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NASRULLAH KHAN HENJRA

Versus

GOVERNMENT OF PAKISTAN

Per Saad Saood Jan, J.
(a) Constitution of Pakistan, 1973, Articles, Preamble, 15 and Federal Legislative List, Part I, item No. 3

It therefore seems that Article 15 was never intended to afford protection against extradition to citizens who are accused of serious crimes in other countries. This view finds support from the fact that item No. 3 of the Federal Legislative List, Part I, of the Constitution specifically empowers the Parliament to make laws on the subject of extradition including the surrender of criminals and accused persons to Governments outside Pakistan. The specific conferment of the power on the Parliament to make laws on the subject of extradition effectively refutes the contention that the Constitution-makers had adopted the practice of the civil law countries with regard to refusal to deport their own nationals for trial in foreign lands. The contention that the legislation enacted in pursuance of this item must be confined to non-citizens is unacceptable; a non-citizen can at any time be deported from Pakistan and in any event, considering the national commitment of Pakistan on the international plane, as avowed in the Objectives Resolution, there is hardly any justification for drawing a distinction between the citizens and non-citizens in this regard. It is therefore difficult to hold that the Act is void on account of its conflict with Article 15 of the Constitution. [pp. 27 &28]A

CHIEF JUSTICE OF PAKISTAN IFTIKHAR MUHAMMAD CHAUDHRY

Versus

PRESIDENT OF PAKISTAN THROUGH SECRETARY AND OTEHRS

Per Khalil-ur-Rehman Remady, J-

Constitution of Pakistan(1973) Arts. 209, 211 & 184-

Needless to say that having heard the learned counsel for the parties at some length; having benefited immensely from the invaluable assistance rendered by them, and for detailed reasons to be recorded later about all the questions agitated before us, this Court, passed the following judgment on July 20, 2007 :-

   "For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under :-

(1) MAINTAINABILITY OF C.O.P NO. 21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION

This petition is unanimously declared to be maintainable.

(II) VALIDITY OF THE DIRECTION (THE REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION.

By a majority of10 to 3 (Faqir Muhammd Khokhar, J., . Javed Buttar, J and Saiyed Saeed Ashhad, J, dissenting), the said direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring is set aside.

(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT’S ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIITY OF THE ORDER DATED15-3-2007PASSED BY THE PRESIDENT DIRECTING THAT THE CJP SHALL BE ON LEAVE

The said president’s order No. 27 of 1970 is unanimously declared as ultra vires of the Constitution ad consequently the said order of the President dated 15-3-2007 is also, unanimously declared to have been passed without lawful authority.

(IV VALIDITY OF THE ORDER OF THE PRESIDENT DATRED9-3-2007AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT AND/OR CHIEF JUSTICE OF PAKISTAN

Both these orders are, unanimously, set aside as being illegal. However, since according to the minority view on the question of the validity of the direction (the Reference) in question, the said Reference had been competently filed by the President, therefore, this Court could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.

(V) VALIDITY OF THE APPOINTMENT OF THE HON’BLE ACTING CHEF JUSTICE OFPAKISTANIN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CJP

The appointments in question of the Hon’ble Acting Chief Justice of Pakistan vide notification dated9-3-2007and the notification dated22-3-2007are, unanimously, declared to have been made without lawful authority. However, this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other Constitutional and/or legal obligations by the Hon’ble Acting Chief Justice of Pakistan during the period in question and this declaration is so made by applying the defacto doctrine.

(VI) ACCOUNTABILITY OF THE HON’BLE CHIEF JUSTIE OFPAKISTAN

It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication.

All other legal and Constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.

ORDER OF THE COURT

By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J, and Saiyed Saeed Ashhad, J, dissenting), this Constitution Original Petition NO. 21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007is set aside. As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.

The other connected petitions shall be listed before the appropriate benches, in due course, for their disposal in accordance with law.”

For this petition to be competent, what would, therefore be required to be shown would be that it disclosed a breach of a Fundamental Right; sought repair of the said breach and the consequent enforcement of the said right and further and more importantly that the matter was not one which related only to an individual’s private grievance but was one of public importance. We would, therefore, have to find out whether the petition in hand met the said standards.

The petitioner before us is the holder of one of the top five constitutional offices in the country and alleges his illegal confinement in the President’s Camp Office for about five hours; complains of his subsequent detention, along with his wife and children, for about four days and having been so kept, in-communicado; claims a gross violation not only of the privacy of his home at the hands of some unscrupulous aliens but also of a grave and unspeakable offence to his dignity and asserts also that all this had been done to him to manoeuvre his illegal removal from his office in gross violation of the Constitutional guarantees. Further alleges that his trial by a not legally composed forum comprising also of some members who had a serious bias against him and then the forum proceeding against him in a manner which could not be said to be fair transparent, just and lawful, was offensive of the protection which the Constitution had guaranteed to him.

These grievances, the details of which have been noticed in the earlier part of this judgment, might at the initial glance appear only to be individualistic in nature and personal to the petitioner. But then, he is the Chief Justice of Pakistan; the head of the national judicature and thus a symbol of justice and of the independence of the country’s judiciary. The allegedly contemptible exercise in question not having been directed only against the person for the petitioner but being allegedly a device to remove the Chief Justice of Pakistan from his office in a manner not permitted by the Constitution, demonstrated that the matter in question was no longer a mere private affair of an individual by the name of Iftikhar Muhammad Chaudhry but wad much more.

The questions which would, therefore, emerge for determination, amongst other, would be as to what were the powers available with the executive qua the judiciary; whether a power could be conceded to executive to suspend a Judge of a Superior Court of to restrain him from performing the judicial or even administrative obligations cast on him by the Constitution; could the President send such a Judge, leave alone the Chief Justice of the country, on forced leave; was the President’s Order No. 27 of 1970 not offensive of the Constitutional security guaranteed to the Judges of the Superior Courts and thus ultra vires of the Constitution; was the Supreme Judicial Council a forum competent to try the Chief Justice of Pakistan ; was free access to justice and a trial by a valid, independent and an un-biased forum in a fair and a transparent manner not a fundamental right guaranteed to the people; was the manner in which the head of the national judiciary was sought to be removed from office, a proper, a lawful and a bona fide act on the part of the executive or was it not an act rooted in malice and for a collateral purposes; was the whole exercise in question not an offensive encroachment upon the Constitutional pledge about the independence of judiciary thus offending against the right of the people to ask for a judiciary which could guarantee quality justice for all.

The critical indispensability of dispensation of justice in a society, be it between men and men or between the governor and the governed, could never be over-emphasized. The fact that it is justice and justice alone which cold ensure peace in a society and its consequent strength, security and solidarity, was one of the serious lessons taught to the civilization by its history. And history, be it ancient, biblical, medieval or contemporary also tells us that societies sans justice had never bee permitted to pollute this planet for very long and had either to reform themselves paying heavy costs usually in blood or had else been wiped off the face of this earth. The French, the Russian, the Chinese and more recently, the Iranian revolution are some such lessons. It is perhaps for this very reason that doing of justice is conceivably the most repeated Quranic Command after ‘SALAAT’ and ‘ZAKKAT’. And it is also for the same cause that ‘Right of Access to Justice’ which is inconceivable in the absence of an independent and impartial judiciary, was by now a well-established and a universally accepted human right an would be evident, inter alia, from Article 10 of the Universal Declaration of Human Rights and from Article 14 of the United Nations Convention on Criminal and Political Rights and which right was now being secured by the people in different State by making requisite provisions in their respective Constitutions.

