhsh v . Mst. Mubarik Jan reported in P
L D 1970 Pesh. 169, in which a Division Bench of erstwhile High Court of West Pakistan
comprising of Qadeeruddin Ahmad, C.J. and Nasim Hasan Shah, J. as his Lordship then was,
held while construing above Article 102 of 1962 Constitution, that the power is meant to enable
the High Court to discharge its duties as a Superior Court towards fair and proper
administration of justice, and that the High Court has the authority to check and prevent
dereliction of duty and to stop as well as correct violations of law. Reference was made to the
Privy Council's observation that the power of superintendence includes the authority to direct
inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice.
The relevant portion of the above observation in the above case reads as follows:

"As observed in Emperor v. Tarapore A I R 1940 Sind 230 at p. 244 "superintendence" includes
the power to guide, advise and encourage Judges of the subordinate Courts. According to the
Allahabad High Court "superintendence" includes the power to direct subordinate Courts and
tribunals to carry out its orders vide Sant Lal Mahadeo Prasad v. Kedar Nath A I R 1935 All.
519. According to their Lordships of the Frivy Council this includes the authority to direct
inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice.
See Rajkumar v. Ramsundar AIR 1932 PC 69. The observations made in certain judicial
pronouncements, while discussing the scope of section 107 of the Government of India Act,
1915, and Article 227 of the Indian Constitution which provisions are in many ways to the
same effect as the provisions of Article 102 of our Constitution of 1962, indicate that the
purpose of these provisions is not to convert the High Courts into Courts of Appeal or of
revision--See Jalaluddin v . Jalaluddin 1962 S C (C.A. 602/61) and Rajkamal v. Indian Motion
Pictures Union 1962 S C (C.A. 622/61), cited in Basu's Commentary on the Constitution of
India, 4th Edn., Vol. IV, p.6. We respectfully agree with this view and our reason for holding
this view is that this supervision and control is for making and keeping the administration of
justice pure and not to help any particular party. This duty can be performed irrespective of
whether anybody has been harmed or not and irrespective of whether anybody will be benefited
by it or not."

Reference may also be made to the Ballentine's Law Dictionary, Third Edition and Black's Law
Dictionary, Fifth Edition for the meaning of the words 'control' and 'supervise'.

?????????????????????????????????????? ?BALLENTINE'S LAW DICTIONARY

'Control': Verb. To check, restrain, govern, have under command and authority. Wolffe v. Loeb
98 Ala 426, 432 Noun: A position of authority in direction and management.

'Supervise'. To exercise oversight. To keep under inspection.

See Superintendence.

'Superintendence': Oversight, inspection, supervision. Moffitt v. Asheville, 103 NC 237, 9 SE

695. Care and oversight for the purpose of direction, and with authority to direct. The act of
superintending.

"The word seems properly to imply the exercise of some authority or control over the person
or thing subjected to oversight." Dantzler v. De Bardeleben Coal & Iron Co. 101 Ala 309, 14
So 10.

?????????????????????????????????????????? BLACK'S LAW DICTIONARY

'Control?: v. To exercise restraining or directing influence over To regulate; restrain; dominate;
curb; to hold from action; overpower; counteract; govern.

'Control': n. power or authority to manage, direct, superintend, restrict, regulate, govern,

administer, or oversee. The "control" involved in determining whether "principal and agent
relationship" or "master and servant relationship" is involved must be accompanied by power
or right to order or direct. Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47
N.E. 2 d 972."

'Supervise'. To have general oversight aver, to superintend or to inspect. See Supervisor.

'Supervisor'. A surveyor or overseer. Also in some states, the chief officer of a town; one of a
board of country officers.

In a broad sense, one having authority over others, to superintend and direct.

The term "supervisor" means any individual having authority, in the interest of the employer,
to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other
employees or responsibility to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise of such authority is
not of a merely routine or clerical nature, but requires the use of independent judgment.
National Labour Relations Act S. 2(11)."

I am inclined to hold that the supervision and control over the subordinate judiciary vested in
the High Court under Article 203 the Constitution keeping in view Article 175, is exclusive in
nature, comprehensive in extent and effective in operation. It comprehends the administrative
power as to the working of the subordinate Courts and disciplinary jurisdiction over the
subordinate judicial officers. In this view of the matter, any provision in an Act or any rule or
a notification empowering any executive functionary to have administrative supervision and
control over the subordinate judiciary will be violative of above Article 203 of the Constitution.
Besides, it will militate against the concept of separation and independence of judiciary as
envisaged by Article 175 of the Constitution and the Objectives Resolution.

11. This leads us to the question, what relief or reliefs in the instant petitions can be granted. It
was submitted by Mr. Khalid M. Ishaque that the judicial power includes the power to grant a
relief which may be warranted by the facts of the case in hand. He and Mr. Syed Sami Ahmad
have relied upon the case of Merbury v. Madison 1 Cranch 137, 2 L. Ed. 60 (1803), in which
Marshall, famous Chief Justice of the Supreme Court of the United States, observed as follows:

"The Constitution vests the whole judicial power of the United Sates in one Supreme Court,
and such inferior Courts as Congress shall, from time to time, ordain and establish. This power
is expressly extended to all cases arising under the laws of the United States; and, consequently,
in some form, may be exercised over the present case; because the right claimed is given by a
law of the United States."

Mr. Khalid M. Ishaque to reinforce his above submission has also referred to certain passages
from Encyclopaedia of the American Constitution by Leonard W. Levy, Essays In
Constitutional Law by R.F. v. Heuston, From Brown to Bakke by J. Harvie Wilkinson 111,
Supreme Court and Judicial Law Making; Constitutional Tribunals and Constitutional Review
by Edward McWhinney and State Politics and Islam by Mumtaz Ahmad. He has also referred
to the case of Mohiuddin Molla v. The Province of East Pakistan and others P L D 1962 S C
119, the case of Commissioner, Khairpur Division, Khairpur and others v. Ali Sher Sarki P L
D 1971 S C 242, and the case of Sind Employees' Social Security Institution and another v.
Adamjee Cotton Mills Ltd. P L D 1975 S C 32 to submit that if the Court has power to grant a
relief, it has inherent power to pass any other interlocutory order to make the final relief
effective. It will suffice to observe that the above American concept cannot be introduced while
construing the provisions of the Constitution. It may be observed that clause (2) of Article 175
already referred to hereinabove provides that no Court shall have jurisdiction save as is or may
be conferred on it by the Constitution or by or under any law. That is why in the above famous
case of Ziaur Rehman, Hamoodur Rehman, C.J. observed that:

"So far, therefore, as this Court is concerned it has never claimed to be above the Constitution
nor to have the right to strike down any provision of the Constitution. It has accepted the
position that it is a creature of the Constitution; that it derives its powers and jurisdictions from
the Constitution; and that it will even confine itself within the limits set by the Constitution
which it has taken oath to protect and preserve."
However, there cannot be any doubt that a Court having jurisdictions to adjudicate upon a
matter, has the power to mould a relief according' to the circumstances of the case, if dictates
of justice so demand even if such a relief has not been expressly claimed provided they relief
to be given is within the compass of the jurisdiction of the Court.

Mr. A.A. Fazeel has invited our attention to Article 268 and so also Mr. Khalid M. Ishaque and
have submitted that since the adaptations in the various enactments were to be made within
two years by the President or the Governor as the case may be subject to the passing of Act by
the appropriate legislature and that in the absence of making such adaptations within the above
period and even after the expiry of the period mentioned in clause (3) of Article 175 and also
after expiry of further reasonable period, this Court by virtue of clause (6) of above Article 268
is obliged to construe the law with all such adaptations as are necessary to bring it into accord
with the provisions of the Constitution. It will be advantageous to reproduce hereinbelow above
clause (6) of Article 268 which reads as follows:

"268 (6).--Any Court, tribunal or authority required or empowered to enforce an existing law
shall, notwithstanding that no adaptations have been made in such law by an order made under
clause (3) or clause (4), construe the law with all such adaptations as are necessary to bring it
into accord with the provisions of the Constitution."

It will suffice to quote para. 38 from the recent judgment of the Hon'ble Supreme Court in the
case of Sardar Ali v. Muhammad Ali reported in P L D 1988 S C 287, at page 330:

"38. The generalisation in some of the submissions that all these provisions arp. to be read with
The Resolution, has not proved to be of much help. The Courts are required to act in accord
with the Constitution and cannot ignore altogether the limitations mentioned above. They have
to be reconciled. An r, attempt has been made in some recent judgments by the Sind High Court
to rely on Article 268 of the Constitution for the proposition that The Resolution having become
a part of the Constitution, "adaptations" can be made under clause (6) thereof by the Courts,
"as are necessary to bring them in accord with the provisions of the Constitution". It is remarked
that, prima facie this power existed for the transitional period, only for "adaptation" by not only
the Courts but also by all "Tribunals" and "authorities", concerned with the enforcement of the
laws. Such as interpretation of Article 268(6) cannot be upheld without a fuller examination
and proper assistance. Moreover, this or similar other exercise has, for the same reasons, to be
deferred till that type of cases come before the Court."

I may observe that probably the attention of the Hon'ble Supreme Court to its earlier case,
namely, Muhammad Din and others v . The State reported in F L D 1977 S C 52 at p. 65 was
not invited during the arguments of the above-cited case of Sardar Ali. The relevant
observations in the above earlier case read as follows:
"This argument does not take note of the provisions of Article 268 of the Constitution Which,
inter alia, provides for continuance in force subject to adaptation of all existing laws to bring
them into conformity with the provisions of the Constitution. The Constitution is the supreme
law of the land and all existing and future laws will have to conform to its provisions to make
them enforceable. It is not controverted that at the commencement of the Constitution of 1973,
P.0.14 was "existing law". Therefore, vide clause (3) of Article 268 it has to be read subject to
necessary adaptation so as to bring it "into accord with the provisions of Constitution". Clause
(6) imposes a further duty on Courts to read into an existing law, the necessary adaptation,
notwithstanding that no adaptation has in fact been made in such law. Because of this provision
in the Constitution, the power initially conferred on the President under Article 4 of P.0.14 of
1972 shall under the Constitution, be read as exerciseable in accordance with the advice
tendered by the Prime Minister under Article 4.1 of the Constitution. It is therefore wrong to
suggest that the transitional scheme underlying P.0.14 of 1972 has become unworkable since
the commencement of the Constitution."

