P L D 2012 Balochista n 57
Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J
MUHAMMAD KAMRAN MULLAHKHAIL and others ---Petitioners
Versus
GOVERNMENT OF BALOCHISTAN through Chief Secretary and others ---
Respondents
C.Ps. Nos. 649 and 202 of 2011, decided on 24 th November, 2011.
(a) Constitution of Pakistan ---
----Arts. 8 & 199 ---Constitutional petition ---Laws inconsistent or in derogation of
Fundamental Rights ---Declaring such laws void ---Principles ---If any person files a petition
alleging that a law contr avenes any Fundamental Right conferred by the Constitution, High
Court is obliged to examine the same in its constitutional jurisdiction ---To contend otherwise
would render Art.8 of the Constitution, bereft of meaning and leave citizens denuded of their
Fundamental Rights guaranteed by the Constitution.
(b) Constitution of Pakistan ---
----Arts. 8 & 199 ---Constitutional petition ---Laws inconsistent or in derogation of
Fundamental Rights ---Principles ---If any law, which may impact upon any inalienable hum an
right, was preferably to be assailed sooner rather than later, if it deemed to have been enacted
in contravention of the Constitution.
(c) Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010) ---
----Preamble ---Code of Criminal Procedu re (Balochistan Amendment) Ordinance (III of
2010), Preamble ---Constitution of Pakistan, Arts.199 & Part -II, Chap. 1 [Arts. 8 to 28] ---
Constitutional petition ---"Aggrieved person" ---Executive Magistrate ---Judicial powers ---
Laws inconsistent or in derogati on of Fundamental Rights, assailing of ---Pubic interest ---
Scope ---Petitioner was a practising lawyer who assailed promulgation of Code of Criminal
Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure
(Balochistan Amendment) Ordinance , 2010, whereby judicial powers had been conferred
upon Executive Magistrates ---Authorities contended that the petition was not maintainable
as the petitioner was not an 'aggrieved person' ---Validity ---Ensuring compliance of laws
with human rights/ Fundamental Rights and certitude of laws formed bedrock of civilized
society ---Everyone, in such societies knew their obligations and how those would be dealt
with, if charged of having committed an offence ---Any person might not also have sufficient
time to assail such laws when he or she was facing trial and trial might be over before a
challenge could be launched against it ---Persons who did not have the requisite knowledge
and/or wherewithal to assail such laws might still come within the ambit; therefo re, public
spirited persons, including lawyers, acting bona fide in public interest, might assail such
laws---Constitution, including Fundamental Rights enshrined therein, must not be permitted
to be trampled upon and if a public -spirited person acting in public interest had brought the
same to High Court's attention, such person should not be discouraged ---Objections taken to
maintainability of petition on the ground that petitioners were not 'aggrieved person' and
therefore, could not approach High Court under Art. 199 of the Constitution and High Court
did not have the power to strike down any law even if it violated the Constitution,
were not tenable ---Petition was maintainable in circumstances.
Ardeshir Cowasjee v. Karachi Building Contro l Authority, 1999 SCMR 2883; Mian Fazal
Din v. Lahore Improvement Trust, Lahore and another PLD 1969 SC 223; Miss Benazir
Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Miss Benazir Bhutto and
another v. Federation of Pakistan and another PL D 1989 SC 66; Mian Muhammad Nawaz
Sharif v. President of Pakistan and others PLD 1993 SC 473; Al -Jehan Trust through Raeesul
Mujahideen Habib -ul-Wahab -ul-Khairi and others v. Federation of Pakistan and others PLD
1996 SC 324; Malik Asad Ali and others v. F ederation of Pakistan through Secretary, Law,
Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161; Mohtarma Benazir
Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Balochistan Bar
Association v. Government of Baloch istan PLD 1991 Quetta 7; PLD 1993 SC 341; Mobashir
Hassan v. Federation of Pakistan PLD 2010 SFC 265; Human Rights Commission of
Pakistan v. Government of Pakistan PLD 2009 SC 507; S.P. Gupta v. Union of India 1981
(Supp.) SCC 87 and Muhammad Alam v. Plann ing Development De4partment,
Constitutional Petition No.351 of 2009 rel.