The passionate desire and the consequent determination of the people of Pakistan to establish an independent judiciary to ensure justice and the resultant security, peace and prosperity for themselves, is manifested through the Objectives Resolution which is now a substantive part of our Constitution being Article 2-A thereof and Articles 4, 9, 14, 25, 175, 179 and some others stand incorporated in our Constitution towards the attainment of the same declared and sacred objective.

The above-mentioned Article 9 of the Constitution guarantees protection of one’s life. All the judges and jurists in different ages and from different jurisdictions have been one in saying that the word ‘LIFE’ protected and assured by a various constitutions could never be understood to have been used in a limited or a restricted sense and therefore, did not mean jut the vegetative and the animal life of a man or his mere existence from conception to death. This word had, in fact, to be understood in its widest and fullest context to include all such rights, amenities and facilities which were necessary and essential for the enjoyment of a free, proper, comfortable, clean and peaceful life. When confronted with concrete situations, it was held through various judgments from various countries that the right to live meant the right to live with dignity and honour and included rights such as the right to proper health-care, the right to proper food and nutrition, the right to proper clothing, the right to education, the right to shelter, the right to earn one’s livelihood and even a right to a clean atmosphere and an un-polluted environment. And in some other cases, the nuisance created by municipal sewage, industrial affluents and the hazards caused by a magnetic field produced by high tension electricity wires, were found to be an interference with the enjoyment of one’s right to life. In yet another case from Indian jurisdiction, even access to proper roads for people living in hilly areas was held to be an essential part of the right to life. In more than one cases from our own jurisdiction, it was also declared that since right to live in peace in a just and a fair environment was inherent in the right to life, therefore, the right of access to justice was a well recognized and an inviolable Fundamental Right enshrined in Article 9 of the Constitution and its denial, an infringement of the said right. As a necessary consequence, it was further held that since access to justice was inconceivable and would be a mere farce and mirage in the absence of an independent judiciary guaranteeing impartial, fair and a just adjudicatory mechanism, therefore, the demand for a judiciary which was free of executive influence and pressures; was not manipulatable and which was not a subservient judiciary, was also an integral part and an indispensable ingredient of the said Fundamental Right of access to justice.

While endorsing these views, let me also add that the courts set up by the Constitution or under its authority have been so established not just as a means of securing bread and butter for the members of the bench or of the Bar but to provide justice to the people and the resultant peace in the society and it is thus they, who are the actual stake-holders and for whose benefit and welfare, the judicial system stands created. The judiciary was, therefore, an affair of the public; any offence to its independence would be an encroachment on the right of the people to access justice and finally that the security of service and of the tenure of the Judges was critical for the said independence.

I would, therefore, conclude and hold that access to justice was a Fundamental Right which the Constitution had guaranteed to the people; that the existence of an independent and vibrant judiciary was indispensable and crucial for the enjoyment of the said constitutional assurance and in the absence thereof, this right would be a mere illusion; that without security to the Judges of the Superior Courts vis-à-vis, inter alia, their service and the tenure thereof, the independence of judiciary would be a mere delusion and a chimera; that an allegedly illegal and un-constitutional interference with the tenure of office of the Head of the national judiciary would not be just an injury personal to the Chief Justice of Pakistan but would, in fact, be a serious assault on the said assured Fundamental Right of the public at large and thus of public importance. The blood-soaked, unprecedented agitation by the national Bar and by the people of Pakistan which commenced immediately afterthe 9th of March, 2007and which, unfortunately, also witnessed the loss of at least sixty innocent human lives at different occasions in different cities of the country, leaves hardly any room for proof that the matter was one of public importance.

Consequently, it is declared that this petition and the twenty four connected petitions which had also been heard by us vis-à-vis their maintainability, satisfy all the conditions and requirements envisaged by Article 184(3) of the Constitution and are, therefore, competent. I may add another reason for the maintainability of such a petition in such like situation. It is not known that when disciplinary proceedings were taken even against a peon in the public service and even if such proceedings resulted in the most minor of all actions i.e. a censure, he had a right of appeal and in fact had remedies, upto this Court. But here is a public servant who is the Head of the national Judicature and who stands blessed with constitutional guarantees about his service, when he is removed from his office either for misconduct or on account of his mental or physical incapacity, he is left high and dry and without a door that he could knock at for seeking justice for a Mr. Justice. Providing a remedy to any one who had suffered a wrong was one of the basic norms of justice. Reference may be made to REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD V. QAZI WALI MUHAMAMD (1997 SCMR 141) AND MUHAMMAD MUBEEN-US-SALAM AND OTHERS V. FEDERATION FO PAKISTAN THROUGH SECRETARY, MINISTRY OF DEFENCE AND OTHERS (PLD 2006 SC 602. Since the law does not provide any remedy to a Superior Court Judge who is removed from office, therefore, Article 184(3) of the Constitution was the only mode, in appropriate cases of extra-ordinary nature of the kind in hand, through which such a Judge could seek redress of his grievances.

With these facts and circumstances being available on record, when we juxtapose the two versions i.e. the claim of the CPP that after the President had left the meeting at about 12:30 p.m., he had been kept there in captivity till his denudation had been fully accomplished through installation of Mr. Justice Javed Iqbal as the Acting Chief Justice of Pakistan at 5-03 p.m. and the contrary assertion of the respondents that the CJP was sitting in the Army House of his own pleasure and free will enjoying and appreciating the ‘MATERIAL’ collected against him and had opted to leave the place after 5 p.m. only after he stood stripped of his office, the conclusion is inevitable that it was the CJP’s version which was more plausible and consequently believable and that the claim to the contrary was implausible and unbelievable and we hold accordingly.

The CJP’s claim about the treatment meted out to him, to his lady-wife and children; to the members of his personal staff and even to his domestic servants has been noticed, in some detail, in the opening parts of this judgment. It may, however, be recapitulated that it was the case of the CJP that before he left the Army House/the President’s Camp Office, he had been stripped of all vestiges of his office; that on his way home he had been intercepted by an Army official and a Superintendent of Police who had forced him not to go to the Supreme Court; that when he was nearing his house at about 5:45 p.m., he saw barricades and pickets erected on the road leading to his residence; that on reaching his house, he saw that the national and the emblem flag flying there had been pulled down and he was shocked, though not surprised, that battalions of policemen and men of the ‘AGENCIES’ were swarming inside and outside his house; that his lady-wife, his two young daughters and two young sons stood huddled into one bedroom while the rest of the house had been taken over by the said men; that all his telephone lines and television cables had been disconnected and the mobile telephones and other devices had been jammed; that his domestic servants were whisked away by some ‘AGENCY’ officials and were allowed to return home only after 2/3 days; that till March 13, his daughters were not allowed to go to their school and college; that his seven years old son who suffered from physical handicaps and required constant medical attention, was deprived of the said facilities and that on March 13, when he had decided to walk down to the Supreme Court building to appear before the S.J.C as his cars had been lifted away, he was man-handled by police officials who even caught him from his hair and tried to bundle him into a vehicle which he refused to board on account of his security and safety concerns . He had added that on getting exposed to the world outside on the said March 13, he came to know that some members his personal staff, including an Additional Registrar of the Supreme Court, namely. Hammad Raza who was on officer belonging to the District Management Group and was on deputation with the Supreme Court working also as a Personal Staff office of the CJP, had also been taken away by the men of the ‘AGENCIES’ ; detained at some un-known place; interrogated and pressurized to give evidence against the C.J.P. It may be mentioned here that this Hammad Raza who was the only child of his parents and was the father of three small children including a few months’ old son, was murdered in the early hours of the 14th of May, 2007 i.e. the day on which this Bench was to commence the hearing of this petition and according to his young widow, this was in fact a message for the Judges comprising this Bench.

