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1995 CLC 1039

M.D.TAHIR
V/S
FEDERATION OF PAKISTAN AND OTHERS
Per Ch. Mushtaq Ahmad Khan, J.(a) Constitution of Pakistan(1973), Article. 2A, 40, 199.

That sovereignty on earth belongs to Almighty Allah and authority to govern a State by the people of Pakistan vests in them as being a sacred trust to be discharged through their chosen representatives.[p. 1056]A

Integrity of territories of Pakistan is the inviolable obligation of every person may be an ordinary man or may be a functionary of the State, safeguard whereof is the bounden duty of every Pakistan.[p. 1056]B

All the three organs of the State namely judiciary, legislature and executive are to perform their function within their own areas and the Constitution is to be harmoniously interpreted in such manner that functions of each organ are not unnecessarily interfered with by each other.Policy decisions regarding political issues shall be taken by the Government in power in accord with the Constitution, law and principles of Policy including Article 40 of the Constitution.[p. 1057]C.

Government of the time is duty bound to act in the manner that without alienating territorial sovereignty of Pakistan it adopt policies which are for the betterment of the people of Pakistan in accordance with a view to achieve agalitarian society having a respectful place both externally and internally and for the purpose of achievement of peace and prosperity for humanity.[p. 1057]D.

That international agreements which are a part of foreign policies of the Government shall not be called into question in exercise of power of judicial review and commitment made thereunder are necessarily to be honoured as per mandate of the Constitution itself, and injunctions of Islam.[p. 1058]E.

Therefore, the stand taken by the Federal Government is definite, clear and trasparent.Even otherwise deals/agreements of the nature in dispute do not constitute alienation of territorial sovereignty of the country and are rather permissible under Article 40 and preamble to the Constitution of Pakistan 1973.In the modern times it is not possible for the countries to remain aloof to and to deliver goods both at the home and at the international forums, when the world has almost attained the characteristic of one family and era of iron curtain is a matter of the past.Even those countries which believed and practised the concept of Iron curtain” have thrown their territories open to foreign investment.Interaction of relations and population and the media has made the whole world interdependent.Therefore, a small chunk of land which may be transferred by gift by the Provincial Government of Balochistan in favour of Sultan Qabus of Oman for the purpose of constructions of His Magesty’s residence and offices, etc, does not in any manner amount to alienation of territorial sovereignty of Pakistan over the said area.During the modern times, concept of a territorial sovereignty does not prohibit transfer/alienation of the user of certain rights in the territory/property of a sovereign State in a given situation which is in question in this petition.In his book “introduction of International Law”, Ninth Edition, written by Professor J.G Starke Q.C. published by London Butterworths 1984, at page 152 of the Book, the Author has described the concept of “territorial sovereignty” of the State and the “lesser rights” of other States as follows:-

“As we have seen, one of the essential elements of statehood is the occuption of a territorial area within which State law operates.Over this area, supreme authority is vested in the State.

Moreover, leases or pledges of a territory are frequently made by one state to another, as for example the leases of Chinese territory to Russia, France, Germany, and Great Britain at the end of the century during the so-called ‘Battle of the Concessions between these Great Powers, and the leases of British bases in the West Atlantic to the United States in 1940 in exchange for 50 American destroyers which were urgently needed in the war against Germany.In the case of a lease, temporary sovereignty is exercised by the lessee state, while the lessor state possesses a sovereignty in reversion.Again, some time sovereignty over a territory concern, as for example in the pre-War case after League of Nations controlled over the Saar before its return to Germany in 1935.Thus, international law does not appear to restrict the manner in which the sovereignty as to particular territory can be bestowed on, or withdrawn from any state.”[p. 1057, 1058, 1059]F,G.

Therefore, if the Government has started process of attracting foreign investors to invest in Pakistan, to develop those areas which are still under developed, people of which areas are deprived of even the basic necessities of life, the action is rather to be commended than to be condemned and restrained and therefore this Court in exercise of its discretionary jurisdiction, will not interfere in the stoppage of actions of the Government which are contributory to the welfare of the people of this Country and achievement of ultimate goal to rule the whole world as revealed 1400 years earlier by Holy Prophet(p.b.u.h.)[p. 1059]H.

The first international agreement executed between the Prophet Muhammad(p.b.u.h.) in 1st Hijra which is called as “Meesaq-e-Madina”, the details whereof have been reflected in the earlier part of this order where a portion of the judgment rendered in case of “Nargis Shaheen” (supra) has been reproduced and which judgment was upheld by the Supreme Court of Pakistan, also clearly proves that certain rights can be surrendered by a sovereign Muslim State even in favour of Non-Muslims and such a treaty cannot be said to be illegal, In Rajab 9th Hijrah treaty of Tabuk was entered into between the Muslim State of Madina and Syria and Yaman, details whereof are reproduced as under.[p. 1059, 1060]I.

We therefore,hold that the stand/decision taken/made by the Federation of Pakistan as well as the Provincial Government on the issue of Gawadar is quite definite and transparent; that the territorial sovereignty on any part of Pakistan including the Coastal areas of Balochistan and Gawadar is not proved been alienated by the Federal Government of Pakistan or Provincial Government of Balochistan; that the deal/treaty/arrangement between Government of Pakistan as well as the Sultan of Oman regarding development of Coastal Area of Balochistan as well as Gawadar Coast and construction of link road through the territory of Pakistan to connect of Central Asian States is for the welfare and benefit of the people of Pakistan, is in accord with the Constitutional mandate as well as the Injunctions of Islam, and, that the petitioner is politically motivated, is, hence, has no force and is dismissed in limine.

All the issue which have been raised in this petition are of political in nature and relate to the policy prerogative of making whereof vests in the sitting Government.Consequently has held in cases referred to in the earlier part of the judgment, the question raised in this petition in fact are not justiciable in exercise of the power of judicial review of this Court.The writ petition has not been filed bonafidely.[p. 1060]J.

The Government of the Punjab has been impleaded as party to the petition although the said Government is neither a necessary party nor a proper party and similarly the Province of Balochistan in whom the land in dispute vests has intentionally not been impleaded as party to this petition, hence, the same is not even properly constituted.[p. 1061]K.

The petition has been filed on the basis of conjectures and surmises and is patently ill-founded.During the course of arguments contradictory stands have been taken by the learned counsel for the petitioner.It is quite clear, therefore, that the petitioner has not come to the Court with clean hands and it is a politically motivated petition which is intended to malign a patriotic Government, to hamper inflow of foreign investment in the country and development of under-developed areas of Pakistan to creat misgivings in the relationship between Pakistan, Oman, U.S.A, Central Asian States and other friendly countries. [p. 1061]L.

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