(d) Code of Criminal Procedure (Balochistan Amendment) Act (XV of 2010) ---
----Preamble ---Code of Criminal Procedure (Balochistan Amendment) Ordinance (III of
2010), Preamble ---Constitution of Pakistan, Arts.8, 10 -A, 175 & 199 ---Constitutional
petition ---Laws inconsistent or in derogation of Fundamental Rights ---Independence of
Judiciary ---Executive Magistrates ---Judicial powers ---Fair trial, right of ---Validity ---
Executive Magistracy setup pursuant to laws under Code of Criminal Procedure (Balochistan
Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment)
Ordinance, 2010, was not under the supervision and control of High Court ---Government and
not the H igh Court had the power to appoint, transfer, discipline, remove and grant powers to
Executive Magistrates ---Such Executive Magistrates were not under the supervision and
control of High Court ---Fair trial was deemed to be vitiated, if judicial fun ctions were given
to Executive and its officers and independence of judiciary could not be secured if the
Executive was made a part of the Judiciary ---Person would be deprived of a fair trial and due
process if he or she was tried before an Executive Magis trate---Constitutional requirements of
fair trial and independence of judiciary, held, were contravened by Code of Criminal
Procedure (Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan
Amendment) Ordinance, 2010.
Gopalan v. State of Madras AIR (37) 1950 SC 27; Abdul Haque v. State PLD 1976 Lah. 246;
Abdul Hafeez v. State PLD 1981 SC 352; New Insurance Limited v. National Bank of
Pakistan PLD 1999 SC 1126; Ikhlaq Ahmed v. Government of Punjab 1991 MLD 739;
Accountant General v . Ahmed Ali U. Qureshi PLD 2008 SC 522 and Nadeem Ahmed,
Advocate v. Federation of Pakistan PLD 2010 SC 1165 rel.
(e) Interpretation of Constitution ---
----Trichotomy of powers ---Scope ---Constitution is based on principle of trichotomy of
powers in wh ich the Executive, Legislature and Judiciary have their own defined functions,
independent from each other ---Executive cannot be given judicial powers as it would
encroach upon the exclusive domain of the Judiciary.
(f) Code of Criminal Procedure (Baloc histan Amendment) Act (XV of 2010) ---
----S. 14(3) & Preamble ---Code of Criminal Procedure (Balochistan Amendment) Ordinance
(III of 2010), Preamble ---Constitution of Pakistan, Arts. 8, 142, 143, 175 [as amended by
Constitution (Eighteenth Amendment) Act (X of 2010)] & 199 ---Constitutional petition ---
Federal and Provincial laws ---Uniformity in laws ---Executive Magistrate ---Performing
judicial functions ---Petitioners assailed promulgation of Code of Criminal Procedure
(Balochistan Amendment) Act, 2010, whe reby Executive Magistrates were given judicial
powers ---Validity ---Executive Magistrates, under Code of Criminal Procedure (Balochistan
Amendment) Act, 2010, did not require to have legal education or training ---Balochistan
Government, under S.14 (3) of Co de of Criminal Procedure (Balochistan Amendment) Act,
2010, was empowered to appoint "any person" as an Executive Magistrate and theoretically
an illiterate person could be appointed as an Executive Magistrate ---Even if the Government
only appointed govern ment servants as Executive Magistrates, they would have no legal
training, nor were they required to acquire any before being granted judicial powers ---Person
acquired a legal degree after studying law for many years and Judicial Magistrates were
appointed provided they pass prescribed tests and interview demonstrating requisite
knowledge of law, procedure and rules of evidence ---Executive Magistrates envisaged under
Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal
Procedur e (Balochistan Amendment) Ordinance, 2010 would be no better than laymen ---
