Article 9 of the Constitution of Pakistan: The Right to Life or Substantial Due

Process?

Amr Ibn Munir

Abstract

This paper briefly discusses the due process doctrine in Anglo-American Constitutional

jurisprudence, the jurisprudence of the due process clauses in both the abrogated constitutions of

Pakistan, and the jurisprudence that was established overtime. It also focuses on the jurisprudence

of the due process doctrine under Articles 4, 9 and 10-A of the 1973 Constitution and how all these

articles applied interchangeably. The present paper aims at substantial due process on the

touchstone of Article 9. The main questions attempted in this paper are how did the jurisprudence

of due process evolve in Pakistan? Whether Article 9 is the sole source of substantial due process

in Pakistan and if so, to what extent? Have the superior Courts in Pakistan interpreted this Article

as the main governing law regarding substantial due process? How the superior courts expanded

the notion of life to include everything that are essential to life but are rather than amenities and

enjoyment for a good life? And whether the expanded interpretation of Article 9 be considered as

fair and appropriate? The main findings of this paper are that the superior courts have been

expanding life to cover many other amenities and rights on which either life depends or are

considered as the essentials of life since 1990; that this concept is very similar to the precept of


LLB student at the Department of Law, International Islamic University, Islamabad. Email:
amribnmunir2000@gmail.com.
He wishes to thank his father Prof. Dr. Muhammad Munir, for comments on an earlier draft of this work. He is very
thankful to Dr. Asim Cheema, Senior Research Officer, Lahore High Court for providing substantial caselaw.

This paper is an adaptation of my conference paper presented in the 4th International Conference of Protection of
Human Life in Shariah and Life organized by the Faculty of Shariah and Law, International Islamic University,
Islamabad in collaboration with International Islamic Fiqh Academy, Jeddah, Kingdom of Saudi Arabia and
International Institute for Research and Dialogue, International Islamic University, Islamabad.

Electronic copy available at: https://ssrn.com/abstract=4522566

“liberty” being interpreted and its scope being enlarged by the American courts which is also called

“incorporation”. Hence, it can be said that as per the jurisprudence laid down by the superior courts

in Pakistan the right to life does come under substantial due process, but not to the full extent of

substantial due process under the US jurisprudence; The methodology used in this work is

doctrinal.

Keywords:

Due Process, Natural Justice, Procedural Due Process, Substantial Due Process, Article 9

1.1 Introduction

This paper briefly discusses the due process doctrine in Anglo-American Constitution Law, the

jurisprudence of the due process clauses in both the abrogated constitutions of Pakistan that was

set before the present constitution and the jurisprudence that was established by the superior Courts

overtime. The jurisprudence of the due process doctrine under Articles 4 and 10-A of the present

1973 Constitution is also briefly discussed: how the due process clause was incorporated into three

Constitutional provisions in the current Constitution. How the courts interpreted and enlarged the

scope of Articles 4 and 9 under the right to “access to justice”. How the courts have also provided

four ingredients of the due process clause. How the courts would at first completely reject the

USA’s due process doctrine but would later on start applying it in many cases, especially after the

insertion of Article 10-A. How the courts have completely forgotten about Articles 4 and 9. How

the courts applied the UK’s natural justice jurisprudence more often. How there are times where

the courts apply Articles 4 and 9 in some cases or times where all three constitutional provisions

are applied in cases; How the courts are confused on which constitutional provision to mainly

touchdown on? The present paper concerns itself with substantial due process on the touchstone

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of Article 9. Thus, it focuses on whether Article 9 is indeed Pakistan’s substantial due process and

if so, to what extent? This paper attempts to answer the above questions by critically evaluating

the jurisprudence of the apex Court in some key decisions about the precept of due process. The

paper also discusses other questions along the way where needed.

1.2 Due Process in Anglo-American Constitutional Law

The due process clause has been the subject of academic debate for a long time. It has quite

a long history of how it evolved in Anglo-American Constitutional law since the time of Magna

Carta.1 However, due process has in fact existed even before the time of Magna Carta.2 In fact,

the concept of due process may existed since the time of the stoic philosophers.3 In the United

Kingdom, due process has been incorporated within the “natural justice” doctrine in which the

principles of “audi alteram partem” (hear the other side)4 and “Nemo iudex in causa sua” (no one

is a judge in his own cause)5 were the two main elements.6 This natural justice doctrine applies to

1
For more information on the history of the due process clause in the Magna Carta, see, Hamid Khan, Muhammad
Waqar Rana, “Comparative Constitutional Law, A Study of the Principles of Constitutional Law”, (Oxford
University Press, 2022). See also, Abhinav Chandrachud, “Due Process of Law”, (Eastern Book Company,
Lucknow, 2012),
2
Harry E. Groves, “Due Process of Law: A Comparative Study”, Marquette Law Review, Vol. 45, Issue 2, Fall 1961,
Article 4, pp. 257-271. Available at
https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2749&context=mulr (Last
visited 3rd October 2023). See also, Frederick F. Shauer, “English Natural Justice and American Due Process: An
Analytic Comparison”, William and Mary Law Review, Vol. 18, Issue No. 1, Article 3 (Oct 1976) (1976-1877), 47-
72. Available at https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=2419&context=wmlr (Last visited at
26th July 2023).
3
Ibid.
4
See, Dr. Bonham’s Case, 8 Co. Rep. 107a, 118a, 77 Eng. Rep.,638, 652 (C.P. 1610). See also, Dimes v. Grand
Junction Canal, 3 H.L.C. 759, 10 Eng. Rep. 301 (H.L. 1852). R. v. Sussex Justices ex parte McCarthy, [1924] 1 K.B.
256, 259, Metropolitan Properties Ltd. v. Lahnan, [1969] 1 Q.B. 577 (C.A.), Taylor v. National Union of Seamen,
[1967] 1 W.L.R. 532,
5
R. v. Chancellor of Cambridge (Dr. Bentley’s Case), Thellusson v. Rendlesham, 7 H.L.C. 429, 11 Eng. Rep. 172
(H.L. 1859). See also, Grimishaw v. Dunbar, [1953] 1 Q.B. 408 (C.A.); R. v. Benn & Church, 6 T.R. 198, 101 Eng.
Rep. 509 (K.B. 1795),
6
See, Groves, Due Process, pp. 257-271, n (2). See also, Shauer, Natural Justice, pp. 47-72, (n 2).