Since the above point is not directly involved in the instant cases, it is not necessary to examine
the same any further and the same can be examined when the case is brought before the Court
involving the above question.

M/s. Muhammad Ali Sayeed and Qadir H. Sayeed learned D.A.-G. have submitted that no,
relief can be granted as Article 175 is not a self-executory Article and that it does not provide
any penal consequences for its non-compliance.

Whereas Mr. Sharaf Faridi has submitted that non-fulfilment of Article 175 amounts to
subversion of the Constitution and, therefore, the penal consequences envisaged by Article 6
of the Constitution (which provides that, "any person who abrogates or attempts or conspires
to abrogate, subverts or attempts or conspires to subvert the Constitution by use of force or
show of force or by other unconstitutional means shall be guilty of high treason" can be pressed
into service. Mr. Faridi has also referred to the definition of the word "subversion" given in
"The Shorter Oxford English Dictionary", Volume II:

"Subversion" late ME (0) Fr. subversion or late L. subversion, (as pree. ; see ON)

(1)?? Overthrow, demolition (of a city, stronghold, etc.). Now rare or obs.2. The turning (of a
thing) upside down or uprooting it from its position; overturning, upsetting (of an object) Now
rare. 1670. 3. In immaterial senses: Overthrow, ruin. late ME.

??? (2)?? The s. of woods and timber....... through my whole estate ........... is almost tragical
EVELYN.
??? (3) The decay of health , and subversion of reason 1558. The s. of several powers and states
upon the continent 1798. Hence subversionary a. (rare) -next."

I am not inclined to subscribe to the submissions made by M/s. Muhammad Ali Sayeed and
Qadir H. Sayeed that no relief can be granted in relation to Article 175 but at the same time I
am also not agreeable to the submission made by Mr. Sharaf Faridi that non- fulfilment of
Article 175 amounts to subversion in terms of Article 6 of the Constitution. Mr. Muhammad
Ali Sayeed has referred to certain portion of the judgment of the Honourable Supreme Court
in the above case of Fauji Foundation on Article 2 of the late Constitution of 1962 in order to
contend that Article 175 of the Constitution is of similar nature to that of late 1962 Constitution,
under which no relief could have been granted. The above contention seems to be contrary to
the reasoning given in the judgment as my Lord the Chief Justice quoted the observations of
B.Z. Kaikaus, J. in the case of Mian Jamal Shah v. The Member, Election Commission,
Government of Pakistan, Lahore (P L D 1966 Supreme Court 1) on above Article 2, which
were to the following effect:

"It embodies an important charter. It prevents the Government from taking any action in this
country for which there is no legal sanction, and it at the same time debars the Legislature from
creating an authority whose actions are not subject to law. The Legislature cannot, in the face
of Article 2 enact that whatever action a particular person may take shall be immune from
challenge. All persons exercising authority in Pakistan must do so only in accordance with
law."

The Honourable Chief Justice of Pakistan after having quoted the above observations and also
certain observations from the case of The Province of East Pakistan and others v. Sirajul Haq
Patwari and others (PLD 1966 SC 854) has observed that a clear distinction appears from the
above as to the content of Article 2, in that it is not available for testing the vires of the law
itself but only the actions under the law which could be judicially reviewed as for their validity.

It will not be out of context to mention that under Chapter 2 of Part II of the Constitution certain
provisions have been incorporated under the caption "PRINCIPLES OF POLICY". Clause (2)
of Article 30 of the above Chapter provides "the validity of an action or of law shall not be
called in question on the ground that it is not in accordance with the Principles of Policy, and
no action shall lie against the State, any organ or authority of the State or any person on such
ground." From the above clause, it is evident that the framers of the Constitution provided
expressly that in respect of certain provisions relating to the Principles of Policy no action will
lie but there is no such provision in respect of Article 175 or Article 203.

Since the various Federal and Provincial Governments after the enforcement of the
Constitution in 1973 have failed to do what they were/are required to do under the Constitution,
direction/ directions under Article 199 can be issued to them to do the same, and similarly a
prohibitory direction can also be issued not to do which is not permitted by the Constitution. I
may observe that in order to bring the existing laws in conformity with Articles 175 and 203
of the Constitution, not only some administrative actions are required to be taken but also some
legislative measures are needed. There seems to be no controversy that direction /directions to
take administrative actions/ measures required by the Constitution and/or any other law, can
be issued against the Executive. However, it is a debatable point, whether a direction can be
issued to the legislature to discharge its constitutional obligation as to bring the existing laws
in conformity with the provisions of the Constitution by legislating the required laws, but in
my view, a direction can be issued to the Federal and Provincial Governments to initiate
legislative measures for bringing the existing laws in conformity with the above Articles 175
and 203 of the Constitution.

I am inclined to hold that there is a marked distinction between a direction to the Legislature
to legislate and a direction to the Executive to initiate the legislative measures to bring the
existing. laws in conformity with the provisions of the Constitution. The latter in my view is
permissible.

??? 12. I would, therefore, allow the above two petitions in the following terms:--
(A) The respondent in the first petition i.e. respondent No.2 (i.e. the Province of Sind) in the
second petition is directed--

(i)???? to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No.
XII of 1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy
into Judicial Magistrates and Executive Magistrates and to place the Judicial Magistrates under
the administrative control of? the High Court within a period of six months,

(ii)??? to issue necessary Notification under sub-rule (2) of Rule 2 of the Sind Civil Servants
(Efficiency and Discipline) Rules, 1978, and Rule 4 of the Sind Civil Services (Appointment,
Promotion and Transfer) Rules, 1974, notifying the High Court as the Authority within a period
of sixty days,

(iii)?? to initiate legislative measures within a period of six months in order to make necessary
amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sind Civil Servants
Act, 1973, Sind Civil Servants (Efficiency and Discipline) Rules, 1973, the Sind Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974, and in the other enactments to make the
same in conformity with above Articles 175 and 203 of the Constitution.
(B)?? Respondent No. l (i.e. the Federation of Pakistan) in the Second Petition is directed to
initiate all legislative/ administrative steps/measures to bring the existing laws relating or
affecting the judiciary in accord with Articles 175 and 203 of the Constitution within a period
of six months.

(1)??????????????? I may mention that I have taken into consideration the financial implication
arising out of proposed bifurcation of magistracy into judicial and executive. In this regard, I
may observe that there are 76 Civil Judges third class/second class working in Karachi and in
the interior of Sind. Some work of the Magistrates, who may be selected for executive work,
can be transferred to the above Civil Judges, till the time some permanent arrangements are
made.

14. Before parting with the above discussion, I may put on record our gratitude to M/s. Sharaf
Faridi, G.M. Qureshi and Syed Sami Ahmed, learned counsel appearing for the petitioners and
M/s. Ali Ahmed Fazeel, Khalid M. Ishaque and Muhammad Ali Sayeed who appeared as
amicus curiae, for their valuable assistance rendered by them for a good cause without having
any monetary consideration. At the same time I may record that the stand taken by the learned
counsel for the respondent Mr. Qadir H.Sayed, Deputy Attorney?General, Mr. A.A.
Muhammadally, learned Additional Advocate-General Sind and Mr. Abul Khair Ansari was
fair.

The petitions stand disposed of in the above terms, with no order as to costs.
????????????????????????????????????????????????????????????????????????????????????
????????????????????????? (Sd.)

????????????????????????????????????????????????????????????????????????????????????
???????????????????? Ajmal Mian,
????????????????????????????????????????????????????????????????????????????????????
?????????????????? Chief Justice

????????????????????????????????????????????????????????????????????????????????????
?????????????????? (Sd.)
????????????????????????????????????????????????????????????????????????????????????
Saeeduzzaman Siddiqui,
????????????????????????????????????????????????????????????????????????????????????
?????????????????? Judge

????????????????????????????????????? I agree and have appended my note of concurrence.

????????????????????????????????????????????????????????????????????????????????????
??????????????????????? (Sd.)
????????????????????????????????????????????????????????????????????????????????????
?????????????? Saleem Akhtar,
????????????????????????????????????????????????????????????????????????????????????
??????????????????????? Judge

????????????????????????????????????????????????????????????????????????????????????
???????????????????? (S d . )
????????????????????????????????????????????????????????????????????????????????????
???????? Haider? Ali Pirzada,
????????????????????????????????????????????????????????????????????????????????? ???
??????????????Judge
???????????????????????????????????? I agree and have appended my note of concurrence.

????????????????????????????????????????????????????????????????????????????????????
??????????? (Sd.)
???????????????????????????????????????????????????????????????????????????????? Sye
d Abdul Rehman, Judge

????????????????????????????????????????????????????????????????????????????????????
??????????? I agree.

????????????????????????????????????????????????????????????????????????????????????
?????????????? (Sd.)
?????????????????????????????????????????????????????????????????????????????????? A
bdul Rasool Agha, Judge

SALEEM AKHTAR, J.--I had the privilege of reading the learned judgment of my Lord the
Chief Justice and entirely agree with it. However, I wish to record additional reasons for
reaching the same conclusion and granting the same reliefs. The facts and contentions of the
learned counsel for the parties have been lucidly and clearly set out in the judgment of the
learned Chief Justice and I need not repeat them here. The petitioners wish to enforce the
provisions of the Constitution with regard to Judiciary and in that regard reference has been
made to Article 175 which requires progressive separation of the Judiciary from the Executive
within a period of 14 years, which has expired as far back as on 14th August, 1987. The very
words of Article 175 clearly establish that the Judiciary is not separate from the Executive and
it ought to have been done progressively. It is not the claim of any party that it has already been
separated.