Summarising the facts and circumstances leading to and attending the impugned exercise in question, it may be stated :-

(a) that it was the CJP who had been SUMMONED to the Army House/the President’sCampOfficefor the 9th of March meeting where the President met him (the CJP) in his Army uniform;

(b) that instead of the persons really concerned with the matter, like the Law Minister and the Attorney General etc., the ones present in the meeting were only the Chiefs of the Intelligence Agencies and General in uniform;

(c) that the CJP was asked to abdicate his office which he declined to do;

(d) that the impugned Reference was then hurriedly put in place asking the concerned officials in the Presidency, the P.M.’s Secretariat and the Law Ministry to remain available despite the said day being a Friday and thus a half working day and while all these matters were being organized and finalized, the CJP was kept in captivity and ‘IN COMMUNICADO” at the Army House/the President’s Camp Office till his ouster was accomplished through making him dysfunctional and appointing an Acting Chief Justice of Pakistan ;

(e) that some imperceptible hands then hastily engineered a meeting of the Supreme Judicial Council the same evening, even using some un-identifiable flying object to transport at least one Hon. Member thereof to ensure his participation in the said meeting;

(f) that the S.J.C. then passed a further order, without there being a request or a prayer for the purpose, and even without being empowered so to do and restrained the CJP from performing his functions as the CJP or even as a Judge;

(g) that to ensure that these designs were fully consummated, without any resistance, the CJP was put under house-arrest and was rendered IN COMMUNICADO; and

(h) that in the rush to achieve the given target, no heed at all was paid by the S.J.C to the objections raised by the CJP about the alleged bias of at least three out of the five Hon. Members of the S.J.C. and to his earnest and persistent demand that the proceedings of the S.J.C. be not held IN-CAMEA and that he be allowed an open and a public trial. [pp. 116, 119, 120, 121, 122, 189, 191, 201] A, B,C, D, F, G, H, I, J, SS, TT, UU

Constitution of Pakistan(1973) Arts. 209(5)(6), 210, 211 & 184-

This then brings me to the next question in the context of maintainability of this petition i.e. whether this Court would have the jurisdiction to deal with the matter in question despite the ouster clause contained in Article 211 of the Constitution. Although, what is relevant for the said purpose are only the provisions of clauses (5) and (6) of Article 209 and the provisions of the said Article 211 of the Constitution but for a better understanding of the issue, it would be appropriate to notice the entire scheme envisaged by the Constitution for the removal of a Superior Court Judge who, on account of some mental or physical disability, was no longer capable of discharging his said obligations or who had misconducted himself and was no longer a desirable person to adorn the said high office.

A perusal of the above-quoted provisions of Article 209 would reveal that clauses (1) to (4) thereof envisage the existence and the constitution of Supreme Judicial Council while the provisions of clauses (5) and (6) of the said Article 209 tell us of various steps of the exercise leading to the removal of a Superior Court Judge. I may add that as would appear from the said provisions, the action in question could now be initiated by both i.e. by the President as also by the Supreme Judicial Council itself. Since in the present case, the proceedings in question had commenced at the instance of the President, therefore, I would confine myself only to the said situation.

It thus transpires that the exercise in question prescribed by Article 209 of the Constitution consists of the above-noted eight stages or steps starting with the receipt of the relevant information by the President and ending, either with the dropping of the proceedings against the concerned Judge, or his removal by the President, as the case may be. Let us now revert to the provisions of the ouster clause i.e. Article 211 of the Constitution to find out the extent to which the Constitution seeks to protect the said exercise against judicial scrutiny. The said provisions have been quoted above but are being reproduced hereunder for ready reference:-

   "211.  Bar of Jurisdiction.  -  The PROCEEDINGS BEFORE the COUNCIL, its REPORT to the PRESIDENT  and the REMOVAL OF A JUDGE under clause (6) of Article 209 SHALL NOT BE CALLED IN QUESTION in any COURT.  (Emphasis and under-lining has been supplied).

It will thus be noticed that out of the above-mentioned eight steps in the exercise in question, what is sought to be protected are the following three matters only, namely :-

   (i)    proceedings before the Council;

   (ii)   report of the S.J.C to the President, as a result of the said proceedings; and finally,

    (iii)  the removal of the concerned Judge.

Meaning thereby that the Constitution makes no attempt at all to keep the remaining matters out of the purview of the Courts of law, namely :-

    (i)    receipt of information by the President, from any source, about the mental or physical disability of a Judge or about his being guilty of misconduct;

    (ii)   collection of material in support of the said information;

    (iii)  formation of opinion by the President about such a disability or misconduct of a Judge; and the consequent

    (iv)   direction (generally called a Reference) by the President to the Council to inquire into the matter.

The submission loses sight of the fact that the word ‘PROCEEDINGS’ does not stand alone or unqualified in the said provision but stands restricted and qualified by three other words i.e., ‘BEFORE THE COUNCIL’. What we, therefore, need to find out is not what is meant by the word ‘proceedings’ but the meaning of the expression “PROCEEDINGS BEFORE THE COUNCIL”.

According to the English language dictionaries, the word ‘PROCEEDINGS’ means the ‘ACTS’ the ‘ACTIONS’, the ‘DEEDS’, the ‘STEPS’ and the ‘HAPPENINGS’ while the word ‘BEFORE’ means ‘IN FRONT OF’ or ‘IN THE PRESENCE OF’ . And when translated into simpler language, easily comprehensible by all concerned, the expression, ‘THE PROCEEDINGS BEFORE THE COUNCIL’, would mean, the acts, the actions, the deeds, the steps and all the happenings taking place in front of or in the presence of the Council. Therefore, the said expression would cover only those matters which take place before or in front of the S.J.C. and no other. Meaning thereby that any event or business or any part of the exercise in question taking place elsewhere would not fall within the purview of the said expression e.g., receipt of relevant information by the President; collection of evidence relating thereto; formation of opinion by the President about making a Reference in the matter to the S.J.C. and the consequent direction to the said Council. Needless to add that the exercise envisaged by Article 209 is bi-foral i.e. certain things happening at the President’s end and other things taking place before the S.J.C. And if the framers of the Constitution had understood English language as the said learned ASC for the Federation is canvassing i.e. proceedings before the Council meaning “everything from the start to the end”, then the founding fathers would not have wasted words to mention also the report of the Council to the President and the removal of Judge by him, in the said Article 211. Every student of law is expected to know the principle which is too well established by now that no redundancy or surplusage could ever be attributed to a draftsman much less to the one drafting the Constitution. It may be clarified that the report of the Council to the President should not be confused as a matter happening before the said Council as the report required to be sent to the President was not something taking place before the S.J.C but only a result of whatever had transpired or had taken place before it. It may be added that if the intention of the Constitution was to grant immunity to all the acts and proceedings “from the start to the end”, then there was nothing stopping the Constitution makers from saying in Article 211 simply that no proceedings under Article 209 would be called in question in any court, which was not done and what had instead been done was grant of protection to some only of the proceedings envisaged by the said Article 209.