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the executive, that is to say any arbitrary action of the executive in the UK which goes against the

natural justice doctrine would be considered as illegal.7

In the USA, the doctrine of due process underwent more development than in the UK. After

being incorporated within the 5th and 14th Amendments8, the courts have started applying it on the

basis of two precepts: one is procedural due process, where procedural safeguards such as sending

a notice, opportunity of hearing etc. are guaranteed in any case or proceeding.9 The second is

substantial due process, which is a type of judicial review in which the court tests the vires of a

statute on the touchstone of the due process clause, seeing whether it infringes upon someone’s

“liberty” as protected by the due process clause.10 The courts would then interpret and enlarge the

scope of “liberty”, incorporate some unenumerated right, or enforce another right in its scope or

even absorb another constitutional right.11 The court would also apply the equal protection clause

on its touchstone. Hence, substantial due process can also be considered the “Right to Liberty” of

a person. 12

7
Ibid. See also this author’s, The Origin and Development of Due Process in the UK. Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4520507 (Last visited 26th July 2023).
8
For more information on the 5th and 14th Amendments, see, Hugh Evander Ellis, “Due Process of Law under the
United States Constitution”, University of Pennsylvania Law Review, vol. 74, no. 4 (February 1926), pp. 331-345.
Also available at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=8086&context=penn_law_review
(Last visited on 20th February 2023).
9
For more information, see, Erwin Chemerinksy, Substantive Due Process, Touro Law Review, Vol. 15, Number 4,
Article 15, (1999), 1501-1534. Available at
https://digitalcommons.tourolaw.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=2480&context=lawreview
(Last visited 26th July 2023). See also, Morrissey v. Brewer, 408 U.S. 471 (1972). American Manufacturers Mutual
Insurance v. Sullivan, 526 U.S. 40 (1999), The People v. Tran, 13 Cal.5th 1169 (2022), State v. Delvallie, 185 N.E.3d
536 (2022).
10
Ibid.
11
See, Dobbs v. Jackson’s Women Health Organization, 42 S.Ct. 2228 (2022). The court overruled Roe v. Wade and
ruled that the Constitution does not recognize an inherent right to abortion. See also, Kahler v. Kansas, 140 S.Ct.
1021 (2020). The court ruled that the due process clause does not require the state of Kansas to adopt an insanity test
that turns on the defendant’s ability to recognize that his crime was morally wrong, Timbs v. Indiana, 139 S.Ct. 682
(2019), the court ruled that in considering whether the Fourteenth Amendment incorporates a protection contained
in the Bill of Rights, we ask whether the right guaranteed, not each and every particular application of that right, is
fundamental or deeply rooted.
12
For more information, see, Chemerinksy, Substantive Due Process, 1501-1534, (n 9). See also this author’s, The
Doctrine of Due Process in the USA: A Critical Evaluation. Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521019 (Last visited at 26th July 2023).

Electronic copy available at: https://ssrn.com/abstract=4522566

1.3 The Jurisprudence of the Due Process Doctrine before Article 9

Article 9 of the Constitution provides that “No person shall be deprived of life or liberty save in

accordance with law.”13 Interestingly enough, Article 5(2) of the 1956 Constitution had the same

provision. This was the due process clause of the 1956 Constitution and the courts interpreted and

enlarged its scope by adopting the UK’s natural justice doctrine and the USA’s due process

doctrine, only to the extent of the application of the equal protection clause. However, it seems

that the courts had rejected it in theory but applied it in practice as can be seen in the case of “Waris

Mean v. The State” 14 where the appellants who were in the business of exporting fish had been

charged under Section 22A of the Foreign Exchange Regulation Act, which gave three different

courts the jurisdiction to try them. The court declared it violative of Article 5(1) of the

Constitution15, which provided for the equal protection of citizens rather than due process. The

court also rejected the notion of America’s substantial due process.16 However, by applying Article

5(1), the court had in fact applied the American equal protection clause as equal protection and

due process have been used interchangeably.17 After the abrogation of the 1956 Constitution, the

due process clause was incorporated within Article 2(1) of the 1962 Constitution, which provided

that “To enjoy the protection of the law, and to be treated in accordance with law is the inalienable

right of every citizen, wherever he may be, and of every other person for the time being within

Pakistan”.18 The courts interpreted and enlarged the scope of the due process first by adopting the

13
Available at https://na.gov.pk/uploads/documents/1549886415_632.pdf (Last visited 21st February 2023).
14
P L D 1957 Supreme Court (Pak.) 157.
15
Ibid, p. 167.
16
Ibid, p. 166.
17
See, A.K. Brohi, “The Fundamental Law of Pakistan”, (Din Muhammadi Press, McLeod Road, Karachi, 1958),
346. See also this author’s, Could the Courts Declare a Statute to be Null and Void on the Touchstone of the Due
Process of Law Clause under the 1956 Constitution? A Critical Appraisal”. Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521360 (Last visited 27th July 2023).
18
Available at https://factfocus.com/wp-content/uploads/2021/03/Constitution-of-Islamic-Republic-of-Pakistan-
1962-with-Appendix-and-Index.pdf (Last visited at 21st February 2023).

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UK’s natural justice doctrine and rejecting the USA’s due process19 but subsequently the courts

adopted the USA’s due process doctrine and even considered Article 2 of the 1962 Constitution to

be as comprehensive as the due process clause of the American Constitution in the case of

“Government of West Pakistan v. Begum Agha: AbdulKarim Shorish Kashmiri”20, where the

Supreme Court was to decide on appeal on the question of a person being detained in his house

under the Defence of Pakistan Ordinance (XXIII of 1965). The court first observed that in order

to determine as to how and in what circumstances a detention would be unlawful, the court would

have to first see whether the action was in accordance with law or not, if it is not, then the action

was made in an unlawful manner.21 The court then held that the due process clause incorporated

within the 1962 Constitution is as comprehensive as the due process clause incorporated within

the American Constitution.22 However, after the 1962 Constitution was abrogated and the present

1973 Constitution was enforced, the due process clause was incorporated under Article 4 of the

Constitution, which provided that

“(1) To enjoy the protection of law and to be treated in accordance with law is the

inalienable right of every citizen. Wherever he may be, and of every other person for the

time being within Pakistan. (2) In particular— (a) no action detrimental to the life, liberty,

body, reputation or property of any person shall be taken except in accordance with law;

(b) no person shall be prevented from or be hindered in doing that which is not prohibited

19
See, Province of East Pakistan v. Nur Ahmad, PLD 1964 SC 451, Saiyyid Abul A’la Maudoodi v. The Government
of West Pakistan, PLD 1964 SC 673, Mian Jamal Shah v. The Member Election Commission, Government of
Pakistan, Lahore, PLD 1966 SC 1.
20
PLD 1969 SC 14.
21
Ibid, p. 27.
22
Ibid. See also this author’s, The Matrix of the Due Process Clause under the 1962 Constitution: A Critical
Exposition”. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4521896 (Last visited at 27th July
2023).