In a set-up where the Constitution is based on trichotomy of power, Judiciary enjoys a unique
and supreme position within the framework of the Constitution as it creates balance amongst
various organs of the State and also checks the excessive and arbitrary exercise of power by
the Executive and the Legislature. Judiciary has been termed as a watch dog and sentinal of the
rights of the people and the custodian of the Constitution. It has been described as "the safety
valve" or "the balance wheel" of the Constitution. The jurisdiction and the perimeters for
exercise of power by all the three organs have been mentioned in definite terms in the
Constitution. ?do organ is permitted to encroach upon the authority of the other and the
Judiciary by its power to interpret the Constitution keeps the Legislature and Executive within
the spheres and bounds of the Constitution. The Constitution is a living document which
reflects the aims and aspirations, geniuss and genesis, temper and thinking of the people. Here
I would refer to a classical observation of my Lord the Chief Justice Muhammad Haleem in
Benazir Bhutto's case PLD 1988 SC 416 that "the Constitution is not merely an imprisonment
of the past, but is also alive to the unfolding of the future". It is "Law of the Laws".

In the wake of controversy in the petitions it is necessary to first ascertain the principles of
interpretation which may be applicable in such a situation. The governing principle is that as
the Constitution is a document which affects the life, liberty and rights of the people and also
provides for governance of the country, it has to be kept alive to meet the social, moral,
economic, political and legal demands and problems which may arise from time to time. It has
been held in Benazir Bhutto's case at page 490 that "it would thus, be futile to insist on
ceremonious interpretative approach to constitutional interpretation as hithereto undertaken
which only served to limit the controversies between the State and the individual without
extending( the benefits of the liberties and Principles of Policy to all the segments of the
population." Therefore, a flexible and progressive approach which may extend the benefits of
the Constitution to the people at large has been preferred over the ceremonious and rigid
interpretative approach. In the State of Punjab v. Ajaib Singh and another AIR 1953 SC 10
harmonious construction which suppresses mischief and advances justice has been favoured.

In Asma Jilani's case 1972 SCMR 139 the following observation was made:-

"In spite of a Judge's fondness for the written word and his normal inclination to adhere to prior
precedents one cannot fail to recognise that it is equally important to remember that there is
need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges
become mere slaves of precedents. The rule of stare decisis does not apply with the same
strictness in criminal, fiscal and constitutional matters where the liberty of the subject is
involved or some other grave injustice is likely to occur by strict adherence to the rule."
The Constitution should not be interpreted in a narrow and, pedantic manner. It should be given
liberal and broad interpretation but any enactment which transgresses the limitations placed by
Constitution would be declared void. If there is a conflict in the provisions of the Constitution
they should be interpreted harmoniously so that without violating the other both can be
practised and coexist. In such a situation a construction which ensures smooth working of the
Constitution in consonance with its other provisions should be adopted. No provision of the
Constitution unless so provided by the Constitution itself is supreme to the other nor can it
override the other provisions. Such interpretation should be adopted which promotes harmony,
consistency and keeps the Constitution alive and progressive.

Keeping these principles of interpretation in view it has to be considered whether any

Fundamental Right has been infringed by acts of omission or commission complained of by
the petitioners.

Mr. Sharaf Faridi has contended that the offending Articles which are contrary to Article 175
and such other laws and notifications which have been set out in the judgment of the learned
Chief Justice violate Fundamental Rights as conferred by the Constitution. Fundamental Rights
find place in Part II of the Constitution. Article 7 for the purposes of Part II i.e. the Fundamental
Rights and Principles of Policy defines "State" as follows:-

"7. 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 is pertinent to note that the definition of the word State is specially provided for this part and
it will not be applicable to other parts of the Constitution. It covers the Federal Government,
Majlis-e?Shoora (Parliament) which comprises of the National Assembly and the Senate,
Provincial Government, a Provincial Assembly and such local or other authorities which are
empowered by law to impose any tax or cess. Therefore, the Legislature and the Executive
besides the local authorities as defined herein fall within the meaning of State. Article 8 (1)
clearly provides that any law, custom or usage having the force of law which is inconsistent
with the Fundamental Rights shall to the extent of inconsistency be void. The sanctity of the
Fundamental Rights is protected by Article 8(2) which prohibits the State which includes the
Legislature not to make any law by which any Fundamental Right may be curtailed or taken
away and if any law is made to this effect then to the extent of such contravention it shall be
void. Therefore, under Article 8(2) a limitation has been placed on the Legislature not to curtail
the Fundamental Rights or abridge them by any law. The restriction has been placed on the
Executive and the Legislature as by legislation and by executive act, the Fundamental Rights
are infringed, violated or curtailed. But there is no mention of the Judiciary in the definition of
the State, and therefore, it can be assumed that the Judiciary as the custodian of the
Fundamental Rights has been charged with a duty as a watch dog to see that none of the
Fundamental Rights are abridged or taken away as provided by Article 8(2). The manner in
which the Constitution restricts the Legislature and Executive from encroaching upon and
violating the Fundamental Rights has been set out in Benazir Bhutto',s case as follows:-

"Therefore, there can be no doubt that when the impugned legislation by reference to its
provisions is ex facie violative of Fundamental Rights of an individual or political parties or
associations or unions, proceedings lie for the enforcement of those rights irrespective of the
fact whether any prejudicial order has been passed by the Executive under the law as the
Constitution treats the Fundamental Rights as superior to ordinary legislation and for that
reason sub-Articles (1) and (2) of Article 8 of the Constitution have been enacted which clearly
reflect the object and intention of the framer of the Constitution, that is, to keep the
Fundamental Rights at a high pedestal and to save their enjoyment from legislative infractions.
Sub-Article (1) of Article 8 lays down that any law in so far as it is inconsistent with the rights
conferred by this Chapter shall, to the extent of such inconsistency, be void. This could not
have been without a purpose but to preserve and protect the Fundamental Rights. Sub-Article
(2) of Article 8 places a restriction on the Legislature not to make laws which take away or
abridge the rights so conferred, and any law made in contravention of this clause shall to the
extent of such contravention be void. Article 8 places a restriction on the Legislature not to
make 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. Article 199(1)(c)
authorises the High Court to enforce the Fundamental Rights of an aggrieved person and to
declare that so much of law which is inconsistent with the Fundamental Rights shall be void.
Therefore, there is the power to declare the law to be void and the power to enforce the
Fundamental Rights which are violated by the law itself."'

This dictum proves that the Fundamental Rights guaranteed? by the Constitution are immune
from the pale of legislative enactments? and executive actions. The Parliament in our
constitution does not enjoy the supreme status like the British Parliament which is not governed
by any written Constitution. In our Constitution the legislative authority of the Parliament is
governed and limited by the provisions of the Constitution. The Indian Constitution is similar
to our Constitution. Basu while referring to "In re: . Delhi Laws Act, 1912," (1951) S.C.R.747
in his book "Commentary on the Constitution of India" remarked as follows:-

"A written Constitution, thus, provides the organic or fundamental law, with reference to which
the validity of the laws enacted by the Legislature are to be tested. A law enacted by the
Legislature cannot transgress or violate the provisions of the fundamental law. Thus, the
Parliament under the Indian Constitution cannot be said to be a sovereign Legislature in the
Dicean sense."

For the purpose of the present case in my humble view Article 9 will be attracted which reads
as follows:-
"No person shall be deprived of life or liberty save - in accordance with law."

Similar provision finds place in various Constitutions of the world particularly in U.S.A. where
the 5th Amendment provides that no person, shall be "deprived of life, liberty, or property,
without due process of law".

In the Indian Constitution Article 21 provides that "no person shall be deprived of his life or
personal liberty except according to the procedure established by law". Article 9 is very similar
to these two provisions quoted above. The doctrine of due process of law in American
Constitution has been commented upon and discussed in various authorities and judgments of
our Courts and its applicability in the same manner with full force in Pakistan was doubted but
in Abul Aala Maududi's case P L D 1964 S.C.673 at page 710 Cornelius, C.J. observed as
follows:-

"I would prefer to base such reliance as is required for the purposes of my arguments, on the
necessity of "due process", upon the fact that it is an element of justice which forms an essential
part of British Common Law, deriving from Royal Statute of date as far back as 1951 A. D. l
hc: subject has been 'dealt with in Willoughby's Commentary on the Constitution of the United
States, 1929, Volume III, page 1681, wherein it'i is shown that in those early statutes from
which the Common Law has developed the expression "due process of law" was' deemed to be
synonymous with the expression "the law of the land". One of those statutes explained the
expression "duel process of law" as meaning "by indictment or presentment of R good and
lawful men where such deeds be done or by writ original of the common law" in other words
by proper trial."

In Benazir Bhutto's case the limits placed on the concept of judicial review by the Anglo-Saxon
Jurisprudence were removed as according to Haleem, C.J.:

"This is destructive of the rule of law which is so worded in Article 4 of the Constitution as to
give protection to all citizens. The inquiry into law and life cannot, in my view be confined to
the narrow limits of the rule of law in the context of constitutionalism which makes a greater
demand on judicial functions. "

It was further observed as follows:-

"In this milieu, I am of the view that the adversary procedure, where a person wronged is the
main actor if it is rigidly followed as contended by the learned Attorney-General for enforcing
the Fundamental Rights, would become self-defeating as it will not then be available to provide
'access to justice to all' as this right is not only an internationally recognised human right but
has also assumed constitutional importance as it provides a broad based remedy against the
violation of human rights and also serves to promote socio-economic justice which is pivotal
in advancing the national hopes and aspirations of the people permitting the Constitution and
the basic values incorporated therein one of which is social solidarity, i.e., national integration
and social cohesion by creating an egalitarian society through a new legal order."