Changes made under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and
Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, showed that the
Province of Balochistan sought to specifically undo the changes made to Criminal Procedure
Code, 1898, by the Federation, which was in complete contravention of Art.143 of the
Constitution ---Constitution wanted uniformity of Criminal laws, Criminal Procedure Code,
1898, and evidence in Pakistan, leaving Provinces to legislate only in respect of such matters
not already covered by Federal law ---Repugnancy between Federal and Provincial laws was
complete and absolute and no portion of the Code of Criminal Procedure (Balo chistan
Amendment) Act, 2010, and Code of Criminal Procedure (Balochistan Amendment)
Ordinance, 2010, could be incised and saved, therefore, it was void in terms of Art.143 of the
Constitution ---High Court declared Code of Criminal Procedure (Balochistan A mendment)
Act, 2010, and Code of Criminal Procedure (Balochistan Amendment) Ordinance, 2010, ultra
vires the Constitution, of no legal effect and void ab initio ---High Court further declared that
any rule, notification and order issued appointing any perso n as Executive Magistrate and
granting such person powers to conduct trials and any other powers pursuant to Code of
Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure
(Balochistan Amendment) Ordinance, 2010, were of no le gal effect ---High Court transferred
all proceedings pending before Executive Magistrates appointed pursuant to Code of
Criminal Procedure (Balochistan Amendment) Act, 2010, and Code of Criminal Procedure
(Balochistan Amendment) Ordinance, 2010, to judicial Magistrates and or Sessions Judges of
concerned districts and set aside the convictions awarded and acquittals made by Executive
Magistrates under Code of Criminal Procedure (Balochistan Amendment) Act, 2010, and
Code of Criminal Procedure (Balochistan Am endment) Ordinance, 2010, being coram non
judice and directed to adjudicate all such cases afresh by Judicial Magistrates / Session
Judges ---Petition was allowed accordingly.
Rasheed A. Razvi v. Province of Sindh PLD 2010 Kar. 63; Muhammad Ali Satakzai v.
Appointing Authority of the Addl. D&S Judges 2011 PLC (C.S.) 78; Muhammad Ali
Satakzai v. Appointing Authority through Registrar Balochistan High Court 2011 SCMR
1030; Muhammad Mansha v. State PLD 1996 SC 229; Amanullah Khan Yousafzai v.
Federation of Pakistan PLD 2011 Kar. 451; Water and Power Development Authority v.
Muhammad Riaz PLD 1995 Lah. 56; Wattan Part v. Federation of Pakistan PLD 2006 SC
697 and PLD 2002 Central Statutes 92 rel.
Kamran Mullahkhail (in person).
Amanullah Kanrani, Advoca te-General for Respondent.
Farhat Nawaz Lodhi and Mehmood Raza for Petitioners (in C.P. No.202 of 2011).
Dr. Khalid Ranjha, Malik Sikandar Khan, Dy. Attorney General and Amanullah Kanrani,
A.G. for Respondents. (in C.P. No.202 of 2011).
Date of heari ng: 26th September, 2011.
JUDGMENT
QAZI FAEZ ISA, C.J. ---These two petitions have been filed assailing the Code of Criminal
Procedure (Balochistan Amendment) Act, 2010 (Act XV of 2010), published in the
Balochistan Gazette on December 10, 2010, and the Code of Criminal Procedure
(Balochistan Amendment) Ordinance, 2010 (Ordinance III of 2010), published in the
Balochistan Gazette on November, 23, 2010 (Respectively "the impugned Act" and "the
impugned Ordinance").
2. Mr. Muhammad Kamran Khan Mulakhai l, a practising lawyer, who is also a Member of
the Balochistan Bar Council and Member of the Judicial Commission of Pakistan for
Balochistan, is the petitioner in Constitutional Petition No.649 of 2011. The petitioner in
Constitutional Petition No.202 of 2011 has described himself as the "President of Local
Council Association of Balochistan" and former Nazim City District Government, Quetta.