Electronic copy available at: https://ssrn.com/abstract=4522566

 by law; and (c) no person shall be compelled to do that which the law does not required

him to do.”23

And it was also incorporated under Article 9 of the Constitution as well. And after the 18th

Amendment, the due process clause was also incorporated under Article 10-A of the Constitution,

which provided that “For the determination of his civil rights and obligations or in any criminal

charge against him a person shall be entitled to a fair trial and due process.” Hence, the due

process clause was incorporated into three Constitutional provisions in the current Constitution.

The courts would then interpret and enlarge the scope of Articles 4 and 9 under the right to “access

to justice” and provide four ingredients of the due process clause, which are: that there should be

a notice of proceedings to be sent to the person concerned; that the concerned person should be

granted a reasonable opportunity to defend himself; that the court or tribunal where the

proceedings are to be held should be biased and impartial; and lastly, that the court or tribunal

should be a competent one, that is to say, the court or tribunal should have jurisdiction in the instant

case.24 The courts would also at first completely reject the USA’s due process doctrine25 but would

later on start applying it in many cases26, after the insertion of Article 10-A, the courts seem to

have ignored Articles 4 and 9 and apply the due process doctrine, particularly the UK’s natural

justice doctrine on its touchstone.27 However, there are times where the courts apply Articles 4 and

23
Available at https://na.gov.pk/uploads/documents/1549886415_632.pdf (Last visited 21st February 2023)
24
See, Concurring Opinion of Saleem J. in Sharaf Faridi v. The Federation of Islamic Republic of Pakistan through
Prime Minster of Pakistan, PLD 1984 Karachi 404, 446. See also, Government of Balochistan v. Azizullah Memon,
PLD 1993 SC 341, New Jubilee Insurance Company Ltd., Karachi v. National Bank of Karachi, PLD 1999 SC 1126.
25
See, Fauji Foundation v. Shamimur Rehman, PLD 1983 SC 457, Muhammad Nadeem Arif v. Inspector-General of
Police, Punjab, Lahore, 2010 PLC (C.S.) 924=2011 SCMR 408.
26
See, Muhammad Jameel Das (W. Gopal Das) v. The Pakistan, 1999 CLC 541 [Lahore]. See also, Federation of
Pakistan v. Mian Muhammad Nawaz Sharif, PLD 2009 SC 531, Tariq Aziz-ud-Din and others: in re, 2010 SCMR
1301=2011 PLC (C.S.) 1130, All Pakistan Newspapers Society v. Federation of Pakistan, PLD 2012 SC 1. The court
declared the provisions of the law that were challenged the on the precept of being violative of the Constitution and
the fundamental rights to be violative of Articles 4 and 9 of the Constitution of Pakistan.
27
See, Suo Moto Case No. 4 of 2010, PLD 2012 SC 553. See also, Babar Hussain Shah v. Mujeeb Ahmed Khan,
2012 SCMR 1235, Suo Motu Case No. 5 of 2012, PLD 2012 SC 664.

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9 in some cases or times where all three constitutional provisions are applied in cases. 28 Thus, the

courts seem to have given confusing decisions on which constitutional provision to mainly

touchdown on, it would be better that the courts either apply Article 4 as a standalone provision as

Articles 9 & 10-A are fundamental rights and apply to individual rights only whereas Article 4

applies to the society at large or the courts could consistently apply all three together. This much

should suffice for our purposes as anything more would be beyond the scope of this paper.29

As briefly discussed hereinabove, the courts have applied substantial due process before as

well. However, it was not in the lines of enlarging the scope of “life” as protected by Article 9.

Hence, we direct our attention towards what exactly the scope of “life” has become under Article

9.

1.4 The Shehla Zia Case and the Initial Jurisprudence of Article 9 as Expounded by the

Supreme Court

Life’ has been interpreted by the Supreme Court of Pakistan in the case of “Saiyyad Abul

A’la Maudoodi and others v. The Government of West Pakistan and others”30 well before Article

9 ever existed. The court ruled that the principle of “audi alteram partem” is to be applied where

someone’s right to life, liberty and property is concerned.31 This was however more in the lines of

procedural due process of the USA or the UK’s natural justice doctrine.

After the 1973 Constitution was enforced, Article 9 was not first discussed in the famous

Shela Zia case but rather it was discussed in the cases of “Sharaf Faridi v. The Federation of

28
See, Abdul Qadar Ahsan v. Additional Deputy Commissioner (G), Islamabad, PLD 2019 Islamabad 434.
29
For a detailed discussion on this, see this author’s “Due Process under the 1973 Constitution and its
Judicialization”. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4522354 (Available at 27th July
2023).
30
PLD 1964 SC 673.
31
Ibid, at 31.

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Islamic Republic of Pakistan through Prime Minster of Pakistan”32 where Saleem Akhtar J. in his

separate note observed that the right to access to justice is found under Article 9 and that it

encompasses four ingredients of the due process doctrine, namely that, there should be a notice of

proceedings to be sent to the person concerned, that the concerned person should be granted a

reasonable opportunity to defend himself, that the court or tribunal where the proceedings are to

be held should be biased and impartial and lastly, that the court or tribunal should be a competent

one, that is to say, the court or tribunal should have jurisdiction in the instant case.33

However, Saleem Akhtar J., also expounded upon the precept of “life”. He first begins a

discussion on Article 9 by comparing it with the due process clauses incorporated within the Indian

and American Constitutions respectively and also discussed procedural due process on the

touchstone of right to “access to justice to all”.34 However, he followed it up with an observation

made on Article 9 by interpreting “life”. He observes that “…The life and liberty of a person is not

restricted only to the animal life but, includes the right to mould it according to the guarantees

provided under the Constitution, particularly the Fundamental Rights….”35 Hence, this was the

first time that “life” was discussed albeit briefly and in a concurring opinion. Nonetheless, “life”

is not restricted to mere animal life but should be moulded according to the other fundamental

rights of the Constitution. Hence, an exposition entirely reminiscent of Justice Field’s exposition

of life in “Munn v. Illinois”36, while deliberating upon the scope of the due process clause in the

American constitution, he observed that “By the term ‘life,’ as here used, something more is meant

than mere animal existence. The inhibition against its deprivation extends to all those limbs and

32
PLD 1984 Karachi 404.
33
Ibid, at pg. 42 of the judgement.
34
Ibid.
35
Ibid.
36
94 U.S. 113 (1876).

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faculties by which life is enjoyed.”37 Thus, began the exposition of Article 9 in terms of substantial

due process in Pakistani jurisprudence. As in substantial due process, various fundamental rights

were incorporated within “liberty”. Although, it was merely a non-binding concurring opinion,

nevertheless, it was the beginning. “Life” was also discussed in the case of “Government of

Balochistan through Additional Chief Secretary v. Azizullah Memon ”38, where the court ruled that

the legislature cannot frame such law which may bar the right of access to courts of law and

justice.39 The court also relied on the Sharaf Faridi case as mentioned hereinabove and ruled that

every person is entitled to an impartial and unbiased court or tribunal under Article 9.40 Hence,

once more the court has interpreted Article 9 in terms of the USA’s procedural due process doctrine

and the UK’s natural justice doctrine. This is very interesting considering Article 4 of the

Constitution was more applicable here as briefly discussed hereinabove.