The right of "access to justice to all" is a well-recognised inviolable right enshrined in Article
9 of the Constitution. This right is equally found in the doctrine of "due process of law". The
right of access to justice includes the right to be treated according to law, the right to have a
fair and proper trial and a right to have an impartial Court or Tribunal. This conclusion finds
support from the observation of Willoughby in Constitution of United States, Second Edition,
Vol. II at page 1709 where the term "due process of law" has been summarized as follows:-

"(1)????? He shall have due notice of proceedings which affect his rights.

(2)?????? He shall be given reasonable opportunity to defend.

(3)?? That the Tribunal or Court before which his rights are adjudicated is so constituted as to
give reasonable assurance of his honesty and impartiality, and

(4)?????? that it is a Court of competent jurisdiction."

It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an
impartial Court and tribunal. Unless an impartial and independent Court is established the right
to have a fair trial according to law cannot be achieved. Therefore justice can only be done if
there is an independent Judiciary which should be, separate from Executive and not at its mercy
or dependent on it.

Examining the present controversy from this angle it is clear, that if the State as defined in
Article 7 fails to establish independent', and impartial Courts it offends Article 9 of the
Constitution. The life and liberty of a person is not restricted only to the animal life butt,
includes the right to mould it according to the guarantees provided under the Constitution,
particularly the Fundamental Rights. The learned Chief Justice has held that Articles 196(b),
200(1)(4) and',, 203-C(4-B) and (5) are in conflict with Article 175. I am constrained, to hold
that such provisions of the Constitution are not only in conflict with Article 175 but they
encroach upon the Fundamental Right which guarantees a fair and proper trial by an impartial
and independent judiciary. The denial and failure to establish independent Courts and tribunals
by separating them from Executive negates Article 9.
Although certain provisions of the Constitution as enumerated by my Lord the Chief Justice
are in conflict with Article 175, the Court cannot declare them invalid. This aspect has been
dealt with in the leading judgment and I need not repeat it here. It should be made clear that if
any action is taken or order is passed which is in conflict with Article 175, the Court will be
competent to examine and determine its validity. Any law, order, action or proceeding which
offends the Fundamental Rights can be struck down. The question now arises that as the
respondents have failed to discharge their constitutional duty and offended Article 9 can any
relief be granted.

In Abul Ala Maudoodi's case the High Court had held that Fundamental Right was denied but
did not grant relief on the ground that it was possible for the Government to amend Act XIV
of 1908 with retrospective effect. The Supreme Court observed as follows:-

"Where a Fundamental Right is denied, which the Courts are obliged to enforce (vide the new
subsection (c) to clause (2) of Article 98 of the Constitution), a suppliant cannot be left to such
a doubtful relief. On the view taken by the learned Judge, it was incumbent upon him to seek
some mode by which in law, it might have been possible for him to grant relief against the
deprivation of Fundamental Right, which he had expressly found."

It is the duty of the Court to ensure compliance of the Constitutional provisions. In Ziaur
Rehman's case PLD 1973 SC 49, at page 70 Hamoodur Rehman, C.J. while discussing the
judicial power vested in Court observed:-

?????? ?????????? "In exercising this power, the judiciary claims no supremacy over other
organs of the Government but acts only as the administrator of the public will. Even when it
declares a legislative measure unconstitutional and void it does not do to ???? so, because, the
judicial power is superior in degree or dignity to the legislative power; but because the
Constitution has vested it with the power to declare what the law is in the case's which come
before it. It thus merely enforces the Constitution as a paramount law whenever a legislative
enactment comes into conflict with it because it is its duty to see that the Constitution prevails.
It is only when the Legislature fails to keep within its own Constitutional limits, the Judiciary
steps in to enforce compliance with the Constitution. This is no doubt a delicate task as pointed
out in the case of Fazlul Quader Chowdhury v. Shah Nawaz, which has to be performed with
great circumspection but it has nevertheless to be performed as a sacred Constitutional duty
when other State functionaries disregard the limitations imposed upon them or claim to
exercise power which the people have been careful to withhold -from them.

In Sayed Abul Ala Maudoodi's case PLD 1964 SC 673, at page 783 Hamoodur Rahman, J. (as
he then was) observed as follows:?
"The basic principle underlying a declaration of fundamental
rights in a Constitution is that it must be capable of being enforced not only against the
Executive but also against the Legislature by judicial process and this is the basic principle that
has been incorporated into our Constitution by the combined effects of the new Article 6
paragraph (c) of clause (2) of Article 98 and clause (3) of Article 133 of the Constitution, as
amended by the Constitution (First Amendment) Act."

While analysing Article 8(1) and (2) in Benazir Bhutto's case PLD 1988 SC 483 it was
emphasised that the Fundamental Rights were kept "at high pedestal and to save their
enjoyment from Legislative infraction" and further that "sub-Article (2) of Article 8 places
restriction on the Legislature not to make law which takes away or abridges the rights so
conferred.

It therefore, follows that Legislature is also bound within the four corners of the Constitution.

A mandatory duty has been cast upon the Executive and Legislature to separate the Judiciary
from Executive, but they have remained completely silent, dormant and unconcerned. Such
omission :,F to exercise jurisdiction not only violates Article 175 but infringes Fundamental
Right as well. In such circumstances necessary orders can be passed and direction in mandatory
form can be issued to ensure enforcement of the provisions of the Constitution and to prevent
the breach of Fundamental Right.

For these additional reasons as :yell I respectfully concur with the judgment and order of my
Lord the Chief Justice.

SYED ABDUL REHMAN, J.--I am in respectful agreement with the conclusion of the Hon'ble
Chief Justice that the supervision and control over subordinate judiciary vested in the High
Court under Article 203 of the Constitution, keeping in view Article 175 thereof is exclusive
in nature, comprehensive and effective in operation. It comprehends the administrative power
as to working of the subordinate Courts and disciplinary jurisdiction over the subordinate
Judicial officers. In this view of the matter any provision in an Act or any rule or a notification
empowering any executive functionary to have administrative supervision and control over
subordinate judiciary will be violative of the above Article 203. Besides it will militate against
the concept of separation and independence of judiciary as envisaged? by Article 175 of the
Constitution and the Objectives Resolution.

2. In view of the controversy in the High Courts and the postponement by the Supreme Court
of the resolution of the said controversy regarding the supra-constitutional status of the
Objectives Resolution thereby giving it precedence over those provisions of the Constitution
which were inconsistent with it as well as regarding the nature of Article 268(6) as to whether
it was a transitory power and had existed for the transitional period only or is still available to
the Courts, it was desirable that this exercise be deferred for some other appropriate occasion
and the Hon'ble Chief Justice is right in not expressing a decisive finding on this controversy
in this case.
?
3.?? The rule of law has been universal obligation of every civilized country. It means
supremacy of law as opposed to the arbitrary H authority of the Government. According to
Dicey this supremacy guarantees three concepts (i) absence of arbitrary power, (ii) equality
before law and (iii) rights of citizen. The rule of law is the very Bedrock on which the
foundation of the entire Islamic justice is based. The concept of justice according to Surah: 4,
Verse 135 of Holy Qur'an, is as follows:-

"Surely We have revealed the Book to you with the truth that you may judge between people
by means of that which Allah has taught you."0 you who believe, be maintainers of justice,
bearers of witness for Allah's sake though it may be against your ownselves or your parents or
near relations, be he rich or poor. Allah is most competent to deal with them both, therefore do
not follow your low desires lest you-deviate, and if you swerve to turn surely Allah is aware of
what you do."

In Surah 55: Verses 7-9 it is provided:-

"He has set up the balance (of justice). In order that ye may not transgress (due) balance.

So establish weight with justice and fall short in the balance."

In Surah 5: Verse 9 it is said:-

"0' you who believe: Stand out firmly for God, as witnesses to fair dealing, and let not the
hatred of others to you make you swerve to wrong and depart from justice. Be just: that is next
to piety: and fear God, for God is well acquainted with all that you do.

4. Justice Dr. Nasim Hasan Shah in his well-known book, Constitution, Law and Pakistan
Affairs has dealt with the supremacy and separation of judiciary in the following words:-
"To establish the supremacy of law and to enable the Courts to work without any fear or favour
they were, in the Islamic system of Government, held in such esteem and were given such high
status that no judicial system of the world even of today, can compare favourably with it.
Judiciary in the Islamic system is separate from the executive and, enjoys full freedom, works
quite independently without being influenced from any quarter. The eminent jurist of Islamic
Law, Justice Ameer Ali, in his famous work, The History of The Saracens, while describing
the administration of justice during the days of Caliph Umar quoted Von Hammer, according
to whom "Justice was administered by civil judges, who were appointed by the Caliph and
were independent of the governors. Umar was the first ruler in Islam to fix salaries for his
judges, and to make their offices distinct from those of executive officers. The title of Hakim
i.e. ruler, was reserved for the Kazi (judges). The judge was named and is still named the
Hakim-ush-Shara' i.e. , ruler through the law, for law rules through the utterance of justice, and
the power of the Governor carries out the utterance of it. Thus, the Islamic administration, even
in its infancy, proclaims in word and in deed the necessary separation between judicial and
executive power."

According to Ameer Ali the administration of justice was perfectly equal, and the Caliphs set
the example of equality by holding themselves amenable to the orders of the legally?
constituted Judge.
In Pakistan a serious attempt is now being made to revert to the Islamic Ideals of administration
of justice.