There is no cavil with the proposition that the word “PROCEEDINGS” is a comprehensive term and would ordinarily include every step towards the progress of a cause in a court or before a tribunal. But then we also need to remember that a narrow or a wider import could be given to the said word depending upon the nature and the scope of the enactment in which the same was used with particular reference to the language of the law in which it appeared. Reference may be made to GANGA NAICEEN VS. SUNDARAM AYYAS (AIR 1956 Madras 597). Reference may also be made to MUHAMMAD ISMAIL’S CASE (PLD 1969 SC 241) wherein it ha been declared by this Court that the purpose of construction or interpretation of statutory provisions was no doubt to ascertain the true intention of the Legislature, yet that intention had, of necessity, to be gathered from the words used by the Legislature, itself and that if the words were so clear and unmistakable that they could not be given any meaning other than that which they carried in their ordinary grammatical sense, then the said were the meanings to be attached to the said words. As has been mentioned above, the word “PROCEEDINGS” used in Article 211 of the Constitution did not stand unqualified in the said provision but stood restricted by express words i.e., ‘BEOFRE THE COUNCIL” and the said word, therefore, had to be given a restricted meaning in the context of the language used in the said provision.

Having thus determined the operational area of Article 211 of the Constitution and the extent to which the immunity granted by it extended, we revert back to the petition in hand and find that the acts impugned therethrough were two-fold i.e. the actions taken on the 9th of March at the President’s end including the making of the direction under clause (5) of Article 209 i.e. sending of the Reference to the S.J.C. and then some proceedings taken before the said Council. It has been declared above that, no immunity attaches to the happenings and the actions prior to the matter reaching the S.J.C. and the said actions were, therefore, subject to scrutiny by this Court like any other administrative act. However, the matter relating to the proceedings before the S.J.C. which also stood questioned before us, warrants further examination.

Essentially, because of the repeated military interventions, our Constitutional and Judicial history is brimful with ouster of jurisdiction clauses and the treatment metted out to the same by the Superior Courts. The issue has been so frequently raised and equally frequently examined that nothing new remains available to be said on the subject. It has been repeatedly and consistently declared by this Court that a mere incorporation of such a provision in the Constitution or in any other law for the matter, did not by itself preclude a court from entering the arena sought to be protected as the judicial power, being inherent in this Apex Court, it was not its privilege but in fact is obligation to examine such like ouster clauses and then to determine the extent of the claimed immunity. [p. 123, 125, 126, 127, 128, 129, 130] K, L, M,N,O,P,Q,S,T

Constitution of Pakistan(1973) Arts. 6, 245(1), 243(1), 244, 237, 238, 239 & Third Schedule—-

53. On a plain reading of the provisions of Article 245(1), the functions of the Armed Forces can be bifurcated into two categories, namely, they shall (1) defend Pakistan against external aggression or threat of war, and (2) subject to law, act in aid of civil power when called upon to do so. Under clause (1) of Article 243, the control and command of the Armed Forces is vested in the Federal Government, therefore, in the performance of both the categories of functions, the Armed Forces act under the directions of the Federal Government. Thus, the provisions of clause (1A) of Article 243 under which the supreme command of the Armed Forces vests in the President, does not, in any manner, derogate from the power of the Federal Government to require the Armed Forces to defend Pakistan against external aggression or threat of war, or to act in aid of civil power in accordance with law. The Constitution does not envisage any situation where the Armed Forces may act without any direction by the Federal Government.

Thus, essentially, a proclamation requiring the aid of the Armed Forces must come from the civilian authorities and as soon as the necessity for the exercise of the military power is over, the civil administration must, of necessity, be restored, and assume its normal role. 54. In the cases of Dosso, Begum Nusrat Bhutto, Zafar Ali Shah and Tikka Iqbal Muhammad Khan the Court did not take into consideration the above aspect of the matter and rendered judgments, not on the force of the constitutional provisions, but by recourse to the theory of revolutionary legality propounded by Hans Kelsen, the doctrine of civil and state necessity and the principle of salus populi est suprema lex, and thus kept open the gate for military intervention for all times to come. Let it be made clear that any action of the Armed Forces undertaken without a direction by the Federal Government shall be unconstitutional, illegal, void ab initio and consequently of no legal effect. Any member of the Armed Forces, including the Chairman, Joint Chiefs of Staff Committee and the three Services Chiefs, namely, the Chief of Army Staff, the Chief of Naval Staff and the Chief of Air Staff, or any person acting under their authority, or on their behalf, who acts in the performance of either of his functions of defending Pakistan against external aggression, or of acting, subject to law, in aid of civil power without any direction by the Federal Government acts in violation of the Constitution and the law and does so at his own risk and cost. This Court, in Liaquat Hussain’s case (at page 626 of the report), has held that martial law cannot be imposed in Pakistan in view of the change in the language of Article 237 of the Constitution wherein the words “martial law” have been omitted, the legal effect of which is that the Parliament cannot make any law indemnifying any person in the service of the Federal Government or a Provincial Government, or any other person in respect of any act done in connection with the maintenance or restoration of order in any area in Pakistan. This change in the language of Article 237 of the Constitution was preceded by a discussion of the term ‘martial law’ in Asma Jilani’s case, a decision which was rendered only a year before the promulgation of the Constitution of 1973.

Along with Article 237 as finally approved, the framers of the Constitution also legislated Article 6 of the Constitution, which provided that any person who abrogated or attempted or conspired to abrogate, subverted or attempted or conspired to subvert the Constitution by use of force or show of force or by other unconstitutional means shall be guilty of high treason.

In the above background, we affirm and approve the law laid down in Asma Jilani’s case that martial law in any form and by whatever name called, for any purpose whatsoever cannot be imposed in Pakistan. We also firmly lay down that no proclamation of emergency can be issued, the effect of which is to hold in abeyance the Constitution, or its subsequent mutilation by incorporating amendments in it by an authority not mentioned in the Constitution and in a manner not provided for in the Constitution.