3. That the impugned Ordinance was repealed vide section 75 of the impugned Act; however,
subsection (1) of secti on 75 of the Act sought to save the actions done, penalties imposed,
inquiries conducted etcetera under the Ordinance. The impugned Ordinance and the
impugned Act (hereinafter collectively referred to as "the impugned laws") sought to
introduce executive m agistracy in the Province of Balochistan and to entrust it with judicial
powers to conduct trials and impose punishments. Section 4 of the Act bifurcated magistrates
into judicial magistrates and executive magistrates respectively as under:
"(a) Judicial Magistrates:
(i) Magistrates of the First Class;
(ii) Magistrates of the Second class:
(iii) Magistrates of the Third class; and
(iv) Special Judicial Magistrates.
(b) Executive Magistrates:
(i) District Magistrates;
(ii) Additional District Magistrates;
(iii) Sub -Divisional Magistrates;
(iv) Special Executive Magistrates;
(v) Magistrates of the First Class;
(vi) Magistrates of the Second Class; and
(vii) Magistrates of the Third Class"
Section 12 of the impugned Act added a provi so to section 28 of the Criminal Procedure
Code, 1898 ("Code"). Section 28 of the Code and the newly added proviso are reproduced
hereunder:
"28. Offences under Penal Code
Subject to the other provisions of this Code any offence under the Pakistan Pena l Code may
be tried:
(a) by the High Court; or
(b) by the Courts of Sessions; or
(c) by any other Court by which such offence is shown in the eighth column of the second
schedule to be triable."
"Provided that the offences falling under Chapters VI II, X, XIII and XIV of Pakistan Penal
Code 1860 (Act XLV of 1860), except offences specified in section 153 -A and section 281 of
the aforesaid Code, shall be tried by the Executive Magistrate and the expression
"Magistrate" used in the said eighth column s hall mean Executive Magistrate of the
respective class."
Section 13 of the impugned Act also added a proviso to section 29 of the Code. Section 29 of
the Code and the proviso added thereto are reproduced hereunder:
"29. Offences under other laws.
(1) S ubject to the other provisions of this Code, any offence under any other law shall when
any Court is mentioned in this behalf in such law, be tried by such Court.
(2) When no Court is so mentioned, it may be tried by the High Court or subject as aforesai d
by any Court constituted under this Code by which such offences shown in the eight column
of the second schedule to be triable."
"Provided that the offences punishable with imprisonment for a term not exceeding three
years, with or without any other pu nishment, shall be tried by the Executive Magistrates."
3. The offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code
respectively pertain to offences against the public tranquility (Chapter VIII), offences of the
contempt of th e lawful authorities of public servants (Chapter X), offences relating to weights
and measures (Chapter XIII) and offences affecting public health, safety, convenience,
decency and morals (Chapter XIV). The two offences that have been excluded for trial by the
Executive Magistrates are the offences promoting enmity between different groups,
etcetera (section 153 -A Pakistan Penal Code) and the offence of exhibition of false light,
mark or buoy (section 128 Pakistan Penal Code), for which offences impri sonment may
respectively extend to five years and seven years. Save these two offences all offences falling
under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code would after the enactment
of the impugned laws be tried by the Executive Magistrates . In addition offences mentioned
in other laws that are punishable with imprisonment for a term not exceeding three years
would also be tried by the Executive Magistrates.
4. The impugned laws also gave some of the powers vesting in police officers (unde r sections
128, 129, 130 and 131 of the Code) to Executive Magistrates. Section 190 of the Code,
whereby the cognizance of offences is taken, was also substituted. The section 190 of the
Code both before and after its amendment are reproduced hereunder:
Section 190 of the Code before its amendment:
"190. Cognizance of offences by Magistrate
(1) All Magistrates of the first Class, or any other Magistrate specially empowered by the
Provincial Government on the recommendation of the High Court may take c ognizance of
any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police -officer;
(c) upon information received from any person other than a police -officer, or upon his own
knowledge or suspicion.
that such offence has been committed which he may try by or send to the Court of Session for
trial.
(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by
a Court of Session shall, without recording any evidence, send the case to Court of Session
for trial."
Section 190 of the Code after its amendment:
"190. Cognizance of offences by Magistrate.