5. In my humble view it is not necessary for the Courts to strike down any provision of the
Constitution if it is inconsistent with the Objectives Resolution or with any other provision
thereof which stands on a higher pedestal and the Court can solve the problem by applying the
principle of harmonious interpretation keeping in view the principles of Islamic ideology,
morality, public good read with the judicial activism following the latest trend of the decisions
of the Supreme Court and High Courts in our country. The most illustrious example of the
application of these principles is provided in the case of Benazir Bhutto v. Federation of
Pakistan reported in P L D 1988 S C 416 wherein while considering the scope of Article 270-A
it was held that it was a new provision which was differently worded in many respects from
the earlier provisions giving constitutional validity. The legal provisions which had been given
validity thereby were enacted during the specified period and not all have survived so as to
continue in force until altered, repealed or amended by the competent authority as enacted by
sub-Article (3) of Article 270-A. If the legal measure is not itself in existence how can it be
operative retrospectively. It was therefore held that Sub-Article 3 of Article 270-A is itself a
clue to the prospective operation of laws which are saved as it gives to it a continuity but not
those which are repealed. This was also against the principle of validation which is only the
remedy to defeat the retrospection but does not care to any future operation of law. The
Constitution had guaranted to every citizen who was not in service of Pakistan the right to form
a political party or to be a member of a political party and this right was subject only to
reasonable restrictions imposed by law in interest of the sovereignty or integrity of Pakistan,
public order and morality. Referring to the Objectives Resolution it was observed that ideology
of Pakistan was based on Muslim nationhood and Islamic ideology, it means injunctions of
Holy Quran and Sunnah. The word 'morality' was defined in the light of Holy Qur'an as:

Therefore not only individually but also collectively Muslims had to live within an exclusively
moral framework as enjoined by Holy Quran. The concept of democracy in our Constitution
should therefore regarded to be imbibed with independence and collective morality as
according to Islam. After taking into consideration the restriction imposed by Article 17(2) of
the Political Parties Act it was held that compulsion of registration on the political parties could
not be protected thereunder. Such compulsive registration having been made dependent upon
satisfaction of the Election Commission was held to be a constraint superimposed on Article
17(2) and therefore violative of right itself and could not be regarded as reasonable restriction
of the exercise of the right. Hence certain provisions of Political Parties Act were declared and
held to be void on account of being inconsistent with the fundamental right enshrined in Article
17(2)(3) of the Constitution.

Similarly in the Supreme Court case of Haji Saifulla (C.As.Nos. 314 to 317 of 1988 etc.) Lahore
High Court had held the order of the President dated 29-5-1988 under Article 58(2)(b) of the
Constitution dissolving the National and Provincial Assemblies and dismissing the Federal and
Provincial cabinets as unsustaining the Federal and Provincial cabinets as unsustainable in law
but did not grant relief in the shape of restoration of the Assemblies and cabinets. The reasons
for refusing to grant the relief of restoration in the words of the Lahore High Court are as
follows:-

"Since the orders dissolving the National Assembly and the four Provincial Assemblies are
ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining
the respondents from preventing them from performing the functions of their offices and to a
declaration that such of the respondents who presently hold Ministerial offices and listed posts
be treated as having not been constitutionally appointed and as having no authority under the
law to hold such posts, notwithstanding the short delay of three months that has occurred in the
filing of their writ petitions. However, certain other factors which have intervened and which
deserve to be taken note of prevent me from granting these reliefs. Amongst these
circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former
Prime Minister, in accepting the action of the President and the Governors and declaring the
decision of his party i.e. the Pakistan Muslim League, to go to the polls and seek the mandate
of the people. In this connection, the statement made by the former Prime Minister appearing
in the Pakistan Times newspaper of 18th July 1988, may be referred. Further, soon after the
dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with
some Ministers and members, both at the Centre and the Provinces, supporting Mr. Muhammad
Khan Junejo, the former Prime Minister and some Ministers and Members both at the Centre
and the Provinces, supporting Mr. Fida Muhamamd Khan (the head of other faction of the
Muslim League). In these circumstances, it cannot be said that the previous majority parties
have the majority of the votes of the members in the Centre and the Provinces. If the reliefs are
granted, the National and the Provincial Assemblies would be beset with major problems and
conflict. Still further, on 20th July, 1988, the late President ordered that the general elections
would be held on 16th November, 1988, which fact has been further confirmed in public
statements by Mr. Ghulam Ishaq Khan, the present President and the Election Commission of
Pakistan has taken serious steps to hold the general elections and in pursuance thereof has
delimited constituencies and will soon finish the job of hearing appeals therefrom. The entire
administrative machinery of the Federation and the Provinces is geared up to hold the general
elections on 16th November 1988, and the people, who previously were not in a position to
vote for candidates belonging to certain political parties which had been banned, are now ready
and impatient to exercise their votes freely and voluntarily without any restrictions. Taking all
circumstances into consideration, the discretionary jurisdiction of the Court under Article 199
of the Constitution does not permit me to grant the reliefs as prayed. I do not, therefore, propose
to grant any relief."

6. The above judgment of Lahore High Court was upheld by the Supreme Court and the refusal
to grant relief was approved and the above reasons for refusing to grant the relief were held to
be cogent.

7. I am therefore in respectful agreement with the Hon'ble Chief Justice that since the
respondents Nos.l and 2, the Federation and the Provincial Government have failed to do what
they are required to do under the Constitution, a direction under Article 199 can be issued to
them to do the same and similarly a prohibitory direction can also be issued to them requiring
them not to do which is not permitted by the Constitution.

8. It will not be out of place to enumerate the progressive and retrogressive steps taken from
time to time in the direction of separation of judiciary from the executive enjoined in Article
175 (3) of the Constitution some of which also find place in the judgment of the Hon'ble Chief
Justice.

9. As pointed out by the Hon'ble Chief Justice a Law Reforms Commission (1967-70) was set
up under the Chairmanship of Justice Hamoodur Rahman. The Commission submitted its
report wherein it ,suggested various amendments in certain laws. The recommendations about
separation of judiciary from executive find place at pages 231 to 267.

10. After tracing. the brief history of the steps taken in this behalf from the days of British
Government the Commission enumerated the post-independence development in Pakistan
particularly the steps taken in the Province of Punjab when the committee headed by Mr.
Akhtar Hussain, an old Executive Officer, prepared a scheme whereby partial separation was
effected by appointing judicial Magistrates to exclusively dispose of criminal cases while the
executive Magistrates were to continue to assist the District Magistrates in discharge of
executive duties. The lacuna in the scheme which to my mind was kept deliberately, was that
Judicial Magistrates were placed under the control of ADMs. This scheme therefore did not
work satisfactorily for the reason that the impartiality and the integrity of the Judicial
Magistrates suffered a set-back due to the control of and interference by Additional District
Magistrates whom the Judicial Magistrates dare not displease as he was to write their Annual
Confidential Report. Hence the scheme had to be discontinued. The Commission then
discussed the various problems that could come in the way of separation of judicial Magistracy
from the executive Magistracy. It did not approve of the discontinuance of the scheme of
separation of Judicial Magistracy with the executive Magistracy in the Punjab and suggested
that an Ordinance on the lines of similar law in erstwhile East Pakistan be passed whereby
separation was effected in that province and was working very successfully.

11. On the recommendations of the Commission, Law Reforms Ordinance XII of 1972 was
promulgated by the President on 13-4-1972. The Ordinance had to come into force at once
except the provisions of the schedule relating to amendment in the Code of Criminal Procedure,
1898 which inter alia contained the recommendations for separation of Magistracy meant for
doing judicial work from the Magistracy deployed in performance of executive functions of
the provincial administration. The provisions relating to amendments in the Code of Criminal
Procedure had to come into force in a province with effect from such date not later than
1-1-1973 as the Provincial Government may notify. The notification by the Provincial
Government of Sind could not be issued prior to 1-1-1973. By an amendment carried into
section 1(2) by Ordinance 24 of 1975 which was then replaced by a similar Act in 1976 after
the word "specify' the words "for different provisions and' were inserted. The amended
subsection thus authorised the Provincial Government to issue notification enforcing various
provisions of the schedule relating to amendments in the Code of Criminal Procedure from
time to time. The first notification was issued on 23-12-1975 in consequence of Law Reforms
Ordinance XII of 1972. This notification contained two important provisions regarding
separation of Magistracy from Executive which are as under while the remaining provisions
were limited at expediting the trial of criminal cases and simplifying the procedure
"Provisions for separation of Judiciary.--??????????

(1)?? Sessions Judges were given power to transfer criminal cases from the Court of one
Magistrate to that of other Magistrate though the power of District Magistrate as regards
allocation of work among the Magistrates in the District was to remain intact.

(2)???? Sessions Judges were invested with power of revision.

Notification for the remaining provisions of Ordinance XII of 1972 to Code of Criminal
Procedure all of which contained the provisions regarding separation of Judicial Magistracy
from Executive Magistracy has, however, not been issued uptil now.

12. In this connection it will not be out of place to mention that after the promulgation of
Ordinance XII of 1972 the question of issuing notification under section 1(2) of the Ordinance
was taken up by the Provincial Government of Sind for the first time in 1973. The issuance of
notification was opposed by the Home Department as the Executive Officers were not prepared
to part with the function of trying judicial cases obviously with ulterior motive with the result
than even the procedural amendments of the Law Reforms Ordinance, 1972, which were aimed
at expediting disposal of criminal cases were also held up, due to the deadlock. A working
paper was prepared by the Law Department of Sind in which the amendments proposed by this
Ordinance to the Code of Criminal Procedure relating to matters other than the separation of
Judicial Magistracy from the Executive Magistracy to which there was no objection from those
quarters were included in the list of the items for which the notification was proposed to be
issued. The Law Department also suggested inclusion of two other important provisions in the
working paper, which are summarised below. The one related to power of the Sessions Judge
to transfer criminal cases from one Magistrate to another Magistrate instead of D.M. and
S.D.M. and the other relating to grant of revisional powers in criminal cases to the Sessions
Judges instead of District Magistrate and Sub-Divisional Magistrate. The notification could not
be issued at that time due to the revitalised opposition to the two provisions referred to above
to which the Home Department had initially agreed. However, the then Prime Minister Mr.
Z.A.Bhutto on coming to know of the above working paper sent for the same and ordered its
implementation throughout Pakistan. Consequently an amendment was made in Ordinance XII
of 1972 by issuing Ordinance XXIV of 1975 and Notification No.S.Leg.8/75 dated 23-12-1975
was issued in Sind on the lines of the proposals contained in the working paper referred to
above.