Article 9 was discussed in the majority judgement in the famous case of “Ms. Shehla Zia

and others v. WAPDA”41 where the residents of the area of F-6/1 Islamabad challenged the building

of a grid station in the same area, citing that the electromagnetic field from the same grid station

could cause serious health hazards to the citizens living there, particularly the children who played

and that it could cause serious damage to the environment as well. The court had to consider

whether a government agency could endanger the lives of the citizens without their consent and

whether zoning laws vests rights in citizens which cannot be withdrawn or altered without the

citizen’s consent. Saleem Akhtar J. who authored the judgment for the three-member bench while

considering whether the instant petition was maintainable under Article 184(3) of the Constitution

37
Ibid, at 142.
38
PLD 1993 SC 341.
39
Ibid, at para 12.
40
Ibid.
41
PLD 1994 SC 693.

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observed that it was maintainable under the Constitution on the touchstone of Article 9 of the

Constitution.42 However, we shall strictly concern ourselves with his observations on Article 9 of

the Constitution. He observed that

“The word ‘life’ is very significant as it covers all facets of human existence. The word ‘life’

has not been defined in the Constitution but it does not mean nor can it be restricted only

to the vegetative or animal life or mere existence from conception to death. Life includes

all such amenities and facilities which a person born in a free country, is entitled to enjoy

with dignity, legally and constitutionally.”43

He also relied on the definition of ‘life’ as expounded by the Oxford Dictionary and the

Black’s Law Dictionary respectively and also considered the American jurisprudence of ‘life’ as

well.44 He also looked into the Indian jurisprudence on the same proposition.45 In this regard, he

even observed that the Indian jurisprudence on the scope of ‘life’ under Article 21 of the Indian

Constitution also started by relying on the famous dissenting opinion of Justice Field in “Munn v.

Illinois”. Thus, the interpretation and enlargement of the scope of “life” was adopted by the Indian

Supreme Court from the American jurisprudence and our apex Court adopted the same

jurisprudence by relying on the Indian case. Thus, the Indian Supreme Court directly relied upon

this dissenting opinion while the Pakistani Supreme Court indirectly relied upon this dissenting

opinion by relying on that same Indian judgement where it all started in the first place. Hence, one

may argue that the legacy of Justice Field on the sub-continent jurisprudence is arguably greater

than any other American Judge as far as the interpretation of life is concerned. To this day, the

42
Ibid, at para 12.
43
Ibid.
44
PLD 1994 SC 693, at para 13.
45
Ibid.

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right to life has been the greatest development of constitutional law in both countries. Of course,

as discussed hereinabove, we have seen the jurisprudence of the apex Court sometimes applying

substantial due process but many times it did not do so before the 1973 Constitution. However, we

will strictly confine ourselves to Article 9 of the Constitution.

In “The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works”46

where the Law Commission prayed for the Court to direct the respondents, the Ministry of Works

to bring the petitioners on their pool for allotment of official residence. Saleem J. who authored

the judgement for the divisional bench while contemplating on the scope of Article 184(3) being

maintainable on the touchstone of Article 9 of the Constitution observed that

“It is thus clear that Article 9 of the Constitution which guarantees life and liberty

according to law is not to be construed in a restricted and pedantic manner. Life has a

larger concept which includes the right of enjoyment of life, maintaining adequate level of

living for full enjoyment of freedom and rights. … in this view of the matter petition under

Article 184(3) is competent.”47

Thus, once more the scope of the precept of “life” has been enlarged, this time the court

has made it clear that it is not to be interpreted in a restricted manner and included the enjoyment

of life and maintaining the adequate level of living for the full enjoyment of freedom and rights.

The second part seems to have been interpreted in connection with “liberty”. The same judge

would rely on his own judgement, i.e., Shelia Zia case once again in “General Secretary, West

Pakistan Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and

46
1994 SCMR 1548.
47
Ibid, at para 3.

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Mineral Development, Punjab, Lahore”48 where the locals of Khewra filed a petition under Article

184(3) of the Constitution where they complained of unclean and polluted water from the water

supply being provided for them by the Pakistan Mineral Development Corporation. Saleem J. once

again authoring for the divisional bench observed that

“Article 9 of the Constitution provides that “no person shall be deprived of life or liberty

save in accordance with law”. The word ‘life’ has to be given an extended meaning and

cannot be restricted to vegetative life or mere animal existence. In hilly areas where access

to water is scarce, difficult or limited, the right to have water free from pollution and

contamination is right to life itself. This does not mean that persons residing in other parts

of the country where water is available in abundance do not have such right. The right to

have unpolluted water is the right of every person wherever he lives.”49

Hence, once again, the scope of “life” has been enlarged. Now, the right to life means every

person has the right to unpolluted clean water wherever he lives. It should be noted however that,

the vires of a statute has not been tested on the touchstone of Article 9. Rather, up till now, the

maintainability of a petition under Article 184(3) on the touchstone of a violation of Article 9 has

been discussed. Although, the scope of “life” has been interpreted and enlarged to incorporate

some substantive rights up till now, thus being reminiscent of how the scope of “liberty” was

interpreted and enlarged to incorporate many substantive rights under the constitutional

jurisprudence of the USA.

1.5 Evolution of Right to Life

48
1994 SCMR 2061.
49
Ibid, at pg. 8 of the Judgement.

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 We have already mentioned that the initial jurisprudence about the right to life was set by

Justice Saleem Akhtar by indirectly relying on the jurisprudence set by Justice Field which was

relied upon in the Indian case which Justice Saleem Akhtar relied upon. And that so far, its scope

has been enlarged to include all amenities of life as person is to enjoy, that it cannot be interpreted

in a restricted manner, that it includes the adequate means of making a living and that it also

includes the right to use unpolluted clean water. The Supreme Court however was not the only

court which had interpreted and enlarged the scope of Article 9. Justice Muhammad Aqil Mirza of

the Lahore High Court had also done this. In the case of “Mst. Ghosia Naz v. Deputy Education

Officer”50, where a school teacher had complained of not being paid her salary by the District

Accounts Officer. Aqil J. ruled that this was violative of Articles 2A, 3, 9, and 14 of the

Constitution, particularly Articles 9 and 14.51 We will of course confine ourselves to his

observations made on Article 9. He observed that

“Article 9 guarantees protection to life. It may be observed that “life” as occurring in this

Article does not merely mean vegetative life. It includes life which a person of civilised

society should live. An employee who does not receive salary for considerable period of

time is not expected to maintain even the minimum standard of civilised living.”52

Hence, this observation is similar to that of Justice Saleem Akhtar’s observation in “The

Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works” mentioned above.