(1) Except as hereinafter provided any District Magistrate, or a Sub -Divisional Mag istrate, or
any other Magistrate specially empowered in this behalf may take cognizance of any offence:
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than police officer, or upon his own
knowledge or suspicion, that such offence has been committed.
(2) The Provincial Government may empower any Magistrate to take cognizance under
subsection (1) clause (a) or clause (b) of offences for which he may try or send to the Court
of Session for trial.
(3) A Magistrate taking cognizance under subsection (1) of the offence triable exclusively by
a Court of Session shall, without recording any evidence, send the ca se to the Court of
Session for trial."
6. Section 53 of the impugned Act also sought to give power to transfer cases to the
Executive Magistrates by amending section 192 of the Code. Previously only a Sessions
Judge was empowered to transfer a case from one Judicial Magistrate to another. The
impugned Act also sought to add Parts -IV and V, after Part -III to Schedule -III of the Code.
Part IV set out the "Ordinary Power of District Magistrate" and Part -V the "Ordinaty Powers
of District Magistrate". Part -IV and Part V are respectively reproduced hereunder:
PART -IV
Ordinary Powers of a Sub Divisional Magistrate Appointed Under Section 13
(1) The ordinary powers of a Magistrate of the First Class.
(2) Power to direct warrants to landholders, section 7 8.
(3) Power to issue search warrant otherwise than in course of an inquiry, section 98.
(4) Power to issue search warrant for discovery of persons wrongfully confined, section 100.
(5) Power to require security to keep peace, section 107.
(6) Powe r to require security for good behavior, section 109.
(7) Power to require security for good behavior, section 110.
(8) Power to discharge sureties, section 126 -A.
(9) Power to make orders as to Local nuisances, section 133.
(10) Power to make orde rs prohibiting repetitions of nuisances, section 143.
(11) Power to make orders under, section 144.
(12) Power to make orders etc. in possession cases, sections 145, 146 and 147.
(13) Power to depute subordinate Magistrate to make local inquiries, se ction 148.
(14) Power to order police investigation into cognizable case, section 156.
(15) Power to receive report of police officer and pass order, section 173.
(16) Power to hold inquests, section 174.
(17) Power to issue process for person with in local jurisdiction who has committed an
offence outside the local jurisdiction, section 186.
(18) Power to entertain complaints, section 190.
(19) Power to receive police reports, section 190.
(20) Power to entertain case without complaints, secti on 190.
(21) Power to transfer case to a subordinate Magistrate, section 192.
(22) Power to pass sentence on proceedings recorded by a Subordinate Magistrate, section
349.
(23) Power to forward record of inferior court to District Magistrate, section 435(2).
(24) Power to sell property alleged or suspected to have been stolen etc., section 524.
PART -V
Ordinary Powers of District Magistrate
(1) The ordinary powers of a Sub -Divisional Magistrate.
(2) Power to require delivery of letters, teleg rams, etc., section 95.
(3) Power to issue search warrants for documents in custody of postal or telegraph authority,
section 96.
(4) Power to require security for good behavior in case of sedition, section 108.
(5) Power to release person imprisoned for failing to give security, section 124.
(6) Power to cancel bond for keeping the peace, section 125.
(7) Power to order preliminary investigation by Police officer not below the rank of Inspector
in certain cases, section 196 -B.
(8) Power to tend er pardon to accomplice at any stage of a case, section 337.
(9) Power to hear appeals from order requiring security for keeping the peace or good
behavior, section 406.
(10) Power to hear appeals from order of Magistrate refusing to accept or rejectin g sureties,
section 406 -A.
(11) Power to hear or refer appeals from convictions by Magistrate of the second and third
classes, section 407.
(12) Power to call for records, section 435.
(13) Power to order inquiry into complaint dismissed, or case of accused discharges, section
436.
(14) Power to appoint person to be public prosecutor in particular cases, section 492(2).
(15) Power to issue commission for examination of witness, sections 503, 506.
(16) Procedure on forfeiture of bond, section 514 .