13. It may be recalled that among all the provinces of Pakistan, Sind had the unique privilege
of taking a major step towards the separation of Judicial Magistracy from the Executive
Magistracy as early as 1952. Justice (Rtd.) Mr. Din Muhammad who was the Governor of Sind
in those days prepared a scheme whereby he ordered the conversion of all the posts of City
Magistrates, Additional City Magistrates and Resident Magistrates in Sind into the posts of
Civil Judges and First Class Magistrates and bringing the incumbents in the cadre of Civil
Judges and placing them under the direct control of the District and Sessions Judge and the
High Court. This scheme unlike the Punjab Scheme of 1953 has been working for the last 36
years successfully and is being applauded by the entire litigant public and the Bar. On the one
hand it has minimised corruption in criminal Courts which was rampant in the days of the
Executive Magistracy because the Executive Magistrates were under the control of the
Revenue Department and had come from the ranks of Mukhtiarkars who did not enjoy good
reputation as to their integrity. At the same time it improved the standard of working in the
Magisterial Courts as the Civil Judges were Law Graduates and were recruited from bar and
had therefore better knowledge and understanding of law in comparison to their predecessors
who had risen from the ranks of Tapedar and clerks to the ranks of Mukhtiarkar and so on and
had little knowledge of understanding of law. Unlike the Punjab Scheme, in this scheme A.D.
Ms. or D. Ms. were not given any control whatsoever Judicial Magistrates, who were called
Sub-Judges/Civil Judges and First Class Magistrates, what to say of writing their A.C.Rs.
Hence the DMs. or A.D.Ms. or S.D.Ms. could not dare to interfere into their work or pressurise
them. Unfortunately after the departure of Justice (Rtd.) Din Muhammad this scheme met
step-mothers treatment at the hands of his successors and could not be completed. In Karachi
the Courts of City Magistrates and Additional City Magistrates could not be converted into that
of Civil Judges and First Class Magistrates. Even in Hyderabad and certain other cities and
towns of Sindh certain important criminal Courts continued to be occupied by Executive
Magistrates. Not only that but new posts of City Magistrates and Additional City Magistrates
at certain places for doing judicial work were created and attempts were made to reverse the
process of separation of Judiciary from the Executive from time to item after departure of
Justice (Rtd.) Din Muhammad from Sindh. However, now it is high time that the remaining
items of the schedule of the Ordinance XII of 1972 relating to Code of Criminal Procedure all
of which pertain to the separation of Judicial Magistracy from Executive Magistracy be
enforced which can be enforced by simply issuing a notification under section 2(1) thereof.
which are the following:-

Items 2, 2, 3, 5, 6, 7, 8, 9, 10, 12, 13, 15 (ii) 16, 17(ii), 18, 19, 20, 21, 22(ii), 23, 32, 32A, 41(i),
42, 43(i), 44, 45, 47, 48, 49(i), 50, 52, 54, 56, 57; 58, 59, 60(i), 63(i), 65(ii), 66, 68, 70(i)(ii),
71, 72, 79-A, 91(i), 96, 101, 106, 116, 117(ii), 138, 139, 140, 141(i) and (iii), 142, 143, 150,
151, 152-B, 153(ii), 161, 165, 170, 171, 183, 185(i), 186, 187, 188, 205, 210(vii)(a) and (b),
211(i), (iii) ahd (iv) and 212"

These items provide mainly (1) that besides the High Court and the Courts constituted under
any law other than Criminal Procedure Code for the time being in force there shall be two
classes of criminal Courts in Pakistan namely Courts of Session and Courts of Magistrates. The
Magistrates have been sub-divided into Judicial Magistrates and Executive Magistrates. The
Judicial Magistrates were Magistrates of First Class, Second Class and Third Class and special
judicial Magistrates while Executive Magistrates were sub-divided into District Magistrates.
Additional Magistrates and S.D.Ms.(2) Judicial Magistrates were made subordinate to the
Sessions Courts and High Courts while Executive Magistrates were made subordinate to
S.D.Ms. and District Magistrates. (3) The Judicial Magistrates had to take cognizance of all the
offences and try those which were triable by Magistrates and send to the Sessions Court those
offences which were exclusively triable by the Sessions Court. (4) The Executive Magistrates
had only power to take proceedings for prevention of offences under Chapter VIII of Cr.P.C.

14. It would therefore appear that the prayer contained in clause (b) of the prayer clause in
C.P.No.D-91 of 1987 can be effectually and satisfactorily granted to the petitioner if the
remaining provisions of the above Ordinance are enforced by issuing a notification as
suggested above.

15. Being thus fully in agreement with the conclusion arrived at[ by the Hon'ble Chief Justice
I entirely concur with the orders passed by him granting reliefs enumerated therein to the
petitioner's.

16. I would however, observe additionally that the Federal Government in view of what has
been said in this judgment as well) as in view of the rulings from Indian jurisdiction discussed
in the judgment of the Hon'ble Chief Justice endeavour to develop traditions and practices
whereby transfers of High Court Judges which may have the effect of causing harassment or
inconvenience to the concerned High Court Judge are avoided as far as possible. Healthy
practices should be developed by not transferring a High Court Judge from MM one Court to
another or from the High Court to Federal Shariat Court to which requires fresh oath, without
his consent, and in no case without the concurrence of the Chief Justice concerned. After all in
England from where we have borrowed our entire legal and judicial system meaningful
conventions and healthy practices are the cornerstone of their democratic, judicial, legal and
constitutional, edifice. In the same way promise to secure independence for Judiciary in
Pakistan can also be fulfilled.

MAMOON KAZI, J.--I have had the privilege of going through the judgment of my Lord the
Chief Justice, proposed to be given by him. Although I find myself in complete agreement with
most of the observations therein, and I say so with utmost respect and humility, however, I
have reservations in respect of some of them, therefore, I would like to express my views by
this separate note.

2. The relief claimed by the petitioners in these two petitions is set out in detail in the judgment
of my Lord, the Chief Justice and I need not refer to the same again here. The paramount
question, however, is whether this Court is competent to grant the relief claimed by the
petitioners, while keeping itself confined within the perimeters set out in Article 199 of the
Constitution.

3.???? Reliance has been placed by the petitioners on Articles 175(3) and 203 of the
Constitution, which provide that:

"(3)?? The Judiciary shall be separated progressively from the Executive within fourteen years
from the commencing day."

"203. Each High Court shall supervise and control all Courts subordinate to it."

4. While underlining the importance of Article 175(3), Mr. Sharaf Faridi, Advocate, the
petitioner No.l in C.P.No.D-891/87, who has addressed us on most of the issues raised in that
petition, has argued that no provision like Article 175(3) can be found in any other Constitution,
not even in the Indian Constitution. This Article, as is apparent thereform, now enjoins that the
Judiciary shall be separated from the Executive within' a period of fourteen years, which period,
according to the petitioner, expired on 14th August, 1987. Therefore, according to the
petitioner, there being a command of the framers of the Constitution, it requires compliance in
letter and spirit, and in case of its failure, the Courts can enforce its compliance by issuance of
a writ. The petitioner has emphasised that the provisions of Article 175 (3) are mandatory in
nature and non-compliance therewith constitutes subversion of the Constitution, which can
even be visited by a penalty contemplated in Article 6 of the Constitution. We inquired from
Mr. Sharaf Faridi, to whom the command as postulated in Article 175(3) is directed as the
Article itself is silent in this regard. His answer was that barring the Judiciary, the command is
directed to the other two organs of the State viz., the Executive and the Legislature. Reference
in this respect was made by him to Article 7 of the Constitution, which provides, the definition
'of "State".

5. Article 203 of the Constitution, according to the petitioner, is another Article, which vests
the High Court with power of complete supervision and control over the subordinate Judiciary,
which excludes all kinds of executive control over it.

6. Reference was also made by Mr. Sharaf Faridi to the Objectives Resolution, which is now
enshrined in the Constitution as a substantive part thereof by virtue of Article 2-A introduced
therein by P.O. 14 of 1985. This, according to Mr. Sharaf Faridi, is a supra-constitutional
instrument and every other provision of the Constitution is subordinate thereto and must be
tested on the touchstone thereof. It may be pointed out that this Resolution envisages Pakistan,
among other things, as an independent sovereign State with independent judiciary. Reference
was made by the petitioner particularly to Articles 196(b), 200(1),200(4), 203-C(4),(4-A),(4-B)
and 48 of the Constitution, which according to him, are in conflict with the Objectives
Resolution and Article 2-A of the Constitution and, therefore, liable to be struck down as
inoperative. The petitioner has also called in question the Constitution (5th Amendment), 1976,
the Revival of the Constitution of 1973 Order, 1985. The Constitution (Amendment) Order 1
of 1980, and the Constitution (Third Amendment) Order No.24 of 1985, which amended
Articles 196 and 200 of the Constitution, added proviso to sub-Articles (4) and (5) of Article
203-C, amended proviso to sub-Article (4) by increasing the period mentioned therein from
one year to two years and further added sub-Articles (4-B) and (4-C) to Article 203-C, all of
which, according to the petitioner, are in conflict with Article 2-A of the Constitution.