However, he did not elaborate the word ‘civilised’ and the ‘minimum standard’. Hence, the right

to be able to maintain an adequate living is part of the precept of “life”. In “Mst. Naureen Riaz v.

50
1997 PLC (C.S.) 666 [Lahore High Court].
51
Ibid, at para 2.
52
Ibid, at para 3.

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Lahore Development Authority”53, where the residents who lived in Katchi Abadis (shanty town)

in Azam Colony, Shawala Colony, Engine Shed and Shawala Budhu situated near the Morre

Engine Shed, Gari Shahu Bridge, Lahore which was on the land owned by the Pakistan Railways

challenged the government’s actions of replacing the existing overhead Bridge near Gari Shahu

Lahore with new ones as it was causing the shifting of the residents of the Katchi Abadis from the

land. The Lahore High Court ruled that the residents were to be paid compensation and be provided

with alternate places of living.54 However, it is the observations on Article 9 which is of interest to

us. The Court observed that

“Article 9 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees a

fundamental right of a person not to be deprived of life and liberty save in accordance with

law. I think the right to life includes the right to live with basic human dignity and all that

goes along with it, namely the bare necessities of life such as adequate nutrition, clothing

and shelter over the head and facilities for reading and writing, etc. The minimum needs

of existence also flow from the right to life.”55

Once more, the scope of Article 9 has been widened to include being able to live a life of

basic human dignity which includes having access to the bare necessities of life such as adequate

means eating, clothing and shelter in addition to education. Consequently, the right to life was

extended to include the minimum needs of existence.

In the landmark case of “Sh. Liaquat Hussain and others v. Federation of Pakistan ”56,

where the civilian trials by military courts was challenged and the court transferred all cases to the

53
1998 CLC 1099 [Lahore].
54
Ibid, at para 5.
55
Ibid, at para 6.
56
PLD 1999 SC 504.

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Anti-Terrorism Courts, Ajmal J. who authored the judgement for the nine-member bench observed

that if any court or tribunal which is unconstitutional and does not fit into the constitutional

framework deprives the life of someone by sentencing him to death, even if that person were to be

a terrorist, it would be violative of Article 9.57 Interestingly enough, he deliberates upon this by

taking into context Article 4 read with Article 9, although he only declared it violative of Article

9.58

In “Ghulam Abbas v. The State”59, Mujeebullah J. of the Sindh High Court observed that

“… It should not be overlooked that Article 9 of our Constitution, which relates to a

fundamental right, guarantees life and liberty of every person. Life, inter alia, includes the

right to have access to a fair and independent judicial forum for redress. A balance is to

be struck between national and individual interest/right….”60

Resultantly, this time, “life” has been interpreted along the lines of procedural due process.

Having access to a fair trial and as well as an independent judicial forum, that is to say, an impartial

and unbiased tribunal/court/forum is also a part of “life”.

In “Arshad Mehmood and others v. Government of Pakistan”61, where Section 69-A of

West Pakistan Motor Vehicles Ordinance 1965 on touchstone that it violated Articles 3, 9 and 18

of the Constitution. Chaudhry J. (As he then was) who authored the judgement for the seven-

member bench while relying on the Shela Zia case observed that

57
Ibid, at para 42.
58
Ibid.
59
2004 PCr.LJ 1321 [Karachi]
60
Ibid, at pg. 4.
61
PLD 2005 SC 193.

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 “The word “life” used in this Article of the Constitution has been defined in the case of

Shehla Zia v. WAPDA (PLD 1994 SC 693), according to which “life” includes all such

amenities and facilities which a person born in a free country is entitled to enjoy with

dignity, legally and constitutionally”. It is further explained therein that the word “life” in

the Constitution has not been used in a limited manner. A wide meaning should be given to

enable a man not only to sustain life but to enjoy it.”62

In other words, enjoying life is considered as part of life. In “Moulvi Iqbal Haider v. Capital

Development Authority”63, where a local man had challenged the planned construction of a mini

golf course on a park in F-7 on the precept that such construction on a piece of public park which

is enjoyed by the public will cause a huge loss to the public exchequer. Iftikhar C.J. who authored

the judgement for the three-member bench ruled that this was violative of Article 26 of the

Constitution and accepted the petition.64 We shall of course concern ourselves with his

observations on Article 9. He observed that

“…Admittedly a Public Park, if it is earmarked in a housing scheme, creates a right

amongst the public and that right includes their entry in the park without any obstacle,

being fundamental right enshrined in Article 26 read with Article 9 of the Constitution. It

may be noted that liberty of a person, to have access or utilize a right available to him,

cannot be taken away by converting such facility into commercial one, for the purpose of

extending benefit to a third person…”.65 ]

62
Ibid, at para 27.
63
PLD 2006 SC 394.
64
Ibid, at para 34.
65
Ibid, at para 16.

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 Thus, this time, the scope of “liberty” has been deliberated upon rather than “life” with

both Articles 9 and 26 being discussed. The liberty of a person to access or utilize a right available

to him cannot be infringed by converting such facility for the purpose of extending the said benefit

to a third person. Hence, every person has the liberty to access or utilize any right available to him

and such right cannot be taken away to be granted exclusively to one person. Thus, entry into a

public park is enumerated under fundamental right. This is a very interesting observation.

