Per Mushtaq Hussain, C.J(a) Constitution of Pakistan(1973) Art. 248
Court–Disqualification Tribunal Constituted under para. 3–A court– Mere fact of such forum being known as ‘tribunal’ and not ‘Court’–does not in any way detract from its status as court–Article 248 Constitution of Pakistan (1973, held attracted to its jurisdiction in exercise of its authority. [p. 6]
(b) Constitution of Pakistan(1973) Art. 248 & 247
Read with government of India Act, 1935, S. 306– Immunity, duration of Article 248, Constitution of Pakistan(1973) and S. 306, Government of India Act, 1935 being couched in present tense applicable only to persons actually holding office at time of invocation of protection of such Article or section–Legislature being not ignorant of S. 306, Government of India Act, 1935, omission of words “against any person who has been” from Art. 248(1), held clearly shows Constitution maker,s intention to limit protection only to period during which dignitary concerned served and such immunity vanishes once person removed from office or ceased to hold office for any other reason.
Article 248(1), Constitution of Pakistan (1973) is more in the nature of a corollary or implementation of the provision of Article 47. [p. 8]
In the case of the prime minister Article 96 provides for a vote of no confidence for his removal from his office. Here again, a forum has been provided for dealing with a delinquent prime Minister and for removing him from his office in consequence of a resolution passed by the National Assembly. Since such a high powered body had been given the jurisdiction and authority to deal with the prime minister who was misconducting himself, it was considered to be meet and proper that during the time such a forum was available in court or other authority should be allowed to take upon itself to perform his duty. This forum was available only so long as prime minister held the office because once he laid the reins of his office he was no longer the prime minister and the question of his removel did not arise. Artcle 248(1) of the constitution, therfpre dealt with the prime minister in the same way as the president during the holding of the office.[p. 8]
It is quite clear, therefore, that Article 248(1) is in the nature of a restraint placed on courts in relation to acts dealing with the exercise of powers and performance of functions of the respective office by the officers mentioned in that Article who are in office. By section 306 of the Government of India Act, 1935 such persons and, of course it need not be reiterated here, that the persons mentioned in that section, did nit hold representative officers, were dignitaries appointed by the Emperor of India in London. It was, therefore, thought necessary to grant them limited protection in respect of the functions performed by them which were relatable to their office even after they had ceased to hold the offices
by providing that if proceedings were to be taken against them or process was sought to be issued to them from any Court after he had relinquished the office, the sanction of the Governor-General will have first to be obtained.
section 306, as well as article 248 are couched in the present tense and, therefore, were applicable only o those who were, at the time the protection of the Article or section was being invoked, actually holding the office.
The Legislature was not ignorant of section 306 of the government of India Act, 1935, and the omission of the words “against any person who has been”
from article 248(1) clearly shows that the framers intended to limit the protection only to the period during which the dignitary concerned was serving and was thus amenable to the jurisdiction of the Parliament for any act or misconduct that he had performed. [p. 8]
The reference to Article 248(2) and (3) is not at all relevant. Sub, Article (2) deals with criminal proceedings while sub-Article (3) deals with process for the arrest or imprisonment of the President or a Governor.Normally, in civil proceedings process for arrest or imprisonment is not issued by a civil court. It is for a criminal Court to do so. Since the bodies referred to above did not have the right to initiate criminal proceedings against the officers mentioned in sub-Article (2), they are not covered by sub-Article (1) and separate provision had, therefore, to be made for it. Since separate provision was being made and was intended only to apply to the president or a Governor; it was made clear that the protection shall be available only so long as the incumbent holds the office. Article 248(1) applies to and protects the holder of the offices mentioned in that Article only during the period that they are in the saddle and once they are removed from that office or ceased to hold it for any other reason, the immunity vanishes. [p. 9]
(c) Constitution of Pakistan(1973) Art. 248
interpretation of statutes–Article 248–Nothing more than an exception to general rule: “No body is above the law”–Hence, held to be construed strictly. [p. 10]
(d) Constitution of Pakistan(1973) Art. 248
Immunity–Article 248(1) even on assumption of giving protection to dignitaries referred to in Article such protection, held, not attracted to illegal acts, not forming part of performance of duty of holder of a representative office. [p. 11]
(e) Constitution of Pakistan(1973) Art. 199
Writ jurisdiction–High Court in its writ jurisdiction confines itself to determining whether Tribunal concerned possessed jurisdiction to go into question before it and if in doing so it transgressed limits of its lawful authority–High court does not sit as a court of Appeal and decide whether evidence sufficed for upholding conclusions arrived at–Tribunal having had authority to decide certain question of law and fact, not open to High Court to reappraise evidence and give finding on rightness or otherwise of Tribunal’s decision–Martial Law Order. [pp. 18 to 20]