(a) Constitution of Pakistan (1973), Arts. 142, 90 & 97:
It is thus obvious under the scheme of the Constitution that Parliament has the exclusive power to make laws with respect to any matter in the Federal Legislative List. The Federal Legislative List has been given in Schedule IV of the Constitution.
In the light of the above-referred provisions of the Constitution read with Item 55 of the Federal Legislative List, it is obvious that with regard to the enlargement of the jurisdiction of the Supreme Court and conferring thereon of any supplemental power falls within the exclusive domain of the Parliament. The Provincial Legislature has no power whatsoever to deal with or to legislate with any matter in the Federal Legislative List. In this context, the Constitution of Pakistan jealously guards the power of the Federal Government and the Provincial Government, and neither of them can make inroad into the domain of the other. In this behalf, it will be advantageous to refer to Articles 90 and 97 of the Constitution of Islamic Republic of Pakistan. Under the former Article, the exercise of the executive authority of the federation shall not be deemed to transfer to the President any functions conferred by any existing law on the Government of any Province or other authority, nor it shall prevent the Parliament from conferring by law functions on authorities other than the President. Similarly, under the latter Article, i.e. 97, the executive authority of the federation shall extend to the matters with respect to which the Parliament has power to make laws including exercise of rights, authority and jurisdiction and under proviso to Article 97, the executive authority of the Federation shall not, save as experssly provided in the Constitution or in any law made by the Parliament extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. The executive authority of the Province has been defined in Article 137;– Subject to the Constitution, the executive authority of the Province shall extend to the matters with respect to which the Provincial Assembly has power to make laws; The proviso to Article 137 of the Constitution reads as under:
“Provided that in any matter with respect to which both Parliament and the Provincial Assembly of a Province have power to make laws, the executive authority of the Province shall be subject to, and limited by, the executive authority expressly conferred by the Constitution or by law made by the Parliament upon the Federal Government or authorities thereof.”
In the light of these provisions, it is crystal clear that the Provincial Legislature or the Governor cannot legislate or deal with any of the subjects to be dealt with or to be legislated upon by the Federal Government. In this behalf, therefore, we have no hesitation to hold that the appointment of a Judge of the Supreme Court as Cooperative Judge under the Ordinance is unconstitutional and beyond the legislative competence of the Provincial Governor.