In “Syed Mansoor Ali Shah v. Government of Pakistan”66, where the petitioners had

challenged the government’s actions to efficiently decrease air pollution caused by motor vehicles

is insufficient and not meeting the sufficient criteria in the city of Lahore. After a lengthy

deliberation of the whole case, Hamid J. relied on the Shela Zia judgment in order to settle the

question of maintainability of the petition in the instant case.67 In “Muhammad Sharif v. The

State”68, where the scope of Section 302(b) of the Pakistan Penal Code 1860 was deliberated upon

on the touchstone of Article 9 and the court observed that the courts should strive for lesser

punishments whenever possible so as to make sure that there is no deprivation of a person’s life

which is safeguarded by Article 9.69 Interestingly enough, the court relied on the case of “Sh:

Liaquat Hussain v. Federation of Pakistan”, where Article 4 was the basis of the court’s rationale

albeit it was read in line with Article 9. In “Bank of Punjab v. Haris Steel Industries”70, where there

is controversy involving a financial scam where it was revealed in a routine audit that there were

23 fake bank account holders in the bank of Punjab which had proper credit facilities being used

and finances had been distributed by the bank managers to them as well. We shall of course strictly

66
PLD 2007 Lahore 403.
67
Ibid, at para 12.
68
PLD 2009 SC 709.
69
Ibid, at para 22.
70
PLD 2010 SC 1109.

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confine ourselves to the court’s observations of Article 9. Ghulam J. who authored the judgement

for the three-member bench observed that

“… the matter in question relates to one of the gravest financial scams in the banking

history of our country as a result of which the Bank of Punjab stood cheated of an enormous

amount of around eleven billion rupees which amount of money in fact belonged to around

one million innocent depositors including depositors of small amounts of money whose

lifesavings and property had come under serious threat casting thus an obligation on this

Court to move in order to protect and defend the right of property of such a large section

of the population i.e. about ten lakh depositors and customers of the Bank of Punjab which

right of property stood guaranteed to them by Article 24 and Article 9 of the

Constitution.”71

Interestingly, while Article 24 did apply here, Article 9 does not at all mention “property”.

It mentions “life” and “liberty”. Hence, Article 4 which mentions all the three: “life”, “liberty” and

“property” as mentioned hereinabove would have been more appropriate to apply here. Of course,

one may also argue that the court’s rationale might have been that the court’s obligation to protect

a person’s property, finances in this case would also mean protecting the right to livelihood, which

is incorporated under Article 9 as discussed hereinabove, in which case, the court’s rationale is

absolutely correct.

In “Suo Motu Case No. 13 of 2009”72, the Supreme Court observed that “… Any

transaction, which is not transparent and goes against the interests of the general public

constitutes violation of Article 9 of the Constitution, which guarantees right to life to all

71
Ibid, at para 22.
72
PLD 2011 SC 619.

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 persons. Right to life has been explained and interpreted by the Superior Courts in a large

number of cases. It includes right to livelihood, right to acquire, hold and dispose of

property, and right to acquire suitable accommodation, which could not hang on to fancies

of individuals in authority and includes all those aspects of life which go to make a man’s

life meaningful, complete and worth living. It implies the right to food, water, decent

environment, education, medical care and shelter. A fundamental right cannot be snatched

away or waived off pursuant to any agreement.”73

Thus, we can see how the scope of “life” has been widened to a significant extent. It

includes all aspects of life which makes a man’s life worth living including food, water, decent

environment, medical care and shelter. Not to mention, it also includes transparent transactions

which should not go against the interest of the public. The interesting observation is the right to

acquire, hold and dispose of property being part of the right to life, especially considering the fact

that the right to property is not at all incorporated within Article 9 but instead is incorporated within

Article 4 is a separate right incorporated Article 24 of the Constitution.

In “Ismaeel v. The State”74, where the matrix of the right to life was discussed in the

dispensation of justice in criminal matters, the apex court observed that the interests of the country

are best served when the executive and judicial organs of the state adhere to law when there is

administration of penal statutes involved, particularly where a person’s liberty is involved as it is

a fundamental right enshrined in Article 9 and is thus “jealously” protected by the Pakistani

73
Ibid, at para 32.
74
2010 SCMR 27.

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courts.75 An interesting observation no doubt, but the court has forgotten all about Article 14 in

which dignity has been incorporated as a separate fundamental right.

In “Watan Party v. Federation of Pakistan”76, where the Sindh provincial government’s

actions in maintaining law and order situation was challenged, the apex court first relied on the

judgements of Shela Zia77 and Arshad Mehmood78 respectively and then proceeded to hold that

every government whether national or provincial has an obligation to maintain the law and order

situation of their respective territories so as to protect the fundamental rights of the citizens,

particularly Articles 9, 14, 15, 18 and 24.79 The apex court did not at all deliberate on Article 4

despite it being part of the submissions of the various counsels in the case and despite the fact that

Article 4 alone incorporated all these rights. In “In the matter of Alleged Corruption in Rented

Power Plants”80, the Supreme Court while relying on previous judgements held that “Non-supply

of electricity to the citizen regularly, is tantamount to depriving them of one of the essentials of the

life including the security of economic activities, which are relatable to their fundamental rights

protected under Articles 9 and 14 of the Constitution.”81 The interesting part was the court’s further

observation that the right to life included each and every aspect of human life.82 It would seem that

apex court has expanded “life” to inlcude each and every aspect of a person’s life no matter how

far-fetched. In “Muhammad Asfar v. Malik Muhammad Farooq”83, where there was a controversy

about the allotment of a house given to people who were not on the General Waiting List. The apex

75
Ibid, at para 11.
76
PLD 2011 SC 997.
77
Ibid, at para 2.
78
Ibid, at para 3.
79
Ibid, at para 131.
80
2012 SCMR 773.
81
Ibid, at para 15.
82
Ibid.
83
2012 SCMR 274.

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court ruled that “The denial of right of accommodation to employees under Rule 6 of the

Accommodation Allocation Rules, 2002, is denial of fundamental right of life, which includes to

have shelter/house as guaranteed under Article 9 of the Constitution.”84 Thus, having a

house/shelter comes under the matrix of the right to life. It seems very strange considering, Articles

4 and 24 would have been more applicable here. Of course, one may argue that this comes under

the jurisprudence set by the superior courts on right to life which includes every amenity that is to

be enjoyed by a person so he may enjoy his life, in which case, the apex court’s rationale is

consistent with the jurisprudence that it established.

In “Abdul Wahab v. HBL and others”85, the court held that

“There seems no room to disagree with the plea/legal position that the right to life of a

person/citizen shall include the right to livelihood and right to livelihood, therefore cannot

hang on to the fancies of individuals in authority… Because such an action (termination

etc.) shall be an infringement of right to life as envisaged by Article 9 of the Constitution.

Upon analysis of the said Article, which stipulates “No person shall be deprived of life and

liberty save in accordance with law”.86

Thus, the right to life includes the right to livelihood and such a right cannot be part of the

whims of the individuals who have a lot of authority, lest such right suffers a major infringement.

In the case of “Contempt Proceedings against Chief Secretary Sindh and others”87, the

apex court held that a person’s reputation and status alongside any ancillary privileges is protected

84
Ibid, at para 13.
85
2013 SCMR 1383 = 2014 PLC (C.S.) 393.
86
Ibid, at para 8.
87
2013 SCMR 1752.

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under Article 9 as it is also part of the “Right to Life” as well.88 In “OGRA through Secretary v.