56. Each member of the Armed Forces, as per his oath under the Third Schedule to the Constitution in pursuance of Article 244, is bound to bear true faith and allegiance to Pakistan and uphold the Constitution which embodies the will of the people. He is also sworn not to engage himself in any political activities whatsoever. He also solemnly affirms and declares that he will honestly and faithfully serve Pakistan in the Pakistan Army (or Navy or Air Force) as required by and under the law. The learned counsel for the petitioners vehemently contended that General Pervez Musharraf, by his actions of 3rd November, 2007, not only violated his oath as a member of the Armed Forces, but also overthrew the solemn pledge he made as President of Pakistan of performing his functions and discharging his duties honestly, to the best of his ability, faithfully in accordance with the Constitution and the law. We agree with the contention of the learned counsel that General Pervez Musharraf failed to abide by his oath to preserve, protect and defend the Constitution. The Constitution was framed to continue to be in force at all times. By Article 6, an in-built mechanism was provided to safeguard the Constitution from its abrogation or subversion by anyone, that is to say, it could neither be cancelled by anyone nor could it be overthrown or undermined by anyone in any manner or mode whatsoever. Thus, unless and until the Constitution is altered or amended in accordance with the procedure laid down in Articles 238 and 239, or it is repealed on the pattern of the Interim Constitution under the provisions of Article 266, which too, is possible by recourse to the provisions of Articles 238 and 239, its operation and enforceability cannot be interrupted even for a single day, nay a single moment except as specifically provided in the Constitution itself. The Constitution has not contemplated any situation where it can be held in abeyance at the will or whims of the Chief of Army Staff and to be revived after he has achieved his objectives. Let it be stated in unequivocal terms that the validity accorded in the past did not give a licence to any holder of the office of Chief of Army Staff of repeating such acts at his will. It is hereby firmly laid down that the holding in abeyance of the Constitution or any other act having the effect of discontinuing the operation and the enforceability of the Constitution for a single moment in a manner not authorized under the Constitution is nothing but an overthrowing of the Constitution, so to say, the subversion of the Constitution and thus constitutes the offence of high treason. Therefore, the military rule, direct or indirect, is to be shunned once and for all. Let it be made clear that it was wrongly justified in the past and it ought not to be justified in future on any ground, principle, doctrine or theory whatsoever. Military rule is against the dignity, honour and glory of the nation that it achieved after great sacrifices 62 years ago; it is against the dignity and honour of the people of Pakistan, who are committed to upholding the sovereignty and integrity of the nation by all means; and it is against the dignity and honour of each and every soldier of the Armed Forces: Pakistan Army, Pakistan Navy and Pakistan Air Force, who is oath-bound to bear true faith and allegiance to Pakistan and uphold the Constitution, which embodies the will of the people; not to engage himself in any political activities whatsoever; and to honestly and faithfully serve Pakistan in the respective services. Within such parameters, a soldier must remain committed to defending Pakistan until the last drop of his blood against external aggression or threat of war, and subject to law, acting in aid of civil power when called upon to do so under the directions of the Federal Government. In the course of the discharge of his duties, a soldier, therefore, is obligated to seeing that the Constitution is upheld, it is not abrogated, it is not subverted, it is not mutilated, and to say the least, it is not held in abeyance and it is not amended by an authority not competent to do so under the Constitution. If a member of the Armed Forces acts in aid of a person who does any of the above acts, or any other similar act, he violates his oath and renders himself liable to action under and in accordance with the Constitution and the law.
57. It may be mentioned that the power to amend the Constitution is an onerous task assigned to the Parliament, which represents the will of the people through their chosen representatives. It is to be carried out in accordance with the procedure prescribed in Articles 238 and 239 of the Constitution, viz. by a two-third majority of the members of both the Houses of Majlis-e-Shoora (Parliament), and by no other means, in no other manner, and by no one else. The holding in abeyance of the Constitution in the first place, and then making amendments in it by one man by the stroke of his pen, that is to say, in a manner not envisaged or permitted by the Constitution, are mutilation and/or subversion of the Constitution simpliciter, and no sanctity is attached to such amendments per se. No sanctity attaches to them if they are made after a declaration to that effect is made by the Court while adjudging the validity of such assumption of power. Equally bereft of sanctity remain the amendments of any such authority, which are ratified, affirmed or adopted by the Parliament subsequently and deemed to have been made by the competent authority. In our view, only those acts which were required to be done for the ordinary orderly running of the State could be protected. Similarly, only such past and closed transactions could have been protected, which were otherwise not illegal at the relevant time, and rights, privileges, obligations or liabilities had been acquired, accrued or incurred, or any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment had been taken. The actions taken by General Pervez Musharraf on 3rd November, 2007 and thereafter being unconstitutional, illegal and void ab initio, the principle of past and closed transaction was not attracted even otherwise on account of the distinguishing features between the martial laws of 1958 and 1977 and emergency of 1999 on the one hand, and the emergency of 3rd November, 2007 on the other, as explained in this judgment, including passing of order dated 3rd November, 2007 by a seven – member Bench of this Court in Wajihuddin Ahmed’s case, arrest of Judges, Judges not accepting it or applying for pension, sustained resistance in the shape of protests by the Bar Associations, masses, including civil society, political workers, students, labourers, large scale arrests of lawyers, resolution of foreign bars, etc.
58. In the light of the above discussion, it is held and declared that the amendments purportedly made by General Pervez Musharraf from 3rd November, 2007 up till 15th December, 2007 (both days inclusive) were neither made by an authority mentioned in the Constitution nor the same were made following the procedure prescribed in the Constitution and were, therefore, unconstitutional, illegal and void ab initio. Accordingly, the Constitution (Amendment) Order, 2007 (President’s Order No. 5 of 2007), the Constitution (Second Amendment) Order, 2007 (President’s Order No. 6 of 2007) and PCO No. 1 of 2007 as also Oath Order, 2007, which were tantamount to amending Articles 238 & 239 and the Third Schedule to the Constitution (oath of office of Chief Justice/Judge) respectively, or any other instrument having similar effect are unconstitutional, illegal and ultra vires of the Constitution and consequently of no legal effect. [p 1027,1028, 1031, 1032, 1039, 1070]D, E, F, G, H, I, FF, GG

Per Syed Zahid Hussain J-

Constitution of Pakistan(1973) Art. 185(2)(a)-
r/w Penal Code (XLV of 1860) Ss. 302, 342 & 365-

From the perusal of the constitutional and legal provisions and above pronouncements by the esteemed Hon’ble Judges, the developing trend is evident and some of the principles deducible therefrom are that :-

        (i)         Where the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life, the appeal lies before this Court as of right under Article 185(2)(a) of the Constitution of Islamic Republic of Pakistan.  Provision of a separate procedure for that purpose under Order XXII of the Supreme Court Rules, 1980, is a strong indicator in this regard.  This it self is indicative of a the importance and significance of acquittal which places the matter on different footing than others.

        (ii)This Court has every right of examining evidence in a criminal appeal if the interest of justice so demand for which purpose each case will have to be adjudged upon its on facts and circumstances and in case the Court reaches the conclusion that the person has been dealt with in violation of the accepted principles of the administration of criminal justice then "no technical hurdles should be allowed to stand in its way of doing justice and seeing that injustice is not perpetuated or perpetrated by the decisions of the Courts below."

        (iii)As an ultimate Court, this Court must give due weight and consideration to the opinions of the Courts below and normally the findings should not be interefered where the same "are reasonable and were not arrived at by the disregard of any accepted principles regarding the appreciation of evidence." But where defect is discovered about tenability of findings in that case it shoudl be open to the Court to come to its own independent finding upon re-examination of the evidence untrammeled by the opinions of the Courts below.