7. We have been also addressed by Mr. G. M. Qureshi, Advocate, the petitioner No.3 in C.P.
No.D-891/87 and Mr. S. Sami Ahmed, learned counsel, who appeared on behalf of the
petitioners in C.P.No.D-123/74, besides the learned counsel, who appeared before us as amicus
curiae. The view propounded by Mr. G.M. Qureshi has been that the above Articles have been
introduced into the Constitution to undermine the independence of judiciary and are against
the basic structure thereof as the Constitution envisages a completely independent Judiciary,
free from any executive control.

8. It is pertinent to point out here that C.P.No.D-123/74 has been filed by the Karachi Bar
Association and Mr. Sharaf Faridi and Mr. Kazi Mehfooz, Advocates to impugn the provisions
of the notification, dated 23-10-1973, issued by the Government of Sind, the Sind Civil
Servants (Efficiency and Discipline) Rules, 1973 and the Sind Ordinance X of 1973, which
according to the petitioners, are in conflict with Articles 4, 14, 175 and 203 of the Constitution.
9.?? As far as the argument that the provisions of the Constitution coming into conflict with
the Objectives Resolution are liable to be struck down is concerned, the same has been dealt
with by my Lord, the Chief Justice in his judgment and it has been held that neither any
provision of the Constitution can be tested on the touchstone of the Resolution or for that
purpose, Article 2-A of the Constitution nor the same can be struck down by us as inconsistent
N therewith or being opposed to the basic structure of the Constitution and I find myself in
respectful agreement with the views expressed by my Lord, the Chief Justice in this behalf and
I need not dwell further on this issue. Suffice it to say, that while dealing with the present
petitions, we are neither competent to go behind the aforesaid amendments introduced in the
Constitution nor the same can be tested on the touchstone of the Objectives Resolution or
Article 2-A of the Constitution.

10. However, the pivotal question is whether the provisions contained in Article 175(3) or 203
of the Constitution are enforceable by the Courts.

11. Turning first to Article 175(3), the same, no doubt, enjoins that the Judiciary shall be
separated from the Executive progressively within fourteen years and it places in this respect
an obligation on P at least two of the organs of the State viz., the Executive and the Legislature,
but there is no indication of the intention of the framers of the Constitution regarding the effect
of non-compliance with this Article. A question, therefore, arises whether provisions of the
Article are self-executing or mandatory or they are simply directory. Referring to imperative
and directory provisions, Maxwell on The Interpretation of Statutes, Tenth Edition, at page
375, says that:

"The reports are full of cases dealing with statutory provisions which are devoid of indication
of intention regarding the effect of non-compliance with them. In some of them the conditions,
forms, or other attendant circumstances, prescribed by the statute have been regarded as
essential to the act or thing B regulated by it and their omission has been held fatal to its
validity. In others, such prescriptions have been considered as merely directory, the neglect of
which did not affect its validity or .involve any other consequence than a liability to a penalty,
if any were imposed for breach of the enactment (i). The propriety, indeed, of overtreating the
provisions of any statute in the latter manner has been sometimes questioned, but it is justifiable
in principle as well as abundantly established by numerous authorities."

Denman, J., in Caldow v. Pixell (1877) 2 C.P.D.562, said: "the intention of the Legislature is
to be ascertained by weighing the consequences of holding a statute to be directory or
imperative." N.S. Bindra, in his book known as THE INTERPRETATION OF STATUTES
AND GENERAL CLAUSES ACT, third Edition, at page 446, says: "the basic test by which
to determine whether the requirement is essential or not, is to consider the consequences of the
failure to follow the statute. In this way, the importance of the requirement will be revealed. If
the requirement is revealed to be important, it may logically be assumed that the Legislature
intended that it be met; if found to be unimportant, that it need not be met." Again at the same
page, the commentary further says: "In each case, the subject-matter is to be looked to and the
importance of the provision in question in relation to the general object intended to be secured
by the Act is to be taken into consideration in order to see, whether the matter is compulsory
or merely directory." The same author, while referring to self-executing and non-self-executing
constitutional provisions, again says at page 682 "Constitutional provisions are not
self-executing if they merely indicate a line of policy or principles, without supplying the
means by which such policy or principles are to be carried into effect, or if the language of the
Constitution is directed to the Legislature or it appears from the language used and the
circumstances of its adoption that subsequent legislation was contemplated to carry it into
effect .... The question whether a provision is self-executing is always one of intention, and to
determine intent the general rule is that Courts will consider the language used, the objects to
be accomplished by the provision, and surrounding circumstances . The absence of penalty is
one of the circumstances to be considered in determining whether a constitutional prohibition
is intended to be self-executing; but is not sufficient of itself to postpone the operation of a
provision which it appears from all the circumstances was intended to be self? operative. "

12. The question is, how to give effect to the provisions of Article 175(3)? Can it be enforced
by issuance of directions to the Executive without reference to the Legislature? what, if the
Executive fails to get the required majority of the members of the Legislature to pass laws in
order to give effect thereto? Can the 14egislature be addressed by this Court by issuance of a
writ ? The Court can strike down a law as invalid, but, can the Legislature be compelled to
make a law Article 175(3) is also silent as to the extent of the Executive's responsibility to give
effect to the provisions thereof. Apart from it the obligation cannot be carried out without
financial implications or working out of modalities for its implementation. Can the Executive
or the Legislature be compelled by issuance of a writ to discharge this constitutional obligation
within the specified time without taking into consideration the means and resources at their
command? No satisfactory answers can be found to these questions. It may be pointed out that
provisions which are incapable of being enforced cannot be construed as self-executing.
Therefore, in my humble view, neither Article 175(3) is enforceable nor it confers any power
on this Court to issue directions for its implementation. It may, however, be pointed out that
my intention is not to overlook the importance of this Article as the provisions of the
Constitution referred to by Mr. Sharaf Faridi and Mr. S.M.Qureshi are in direct conflict with
the provisions of this Article and the declaration enshrined in the Objectives Resolution.
However, these provisions can always be RR available to the Courts to expound the other
provisions of the Constitution when executive actions are impugned before them in individual
cases.

13. I would now like to turn to Article 203 of the Constitution. This Article, reproduced above,
provides that each High Court shall supervise and control all Courts subordinate to it.
"Supervise", according to Ballentine's Law Dictionary means "to exercise oversight, to keep
under inspection." "Control", according to the same dictionary means "to check, restrain,
govern, have under command and authority." Basing his argument on this Aricle Mr. Sharaf
Faridi has referred to certain provisions of the Code of Criminal Procedure, such as sections
7,11,12,13,15,16,17, 22-A, 22-B and 25 and the West Pakistan Civil Courts Ordinance, such
as sections 4,5,6 and 8, as being in conflict with the above Article. Mr. Sharaf Faridi was further
supported by Mr. S.Sami Ahmed, learned counsel for the petitioners in C.P.No.D-123/74,
according to whom, notifications issued under sub-rule (2) of Rule 2 of the Sind Civil Servants
(Efficiency and Decipline) Rules, 1973 and rule 4 of the Sind Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974 are in direct conflict with the provisions of Article 203.
Similar provisions as Article 203 were also inserted into 1956 and 1962 Constitutions of
Pakistan, which have now been succeeded by the 1973 Constitution.

14. Mr. S. Sami Ahmed has invited our attention to notifications, dated 8-11-1960 and
22-4-1970, issued under the High Court of West Pakistan (Delegation of Powers) Rules, 1960
and another notification, dated 19-10-1973 issued by the Government of Sind and has pointed
out that although initially the Chief Justice had been assigned powers under the earlier
notifications, but according to notification, dated 19-10-1973 subsequently published in the
Gazette on 23-10-1973 the Chief Secretary, Sind has been notified as the authorised Officer
under sub-rule (3) of Rule 22 of the aforesaid Rules. It may be pointed out that after filing of
C.P. No.D-123/74, another notification was issued modifying the notification, dated
19-10-1973, where in place of 'Chief Secretary', "Chief Justice" was notified as authorised
Officer in respect of the District and Sessions Judges, Additional District and Sessions Judges.
Senior Civil Judges, Assistant Sessions Judges and Civil Judges.

15. The learned counsel has placed reliance on the case of State of Haryana v. Inderparkash
Anand A I R 1976 S C 1841 and Chief Justice of Andhra Pradesh and another v. L.V.A.
Dikshitulu and others AIR 1979 SC 193. In the first case, the Supreme Court of India while
referring to Articles 311 and 235 of the Indian Constitution held that the High Court exercises
complete control over the subordinate judiciary, which was subject only to the power of the
Governor in the matters relating to the appointment, dismissal, removal, reduction in rank,
promotion, etc. of the subordinate Judges. It was further held that the High Court had a
complete administrative control over the subordinate judiciary. It was also held that the
recommendations of the High Court in respect of the retirement of District Judge were binding
on the Government. In the second case referred to above, Articles 229 and 235 of the Indian
Constitution came under examination before the Supreme Court of India. It was held that
Article 229 vests the Chief Justice with a complete power in respect of appointment of
subordinate Judges and further, that the control postulated by Article 235 of the Indian
Constitution was complete and comprehensive in nature.

16. As far as the proposition that Article 203 vests the High Court with wide powers of
supervision and control over the subordinate judiciary is concerned, there can hardly be any
cavil with the same. However, the cases cited by Mr. S.Sami Ahmed relate to individual
executive actions, which had been called in question before the Court. What has been impugned
before us is not any such executive action, but the legislation made by the Parliament and the
notifications issued thereunder. It may be pointed out that Article 203 is general in terms and
the power of supervision and control with which it vests this Court is an undefined power,
which is to be regulated by the law made by the Parliament. We are not empowered in these
petitions to go either into the vires of the Statute, or the rules or the notifications made or issued
thereunder which have been impugned before us. Although, individual executive actions can
be tested on the touchstone of Article 203 of the Constitution, but no writ invalidating any
statute or any rule or notification, issued thereunder can otherwise be granted unless the rule
or the notification is ultra vires the statute under which it has been issued. That is not the case
of the petitioners. I am, therefore, unable to persuade myself to agree even with this contention
of Mr. Sharaf Faridi and Mr. S. Sami Ahmad.