Midway II, CNG Station and others”89, the court held that “the provision of electricity under the

guarantee of the right to life as enshrined in Article 9”90 while relying on previous judgements.

In “Suo Moto Case No. 19 of 2016”91, the apex court observed that “The Fundamental

Right to life (Article 9), includes the right to adequate and safe drinking water and basic health

care to which a large number of these projects/schemes pertain. The Fundamental Right to live a

life with dignity (Article 14) would be meaningless if the people are deprived of the benefit of

projects and schemes that are paid out of the public exchequer.”92 Interestingly enough, the court

discussed dignity separately from Article 9 under Article 14. In “Kamil Khan Mumtaz and others

v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and others”93,

where the legality of the construction of the Orange Metro Line Project was challenged on the

precept that the project would damage and harm several properties which also include 26 heritage

sites in the city of Lahore. Karim J. in his concurring opinion deliberates quite extensively on

Article 9, especially on the scope of “life”. He first observed that Article 9 imposes a negative

obligation on the state to refrain from infringing someone’s life and liberty except in accordance

with law.94 He then proceeded to observe that the precept of “life” has been expanded to include

peripheral rights or rights of penumbra within it, basic rights that are specifically mentioned in the

constitution, which are also enforceable as basic rights, of which origin traces back to the

jurisprudence set by the USA95, that is to say, basic constitutional rights have been incorporated

88
Ibid, at para 118.
89
2014 SCMR 220.
90
Ibid, at para 6.
91
2017 SCMR 683.
92
Ibid, at para 20.
93
PLD 2016 Lahore 699.
94
Ibid, at para 16.
95
Ibid, at para 17.

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within the precept of “life”. He then proceeded to discuss American constitutional jurisprudence

on the enlargement of the scope of fundamental rights96 and proceeded to observe that the same

jurisprudence has been set by the courts of Pakistan97 and proceeds to observe that “life” as

incorporated within Article 9 has been given the same treatment by the Pakistani courts by

discussing the Pakistani jurisprudence surrounding the same.98 He discussed the American and

Pakistani jurisprudence on the same precept.99 He then analysed various books of literature on the

importance and impact of heritage.100 Ultimately, he then observed that “history and heritage of

a person is comprised in the broad concept of the expression ‘life’ and is protected by Art. 9 of the

Constitution.”101 The interesting part however is at the end, where he contemplates on the scope

of “life” and observes that “In a nub, it seems now that the term encompasses all that a person

deems essential in order to sustain life. The courts have not put a clog on that flight of imagination

but has merely stamped its judicial approval to an expansive concept of life.”102 Thus, the courts

are now self-aware of their constant increasing of the scope of “life”, filling it with each and every

thing a person deems essential in order to sustain life.

In “Ali Steel Industry through Proprietor v. Government of Khyber Pakhtunkhwa through

Chief Secretary and another”103, where the petitioners challenged the actions of the respondent for

causing significant amount of pollution in their area. Daud J. who authored the judgement for the

divisional bench first deliberated upon the scope of “life” under Article 9, where the Peshawar

High Court observed that it should not be interpreted in a restricted manner, where it does not only

96
Ibid, at para 20.
97
Ibid, at para 21.
98
Ibid, at para 22.
99
See, paras 23-26.
100
See, paras 27-30.
101
Ibid, at para 31.
102
Ibid, at para 33.
103
2016 CLD 569 [Peshawar].

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mean mere animalistic existence, but also includes all amenities and facilities that a person is

entitled to enjoy in his life.104 He even relies on the definition of “life” as provided by the Oxford

and Black’s Law dictionaries respectively and then opened that “Life protected by the Federal

Constitution includes all personal rights and their enjoyment of the faculties, acquiring useful

knowledge, the right to marry, establish a home and bring up children, freedom of worship,

conscience, contract, occupation, speech, assembly and press.”105 He then discussed the scope of

“life” as provided in the Constitutional law of the USA, and observed that “life” in America also

provides for all essential rights and freedoms for leading a comfortable and enjoyable life.106 He

then relied on E.O. Wilson107 to discuss the significance and impact of environmental protection

for the sake of protecting our quality of “life” and how it emerges from the right to life, liberty and

dignity under Articles 9 and 14 of the Constitution.108 He then discussed how the International

Environmental Principles of sustainable development, precautionary principle, environmental

impact assessment, inter and intra-generational equity and public trust doctrine alongside our

corpus of environmental laws have the purpose of protecting life and nature.109 He then relied on

the Shela Zia case in which it was laid down that the right to life incorporated under Article 9 also

means a right to a healthier and cleaner environment.110 He argued how a person’s dignity is

affected by an unclean environment caused by excess pollution by once again relying on the Shela

Zia case111. He referred to this judgement again when discussing his concern for the environmental

104
Ibid, at para 10.
105
Ibid.
106
2016 CLD 569 [Peshawar], at para 11.
107
E.O. Wilson, “The Creation: An Appeal to save Life on Earth”, (W. W. Norton & Company, 2007.)
108
Ibid, at para 12.
109
Ibid, at para 13.
110
Ibid.
111
2016 CLD 569 [Peshawar], at para 14.

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damage caused112 and even relied on Indian cases for the same as well.113 While the judge’s

application of Articles 9 and 14 was appreciative, Article 4 would have been far more appropriate

to apply here. The most noticeable point here is the court’s constant usage of Article 9 as the basis

for protecting the environment. In “Ishtiaq Ahmed v. Hon’ble Competent Authority through,

Registrar Supreme Court of Pakistan”114, Bandial J. (As he then was) in his additional note while

contemplating upon the limitations imposed under statutory rules procedure on the touchstone of

Article 10A115 on that very same note also observed that the right to access of justice also emanates

from Article 9.116 Hence, an exposition reminiscent of Justice Saleem Akhtar in the Sharaf Faridi

case, although it is only to a certain extent. In “Messrs Getz Pharma (Pvt) Ltd. through Authorized

Person v. Federation of Pakistan, through Secretary, Ministry of National Regulation and Services

and another”117, where the petitioners challenged the price that was set of a certain miracle

medicine that was taken to cure Hepatitis C, the court ruled that affordable drugs are a fundamental

right which is enshrined under the right to health, which although is not explicitly recognized by

the Constitution forms part of the right to life under Article 9.118

In “Shahab Utso v. Government of Sindh through Chief Secretary and others”119, the

Supreme Court observed that the right to uncontaminated drinking water can be considered the

bedrock to the right to life under Article 9.120 Once more, a right to clean water makes a comeback,

albeit this time it is been narrowed down to clean uncontaminated drinking water, but nonetheless,

112
Ibid, at para 15.
113
Ibid, at para 16.
114
2016 SCMR 943.
115
Ibid, at para 1.
116
Ibid.
117
P L D 2017 Sindh 157.
118
See para 8 of the judgement.
119
2017 SCMR 732.
120
Ibid, at para 22.