         (iv)The position of the Trial Court being close to the seen of ocurrence and familiar with the ways and practices of the people involved having the benefit of recording evidence of witnesses, watching their demeanour, view formed by the said Court should not be disregarded lightly.

           (v)        The benefit of any reasonable doubt must go to the accused person but where the conclusion about such a doubt leading to acquittal is wholly illogical or unreasonable, the same can be reversed by the higher Court.

         (vi)While giving the benefit of all doubts to the accused, the Court has still to discharge the onerous function of not allowing an offender to ascape justice.

         (vii) The benefit of doubt if any can not be given to the prosecution.

          (viii) Mere suspicion howsoever strong or possible is not sufficient to justify conviction and all circumstances sought to be relied for basing conviction upon circumstantial evidence must be established beyond doubt.

         (ix) Straining of evidence either in favour of the prosecution or in favour of the accused should neither be countenanced nor encouraged.

         (x)        While examining the views expressed by the courts below it should be seen that the findings are not based on mere assumptions and conjectures.

         (xi) The acquittal should not be interfered with, merely on the ground that another possible view of the evidence was available.

         (xii) It is the fundamental duty of the prosecution to prove the guilt to the hilt and not of the accused to prove his plea of defence to the hilt and that the weakness or falseness of the defence plea is not to be taken into consideration while awarding punishment.

         (xiii) That the Court is to appraise evidence without being is wayed away emotionally as accused is presumed to be innocent, until the guilt is proved against him by producing evidence of incriminating nature to connect him with the commission of crime beyond shadow of reasonable doubt.

         (xiv) The principle that if a witness is not coming out with the whole truth his evidence is liable to be discarded as whole is not that absolute and stand modified as his testimony will be acceptable against one set of accused, though rejected agaisnt the other subject to the rider that it must get independent corroboration on material particulars from credible evidence based on the principle of "sifting chaff out of grain".

These are merely some of the known established principles being followed by the Courts and certainly not exhaustive of situations arising from time to time and case to case. [p. 723] A

As the old adage goes about the onerous duty of the Court to sift chaff from the grain, the evidence brought on record by the prosecution and the defence plea of the appellant/accused has been analyzed from all angles to find out as to how far the incriminating material is available to bring home the guilt and his involvement in the commission of the offence. It has to be kept in mind that it is an unseen incident, the charge against him was of the demand of ransom and murder of Abdul Ghafoor. Noor Muhammad facther of the victim as per the evidence is an illiterate person, unable to read or write, it is but natural if there was not that meticulous consistency in his stance. But visible and obvious lapses on the part of prosecution are not understandable. The foundation of the case was raised on the ground of friendly contacts between Muhammad Sharif appellant and Abdul Ghafoor (deceased); the transaction of sale of land and the business of plastic material between them. No investigation however was conducted on this aspect. Even the letter which became the basis for ransom demand its receipt by the father of the victim was also a question mark. No effort was made to reach those children who delivered the said letter to the Chowkidar of the Hotel, nor even the Chowkidar was investigated. Neithr the Chowkidar nor the owner of the Hotel Muhammad Bashir, who read out and explained the letter to Noor Muhammad were produced before the Court. It only means that Investigators did not perform the duty as was warranted by law.

However, the arrest of appellant itself appears to have unfolded the whole episode. He made disclosures and provided solid clues. He led the investigators to the place of occurrence wherefrom the dead body and other incriminating articles were recovered. He, by making confessional statement before the Magistrat solved the mystery as to how and why this all happened. The alteration that took place between the two about the payment of money, the harsh language and abuses hurled by the deceased resulting in spontaneous ugly situation of provocation taking the names of mother, sister and wife, pushing of the deceased by the appellant from the mountain and stoning him. There appears no valid justification to disbelieve Dr. Shaoib Gola AC/SDM, (P.W.6) on official who had neithr any enmity with the appellant nor any reason to misstate the facts.

The chain of events, which led the Investigators to ultimately unearth the facts was the pointation of the place of ocurrence by the appellant and statement of facts given by him before the Magistrate. Being conscious of the risk of use of retracted confesson, it is observed that it can not be used alone as evidence for conviction, the other evidence of linkages is necessarily to be considered. The recovery of the dead body on the lead provided and at the pointation of the appellant and disclosures of events as to how it so happened, the medical evidence, the report of Chemical/Serologist, the recovery of currency notes Rs. 20,000 from his residence on his pointation from the box lying underneath the cot are all important pieces of corroborative evidence which cannot be ignored. The later denial of every thing by the appellant including the disclosures and even appearance before the Magistrate looses its worth in the light of the above hard facts. His plea of torture by the investigators as per his statement u/s. 342, Cr.P.C. also was an after thought. Some doubt if at all that can be entertained is about his intention to kill, which will be examined in the later part of the judgment.

It has carefully been noted, examined and analyzed that the prosecution itself has laid great reliance and emphasis upon the lead provided by the appellant to the place (the mountain) wherefrom the dead body of Abdul Ghafoor (deceased) was recovered from underneath the stones on his pointation. Such an information of fact disclosed, which led to the discovery and recovery of incriminating articles and material assumes relevance and significance. For considering the import and effect of such disclosures, discoveries and consequential recoveries, the provisions of Art. 40 of the Qanun-e-Shahadat Ordr, 1984 get attracted.

There thus remains no doubt that the disclosures made and the clues provided by the appellant himself and unbroken chain of events furnished sound proof leading to the irresistible conclusion that the appellant was the person who was responsible for the commission of the offence, whereby Abdul Ghafoor lost life. However the justification sought to be advanced for this is the provocation by the deceased, which may be examined now.

The provocative conduct and attitude of deceased i.e. huring of abuses and calling bad names addressing his mother, sister and wife before his death cannot altogether be ignored. This, as stated by him, led to the incident of pushing of the deceased by him from the mountain, stoning him and covering him with the stones recovered from the site. All this tends to show the resultant death of Abdul Ghafoor under such peculiar provocative circumsstances, which may be relevant for considering the quantum of the sentence in such a context.

Now, therefore, is the other important question of quantum of sentence, which has engaged our serious attention. As discussed above the complaint of Noor Muhammad fathr of the deceased was that his son had left his house on10-9-1995alone. The appellant had not gone to their residence, to take him along by force or otherwise. He was empty handed and had no crime weapon with him. There was apparently no premeditation for killing of any one. The deceased was carrying a jug & glass for water with him. Who took water and bought some lemons also. He went to the appellant when both of them went to the mountains where the ugly altercation gave rise to the situation as the deceased abused him by taking the names of his mother, sister and wife. Due to this sudden eruption of hot words, attitude and conduct of deceased a a flared up situation arose.

The instances are not lacking for even this Court had been altering and converting the death sentence into a lesser penalty. It is so, as the law itself clause (b) of section 302, P.P.C. empowers the Court to inflict either death penalty or imprisonment for life for which purpose however while exercising the choice, a discretion is left with the Court to be exercised keeping in mid the facts and circumstances of a case.