17. It now remains to be considered what are the powers with which this Court has been vested
under Article 199 of the Constitution. According to clause (1) (a)(i) of this Article, subject to
the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided
by law, on the application of any aggrieved party, make an order: "directing a person
performing, within the territorial jurisdiction of the Court functions in connection with the
affairs of the Federation, a Province or a Local authority, to refrain from doing anything, he is
not permitted by law to do, or to do anything he is required by law to do. Paragraph (ii) further
empowers the High Court to make an order "declaring that any act done or proceeding taken
within the territorial jurisdiction of the Court by a person performing functions in connection
with the affairs of the Federation, a Province or a local authority has been done or taken without
lawful authority and is of no legal effect". The above power of the High Court is akin to the
power of the English Courts to issue writs of certiorari and mandamus. Article 199 further
empowers the High Court to issue writs in the nature of habeas corpus and quo warranto but in
view of the nature of the relief sought in these petitions, reference to the same is unnecessary.

18. The question as to the power of the High Court to issue writs under Article 98 of the 1962
Constitution, to which Article 199 of the 1973 Constitution corresponds came to be examined
before the Supreme Court in the case of Government of West Pakistan v. Begum Agha Abdul
Karim Shorish Kashmiri P L D 1969 S C 14 and Hamoodur Rahman, J. (as he then was),
observed as follows:

"In my opinion the learned Advocate-General of East Pakistan is perhaps nearer the mark than
the others. In my view the words "in an unlawful manner" in sub-clause (b) of Article 98(2)
have been used deliberately to give meaning and content to the solemn declaration under
Article 2 of the Constitution itself that it is the inalienable right of every citizen to be treated in
accordance with law and only in accordance with law. To my mind, therefore in determining
as to how and in what circumstances a detention would be detention in an unlawful manner
one would inevitably have first to see whether the action is in accordance with law, if not, then
it is action in an unlawful manner. Law is here not confined to statute? law alone but is used in
its generic sense as connoting all that is treated as law in this country including even the judicial
principles laid down from time to time by superior Courts. It means according to the accepted
forms of legal process and postulates a strict performance of all the functions and duties laid
down by law. It may well be, as has been suggested in some quarters, that in this sense it is as
comprehensive as the American "due process" clause in a new garb. It is in this sense that an
action which is mala fide or colourable is not regarded as action in accordance with law.
Similarly, action taken upon extraneous or irrelevant considerations is also not action in
accordance with law. Action taken upon no ground at all or without proper application of the
mind of the detaining authority would also not qualify as action in accordance with law and
would, therefore, have to be struck down as being action taken in an unlawful manner."

It may be pointed out that Article 4 of the 1973 Constitution corresponds with Article 2 of the
1962 Constitution to which reference was made in the aforesaid observations. This Article also
came under examination before the Supreme Court in Jamal Shah v . Election Commission P
L D 1966 S C 1 and it was held that:-

"It embodies an important charter. It prevents the Government from taking any action in this
country for which there is no legal sanction, and it at the same time debars the Legislature from
creating an authority whose actions are not subject to law. The Legislature cannot, in the face
of Article 2 enact that whatever action a particular person may take shall be immune from
challenge. Ail persons exercising authority in Pakistan must do so only in accordance with
law."

The same view again found favour with the Supreme Court in Province of East Pakistan v.
Sirajul Haq Patwari P L D 1966 S C 854. In Faup Foundation v. Shamimur Rehman, Article 2
was again examined by the Supreme Court and it was held that it did not invest the Courts in
Pakistan with such wide powers as the due process clause of the American Constitution and
the same was not available to the Courts for testing the vires of any law. Reference in the case
was also made to the judgment of the Supreme Court in Abul A'la Maudoodi v. Government
of West Pakistan P L D 1964 S C 673, wherein Cornelius, C.J. while dealing with the scope of
Article 2 held: "judicial review is not necessarily based upon the rule of "due process" as
incorporated in the Fifth and Fourteenth Amendments to the Constitution of the United States".
It was however, held, that the Executive action can always be tested on the touchstone of Article
2.

19. A question, therefore, arises what is the import of the words "law", ".lawful" and "lawful
authority"? The connotation of the term 'law' was considered by Hamoodur Rahman, J. in Miss
Asma Jilani v. Government of Punjab P L D 1972 S C 139 and after referring to various
authorities on the subject, he was of the view that:

"So far as a Judge is concerned, if a definition is necessary, all that he has to see is that the law
which he is called upon to administer is made by a person or authority legally competent to
make laws and the law is capable of being enforced by the legal machinery. This in my view,
brings in the notion both of legitimacy and efficacy."
The import of the word 'law' was once again considered by the Supreme Court in Brig.
(Retd.) F.B. Ali and another v. The State P L D 1975 S C 506 and it was held that in its
generally accepted connotation, it means positive law, that is to say, a formal pronouncement
of the will of a competent law-giver. I would also like to refer to a judgment of the Indian
Supreme Court on the point, reported as Rajkumar Nursing Pratap Singh Deo v. The State of
Orissa (A I R 1964 S C 17931. It was held in this case that "law" is "a body of rules which have
been laid down for determining legal rights and legal obligations which are recognised by the
Court-." Law, in fact, is a command of a sovereign laying down a general Bourse of conduct
and requiring obedience. The words "lawful" or "lawful authority" would also have similar
connotation, accordingly

20. A question therefore arises whether the provisions of Articles 175(3) and 203 of the
Constitution lay down a course of conduct. requiring compliance. This brings us to the same
question, whether these provisions are capable of enforcement by the Courts. I have already
pointed on that Article 175(3) is a non-self-executing provision, not capable of being enforced.
Article 203 of the Constitution is also vide and general in terms and as already pointed out, the
undefined power which it confers on the High Court requires to be regulated by further
legislation. Accordingly, these provisions cannot be construed as laying down any law in terms
of Article 199 or 4 of the Constitution..,_ The words "a person performing functions in
connection with the affairs of the Federation or a Province or a local authority", occurring in
Article 199 are further indicative of the fact that only executive actions can, be subjected to a
judicial review under .Article 199 of the Constitution and no writ of general nature can be
issued. I am, therefore, constrained to hold that no writ can be issued by this Court to grant any
of the reliefs sought in these petitions. No doubt, the object behind filing of these petitions is
noble, but the Courts are creatures of the Constitution and no power can be exercised by them
which has not been vested in them by the Constitution.

21. Reference was made by Mr. Khalid Ishaque, one of the learned counsel appearing as amicus
curiae in this case, to Article 268(6) of the Constitution, as according to him, the Courts are
empowered to construe an existing law with all such adaptations as are necessary to bring it
into accord with the provisions of the Constitution, notwithstanding the fact that no adaptation
has been made in such law by an order made under clause (3) or clause (4) of Article 268.
Consequently, the argument was that a direction can be issued by us to the effect that the
statutes, the rules or the notifications issued thereunder which come into conflict with Article
175(3) or Article 203 of the Constitution should be read with necessary adaptations to bring
them into accord with the aforesaid Articles.

?? 22.? The relevant provisions of Article 268 are reproduced as follows:-

??? "268.--(1) Except as provided by this Article all existing laws shall,? subject to the
Constitution continue in force so far as applicable and with the necessary adaptations, until
altered, repealed or amended by the appropriate Legislature.
?????????????????????????
??? (3) For the purposes of bringing the provisions of any existing law into accord with the
provisions of the Constitution (other than Part II of the Constitution), the President may by
Order, within a period of two years from the commencing day, make such adaptations, whether
by way of modification, addition or omission, as he may deem to be necessary or expedient,
and any such Order may be made so as to have effect from such day, not being a day earlier
than the commencing day, as may be specified in the Order.

(4) The President may authorise the Governor of a Province ???? to exercise, in relation to the
Province, the powers conferred on the President by clause (3) in respect to which the
Provincial? Assembly has power to make laws.
??? (6) Any Court, tribunal or authority required or empowered to enforce an existing law shall,
notwithstanding that no adaptations have been made in such law by an Order made under clause
(3) or clause (4) construe the law with the provisions of the Constitution.

??? (7) In this Article, "existing laws" means all laws (including Ordinances,
Orders-in-Council, Orders, rules, bye-laws, regulations and Letters Patent constituting a High
Court, and any notification and other legal instruments having the force of law) in force in
Pakistan or any part thereof, or having extra-territorial validity, immediately before the
commencing day.

???????? Explanation............................................... ? "

23. Nothing can be spelt out from Article 268 to empower this Court to issue a writ as proposed
by Mr. Khalid Ishaque. First of all the opening words in Article 268(6): "any Court, tribunal or
authority required or empowered to enforce an existing law" clearly a indicate that this power
can he exercised only in a given case and not generally. Secondly, no general direction can be
issued in this respect by the High Court. The argument, therefore, on the face of it is
unacceptable.

24. In the result, I would hold that these writ petitions are not maintainable and therefore, they
are liable to be dismissed.

25. Before parting with this judgment, I would like to express my gratitude to Mr. A.A. Fazeel,
Mr. Khalid Ishaque and Mr. Muhammad Ali Sayeed, learned counsel who appeared as amicus
curiae, for their valuable assistance.

ORDER OF THE COURT

Since 5 learned Judges have concurred with the judgment- of Ajmal Mian, C.J. and, as there is
no dissenting judgment, the petition is allowed in terms of the above majority judgment.

M . B . A . / S-370/ K???????????????????????????????????????????????????? Petition

allowed.