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the court’s observation that it is the bedrock to the right to life does show that environmental

protection has always been the cornerstone of Article 9. In “Mst. Bachaan and another v. Province

of Sindh”121, the Sindh High Court observed that separating a married couple against their will is

a violation of right to life under Article 9 and that neither police or any other functionary for that

matter has the right to harass a married couple or their family to separate both of them.122 This is

an accurate observation when it comes to the actual precept of due process which is that it is a

restraint or limitation on the state’s powers which can infringe upon anyone’s life, liberty and

property. Nevertheless, rather than Article 9, Article 4 would have been far more applicable here.

In “Barrister Zafarullah Khan and others v. Federation of Pakistan and others”123, the

apex court once again deliberates upon the right to clean water being part of the right to life by

relying on several judgements of the court on the very same proposition and proceeds to rule that

everyone is entitled to water as it forms the basis of many rights including the right to life, health

and quality of life and that it is a fundamental right to under Article 9.124 The consistency with

including clean unpolluted water under “life” is rather admirable at this point. In “National

Engineering Services Pakistan [NESPAK] (Pvt.) Limited and others v. Kamil Khan Mumtaz and

others”125, the apex court while relying on a previous judgement ruled that “It is now well

established that right to life as envisaged by Article 9 of the Constitution includes all those aspects

of life which go to make a man’s life meaningful, complete and worth living.”126 This judgement

along with others was relied upon in the case of “Human Rights Case No. 17599 of 2018”127, where

121
2017 CLC 1530 [Sindh].
122
Ibid, at para 3.
123
2018 SCMR 2001.
124
Ibid, at para 9.
125
2018 SCMR 211.
126
Ibid, at para 72.
127
2019 SCMR 247.

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the court discussed the matrix and scope of the right to life as established in Pakistani

jurisprudence128 and ruled that “it is by now established law that the right to life includes a right

to basic amenities and living standard, access to clean drinking water, electricity, employment

etc.”129 The apex court thus once again discusses each and every facet of life and includes with

within the precept of “life” within Article 9. In “Sheikh Asim Farooq v. Federation of Pakistan and

others”130, the Lahore High Court thoroughly discussed the jurisprudence of Article 9 as

established by Pakistani courts and observed that

“Article 9 guarantees the right to life which includes the right to a clean and healthy

environment. Our superior courts have interpreted the right to life to include a number of natural

and legal rights under the umbrella of Article 9 such as the right to a clean environment, right to

form a political party and form government, access to educational institutions and access to

electricity.”131

In “Muhammad Abdaal alias Abdali v. Government of Punjab and others”132, while

discussing the maintainability of the constitutional petition in the instant case, the court briefly

discussed the scope of Articles 4, 9 & 10 of the Constitution.133

In “Wing Commander, PAF Base, Samungli, Quetta v. Naseebullah Khan and others”134,

the Balochistan High Court observed that the right to earn a livelihood and the right to utilize

one’s party forms part of the scope of right to life under Article 9. 135 As mentioned numerous

128
See paras 3-4 of the judgement.
129
2019 SCMR 247, at para 4.
130
PLD 2019 Lahore 664.
131
Ibid, at para 26.
132
PLD 2020 Lahore 471.
133
Ibid, at para 5.
134
2021 CLC 1738 [Balochistan].
135
Ibid, at para 10.

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times hereinabove, the protection of property has not at all been safeguarded under Article 9, but

rather it is a separate fundamental right incorporated within Article 24 of the Constitution and has

been safeguarded under Article 4 of the Constitution. Hence, Article 4 read with Article 24 would

have been far more applicable here. In “Mst. Saima Mai v. District Police Officer, Khanewal and

6 others”136, the Lahore High Court once again ruled that the right to life under Article 9 also

included the right to safeguard the matrimonial life of a married couple.137

Hence, we can conclude how Article 9 is Pakistan’s substantial due process, but only to the extent

of incorporating unenumerated rights not explicitly available in the Constitution within it.

However, rather than Article 9, Article 4 would have been far more ideal to enlarge its scope to be

like that of the USA’s substantial due process clause rather than Article 9, as the former is itself a

fundamental right and is only applicable to individuals, while the latter is a standalone

constitutional provision, which can be applied to the society at large.

Justice Field’s exposition of “life” as discussed hereinabove is indeed understandable, as

“life” should not be merely limited to mere animalistic existence but of course must also be

moulded to include every amenity or facility of life there is. It is based on the precept that “life” is

so sacrosanct that it encompasses every aspect that makes a person’s life worth living.

1.6 Conclusion

The important points discussed above are summed up here. This paper has discussed how the initial

jurisprudence of the right to life was first set by Justice Saleem Akhtar and how the superior courts

have been expanding life to cover many other amenities and rights on which either life depends or

are considered as the essentials of life. Now, each and every facet of life has been incorporated

136
2022 CLC 134 [Lahore].
137
Ibid, at para 3.

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under “life” whether it be unpolluted clean water, electricity, health, dignity, property, matrimonial

life or any other amenities or facilities a person is entitled to use and enjoy in his life. Hence, it is

very similar to the precept of “liberty” being interpreted and its scope being enlarged by the

American courts. However, in the US, the validity of a statute can be tested on the vires of “liberty”

under the due process clause and the same can be struck down on its touchstone. The same cannot

be said of Article 9 of the Constitution of Pakistan as the vires of a statute has not been tested and

struck down on its touchstone. Not to mention, the substantial due process clause of the US as

discussed hereinabove has four elements. The first is the equal protection clause, where every

person, even those not constitutionally protected are to be protected by the due process clause; the

second is substantive scrutiny, where substantive inquiries are made into life, liberty and property;

the third is fundamental rights based due process, where various fundamental rights are

incorporated under liberty; and the last one is incorporation or absorption, where the due process

clause has been used to interpret other parts of the Constitution. Article 9 it would seem, does not

fall under the first two elements, but it definitely does fall under the last two elements, particularly,

the third one, which is incorporation.

The incorporation of many rights in “life” is quite similar to what is done with the

incorporation of “liberty” in the US. Hence, we can say that as per the jurisprudence laid down by

the superior courts in Pakistan the right to life comes under substantial due process, but not to the

full extent of substantial due process under the US jurisprudence, while America’s substantial due

process is the right to liberty and even more.

Thus, this is all based on the precept that “life” is very sacrosanct and should not be

infringed at all except in accordance with law, that is to say with sufficient legal justification. Now

what are these legal justifications and what are their extent is something the courts have to decide.

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