It has been seen and observed from the perusal of the various precedents in relation to section 302 P.P.C in particular its clause (b), that there is a choice and discretion left with the Court to inflict punishment “with death or imprisonment for life as tazir having regard to the facts and circumstances of the case. “The infliction of death sentence would necessarily mean the “deprivation of life” of the individual i.e. a human being. Life as we know in common parlance is the blessing of God. It is considered o be “the immediate gift of God and a right inherited by nature in every individual”. 1. It means the period during which life lasts or the period from birth to death. Our Constitution bestows a fundamental right under Article 9 that “No person shall be deprived of life or liberty save in acordance with law. ” It starts with “no” which means “not any, not at all. “2. It clearly signifis a prohibition and forbids the deprivation of life of any person. The exception being that such a deprivation can take place in accordance with “law”. It is thus the “law”, which can provide for depriving a person of his life. Imposition of death penalty is provided by certain laws, Pakistan Penal Code, is one such law. In the context of clause (b) of section 302, P.P.C a very heavy duty is assigned to the Courts and the Judges to weigh and analyze the facts and circumstances of the particular case, before exercising discretion of awarding penalty.

There can be no cavil that depending upon the circumstances, the background and the facts of a case, the Court is obliged to exercise option of awarding penalty. Without hesitation it may inflict death penalty if the victim had been done to death in a ghastly, cold blooded, burtal manner or roasted alive etc. In a recent pronouncement in Iftikhar Ahmed Khan v. Asghar Khan and another (2009 SCMR 502) it has been noted that :- “In other words, the law has conferred iscretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course. Question arises, as to what could be those facts and circumstances in whch penalty of death must be imposed and lesser penalty of life imprisonment should not be awarded. The analysis of all the cases has led us to a conclusion that from the facts and circumstances of the case, if the Court finds the manner and method of incident, to be in the nature of brutality, horrific, heinous, shocking, involving terrorist nature, creating panic to the society as a whole or in part, callous and cold blooded, in such cases (which list is not exhaustive), the penalty of death must not be withheld. In other words, grave inhuman attitude, acts, manners, method and the criminality of actions are the constituents, elements and the instances, where punishment of death must be awarded.” The Court is therefore, expected to proceed very carefully and cautiously in the exercise of such a discretion and not to ignore the gravity of the offence committed.

Adverting now to the facts of the instant case, on re-appraisal of the entire evidence in this case, we find that the conviction of the appellant by the learned High Court was absolutely justified. However, the peculiar facts and circumstances noted above including that he was acquitted by the Trial court but was sentenced to death by the learned High Court persuade us to adopt a lenient view in the matter of infliction of sentence as, (a) there was no apparent planning, premeditation or intention to kill the deceased; there being no preparatio by the appellant in this regard nor he had any crime weapon with him. (b) filthy and vulgar abuses hurled and cursing by the deceased and thus heated altercation infuriating and giving rise to provocation. (c) that the action of a man is to be judged in the background of the society to which he belongs as he is creature of his environment (d) in any case a serious doubt prevaililng as to what actually happened just before the incident and remaining shrouded in mystery. Thus the death penalty, in the facts and circumstances, mainfestly appears out of al proportions to the offence. We, therefore, find it eminently a fit case in which the awarding of life imprisonment would have met the ends of justice.

Therefore, while deciding this appeal and maintaining conviction, we modify the sentence by converting the same from death to imprisonment for life. The rest of the conviction will remain intact. Benefit fo section 382-B Cr. P.c. will be available to him. The appeal is partly accepted to the extent of modification of sentence as per above. [pp. 738, 741, 744, 745, 748] B, C, D,E, F, G, H & K

                                                                                                                                                                                                   Appeal partly accepted.

SH. LIAQUAT HUSSAIN AND OTHERS
V/S
FEDERATION OF PAKISTAN through Ministry of Law, Justice and Parliament
Frame (6)
(a) Constitution of Pakistan (1973) Arts. 184(3) & 245(3)-

It the learned Attorney-General is relying on clause (3) of Article 245 of the Constitution which suspends the jurisdiction of High Court under Article 199 of the Constitution for such period the Armed Forces Act in aid of civil power, the provision clearly is not attracted to proceedings under Article 184(3) of the Constitution before this Court. To deal with the first part of the above contention of learned Attorney-General, it is necessary to consider the scope of Article 8 of the Constitution, which reads as follows:-

Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void. [p. 653] KKK

(b) Constitution of Pakistan (1973), Art. 8(3)-
r/w Pakistan Armed Forces (Acting in Aid of the Civil Power) Ordinance (XII of 1998) Preamble-

The contention of learned Attorney-General in substance is, that the Ordinance enumerates the power as is evident from the preamble of the Armed Forces acting in aid of civil power as is evident from the preamble of the Ordinance. It is, accordingly, argued by the learned Attorney-General that the Ordinance is a law relating to Armed Forces which has been promulgated to ensure proper discharge of their duties while acting in aid of civil power and as such even if its provisions are found to be in derogation of any of the rights conferred by Chapter I of Part II of the Constitution, it cannot be questioned in view of the provisions of Article 8(3) of the Constitution.

Clause (1) of Article 8 declares all laws, customs or usages having the force of law void to the extent they are inconsistent with the rights conferred by Chapter I (Articles 8 to 28) of Part II of the Constitution. Clause (2) of Article 8 ibid, prohibits the State to enact any law which takes away or abridges the rights conferred by chapter I, Part II and further declares that any law made by the State in contravention of the above prohibition will be void to the extent of such contravention. Sub-clause (a) of clause (3) of Article 8, with which we are concerned here, is in the nature of a proviso or an exception to clauses (1) and (2) of Article 8 (ibid). It provides that any law enacted to ensure the proper discharge of the duty or maintenance of discipline amongst the members of the Armed Forces, a Police Force or any other force charged with the duty of maintaining public order, will be out of the purview of Article 8 of the Constitution. It is well-settled rule of interpretation that the proviso or an exception to the main enacting part is to be construed strictly. Therefore, unless the case falls strictly within the letter and spirit of the proviso or exception, it will be covered by the main enacting part. A careful reading of sub-clause (a) of clause (3) of Article 8 (ibid), shows that in order to take a legislation out of the purview of clauses (1) and (2) of Article 8 of the Constitution two conditions must be satisfied. Firstly, the legislation must relate to Armed Forces or a police force or a force charged with the maintenance of public order and, secondly, the purpose of legislation must be to ensure proper discharge of their duties or maintenance of discipline among them. Here we are only concerned with interpretation of the word “duties” used in Article 8(3)(a) of the Constitution with reference to armed forces which have been called in aid of civil power. The word “duties” in this context would mean duties which can be lawfully assigned to or discharged by the armed forces either under the Constitution or under any law. There is no difficulty in holding that the Ordinance satisfies the above first condition as the legislation relates to Armed Forces. However, the Ordinance fails to satisfy the second condition mentioned in Article 8(3)(a) (ibid). The learned Attorney-General has relied on the preamble of the Ordinance which states “whereas it is expedient to enumerate the powers and duties of the Armed Forces acting in aid of civil power, under Article 245 of the Constitution of Pakistan for the purpose of security, maintenance of law and order, and restoration of peace”, in support of his contention that the Ordinance also satisfies the second condition mentioned in Article 8(3)(a)(ibid). No doubt, the preamble of the Ordinance does State that the object of legislation is to enumerate the powers and duties of armed forces acting in aid of civil power the purpose of security, maintenance of law and or, and restoration of peace, but the preamble can neither restrict nor control the meaning of the enacting part of the Statute. If the enacting part of the Statute goes beyond the preamble it is the enacting part which prevails and not the preamble. The preamble of the Ordinance shows that the Armed Forces have been called in aid of civil power under Article 245 of the Constitution for purposes of security, maintenance of law and order, and restoration of peace. Now if we go to the enacting part of the Ordinance which consists of sections 1 to 14, it shows that the Armed Forces have been vested with powers to convene Courts for trial of civilians charged with the offences specified in the Ordinance. Can the provision in the Ordinance vesting the Armed Forces with power to try civilians for offences nor connected with Armed Forces, be terms as a law which ensures proper discharge of their duties? To answer this question, we must look to the Scheme of the Constitution which is based on the principle of trichotomy of power, meaning thereby that the power is divided between Executive, the Legislature and the Judiciary. Each of these three limbs of the State enjoys complete independence in their own sphere. Since the Armed Forces admittedly are not part of the judicature, the Ordinance vesting the Armed Forces with power to hold trial of civilians in respect of offences which are not connected with Armed Forces, is not immune from scrutiny under Article 8(3)(a) of the Constitution. The preliminary objection raised by the learned Attorney-General to the maintainability of these petitions, accordingly, fails. [p. 654, 655 & 656] LLL

(c) Constitution of Pakistan (1973) Arts. 245, 243, 2A, 5,6,175 & 203-

Thus visualized, the Courts established pursuant to the impugned Ordinance do not fall within the purview of any of the Constitutional provisions. The Constitution envisages trichotomy of powers of the three organs of the State, namely, Legislature, Executive and the Judiciary. The Legislature is assigned the task of law-making, the Executive to execute such laws and the Judiciary to construe and interpret the laws. None of the organs of the State can encroach upon the fields allotted to others. The Constitution dies not countenance the take-over of the judicial functions by the Armed Forces at the direction of the Federal Government in the purported exercise of power conferred on it under Article 245 of the Constitution. Article 245 does not by itself create the law but enables the making of a law which should have nexus with the phrase ‘to act in aid of civil power’. The replacement of Courts either partially or wholly is not recognized under any provisions of the Constitution. A bare reading of Article 243 would show that the Armed Forces are subject to the control and authority of the Federal Government i.e. a civilian Government. No circumstances existed in the country which indicated the breaking down of the judicial organ, necessitating establishment of Military Court. It is imperative for the preservation of the State that the existing judicial system should be strengthened and the principle of trichotomy of power is adhered to by following, in letter and spirit, the Constitutional provisions and not by making deviation thereof on any ground whatsoever. [p. 791] E

The term ‘Court’ as used in the Army Act was intended to include Courts Martial as distinguished from Martial Law Courts. The latter Courts are established during the continuance of Martial Law either during war or even when due to internal disturbances the Civil Administration/ Government completely comes to an end. Military Courts as distinguished by Courts Martial envisaged under the Army Act, 1952, are primarily meant for maintaining discipline in the Armed Forces. The mere fact that the procedure prescribed for trial of offences is mentioned in the Schedule attached to the Ordinance, the provisions of Army Act and the Rules made thereunder are applicable, would not convert these Courts into Courts Martial. The Courts Martial are the creatures of Army Act and Naval Act and Air Force act, which authorise them to decide cases of persons subject to Army Act and to pass orders of sentences in accordance with law. Having regard to the object for which they are created, the functions which they perform, fall within the term “Court” as used in the Army Act, Naval Act, Air Forces Act but do not form part of the judicial hierarchy established under Article 175(1) of the Constitution. The decisions rendered by the Courts martial are entitled to very great respect but are relatable only to persons subject to Army Act but they cannot exercise jurisdiction as is exercised by the ordinary Courts with respect to civilians. The courts Martial can exercise jurisdiction only with respect to persons who are members of the Armed Forces and in certain cases even in civilian offences in respect of those persons alone. But there is no statue, law or any provision of the Constitution conferring jurisdiction on the Military Courts, to try the civilians. It is true that the cases before the Courts Martial are to be disposed of expeditiously but it was never intended under the scheme of the Constitution that under any circumstances they will also hear the cases of the civilians, the adjudication of dispute in respect of whom can only be done by the ordinary Courts as distinguished from Military Courts created under the impugned Ordinance. It is true that the existing conditions, in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved. It is also true that terrorism and other criminal activities are negation of the principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam. A law made to facilitate maintenance of law and order and/or to restore peace and curb terrorism, which is the spirit behind the Objectives Resolution, now forming part of the Constitution by Article 2A of the Constitution, is permissible. But in making such a law the Constitutional provisions cannot be permitted to b contravened. Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance, no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor their functioning and supervision have been made subordinate to it. Thus visualized, they do not fulfil the criteria of a ‘Court’ exercising judicial functions within the purview of the guide-lines provided in the case of Mehram Ali (supra). The establishment of Military Courts is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the impugned legislation does not fall within the category of reasonable classification. Thus visualised, notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called intra vires of the Constitution.

Needless to say that Courts today are choked by ‘legal pollution’ and the society has become litigious. The goal of access to justice is defeated, when too many claims overwhelm the limited resources of the Courts. The right to participate in the legal process as envisaged by the Constitution and a valid law is fundamental to a just society. If the citizens are deprived of their Constitutional rights to have access to justice in accordance with the Constitution and the law because they are unable to utilize the Courts effectively for the resolution of their disputes or the disputes between the Government and the citizens or that a particular class of citizens is excluded from having access to justice by creating a parallel judicial system i.e. a ‘barrier’ to access to justice, certainly such a course would be repugnant to the Constitutional mandate provided under Article 5 of the Constitution that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being within Pakistan while Article 4 thereof guarantees the right of individuals to be dealt with in accordance with law. The right of access to justice to all is enshrined in the Constitution, which is also found in the doctrine of ‘due process of law’. Such a right includes the right to be treated according to law; the right to have a fair and proper trial and the right to have an impartial Court or Tribunal. In Al-Jehad Trust case (supra), it was held that without having an independent Judiciary, the fundamental rights enshrined in the Constitution will be meaningless and will have no efficacy or beneficial value to the public at large. [p.792, 793 & 794] F

Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far as it takes away the adjudicatory powers of the Judiciary. In this connection, reference may also be made to the observations in the Mehram Ali’s case (supra), wherein one of us (Irshad Hasan Khan, J), observed thus :-

“………. Efficiency in the Courts is serious national problem, an expression o greater public concern than even the threat of war. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure ‘inexpensive’ and ‘expeditious justice’. Thus visualized, speedy resolution of civil and criminal cases, is an important Constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law. Viewed in this perspective, no objection can be taken to the establishment of Special Courts for speedy trials and prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997 (hereinafter referred to as the Act). [p. 794] G