(17) Power to hear appeals from or revise orders passed under, section 515.
(18) Power to withdraw cases other than appeals, and to try or refer them for trial, section
528-A.
(19) Power to compel restoration of abducted female, section 552."
73. In the aforesaid Code, in schedule IV,
(a) In Part -1, after entry No. 1, the following new entries shall be inserted namely;
(2) Power to issue process for persons within local jurisdiction who has committed an offence
outside the local jurisdiction, section 186.
(3) Power to take cognizance of offences upon complaint, section 190.
(4) Power to take cognizance of offences upon police report, section 190.
(5) Power to take cognizance of offences without complaint, section 190.
(6) Power to trans fer cases, section 192.'
7. In view of the fact that interpretation of Law and Constitution was involved, notices were
issued to the Attorney General for Pakistan and the Advocate General of Balochistan. We
also appointed Mr. M. Zafar and Mr. Muhammad Ri az Ahmed, Advocates as amicus to assist
the court. Time, however, was repeatedly sought both by the Province and Federation.
Consequently on August 8, 2011 the following inter alia order was passed:
"We had admitted this petition for regular hearing on 4 th April 2011 and since then a number
of dates have passed. It was specifically stated in order dated 4th April 2011 that in view of
the urgency of the matter it should be fixed at an early date.
In view of the fact that the petition primarily involves i nterpretation of the Constitution and
whether the Criminal Procedure (Balochistan) Act, XV of 2010 was in accordance with the
provisions thereof we fail to understand what could be filed by way of comments counter
affidavit unless of course the respondents want to disclose the reasons which necessitated in
enacting the said legislation, the disclosure of the reasons and objectives of the said
legislation, the discussion in parliament and summary moved to the cabinet for
recommending the said legislation.
In the interest of justice time is granted as the aforementioned matters may help in the
determination of this petition."
8. The Province of Balochistan through the learned Advocate General filed "Statement of
Objects and Reasons" that purportedly necess itated the enactment of the impugned Act,
which is reproduced hereunder: --
"STATEMENT OF OBJECTS AND REASONS
Consequent upon abolition of Local Government Ordinance, 2001 and revival of office of
Deputy Commissioner in the Province, it has become exped ient to restore/revive Magistracy
system as it stood prior to introduction of Local Government System in 2001. The
restoration/revival of Magistracy System in the Province requires amendments to be carried
out in the Code of Criminal Procedure 1898 (V of 1 898). Accordingly, a draft bill containing
amendments in the Code of Criminal Procedure 1898 (V of 1898) has been prepared and
submitted for approval by the Provincial Assembly The Provincial Cabinet in its meeting
held on 2nd September 2010, has already a pproved its placement before the Provincial
Assembly."
However, the minutes of the referred to Provincial Cabinet meeting were not produced.
Learned Advocate General further stated that no discussion took place in the Provincial
Assembly when the Bill, w hich resulted in the impugned Act, was presented.
9. Mr. Amanullah Kanrani learned Advocate General and Dr. Khalid Ranjha, learned counsel
for the Government of Balochistan in C.P. No.202 of 2011, raised objections to the
maintainability of the petitions on two grounds, firstly, that the petitioners do not come within
the definition of 'aggrieved person' under Article 199 of the Constitution and, secondly, that
the petitioner in C.P. No.202 of 2011 has already approached the Hon'ble Supreme Court
seeking the same relief; therefore it would not be appropriate for this court to proceed with
the hearing of these petitions until the matter has been decided by the apex court. We
accordingly proceed to first decide the question of maintainability of the petition s.
10. In support of the first objection it was contended that admittedly the petitioners had not
personally suffered as a consequence of the impugned laws nor do the petitioners have any
case pending against them as a consequence whereof they may be per sonally affected by its
determination by an Executive Magistrate, instead of a Judicial Magistrate. Through these
petitions the impugned laws have been assailed in the public interest. In Pakistan we have a
written constitution and it is incumbent on every one to comply therewith (Article 5). Sub -
Article (1) of Article 8 of the Constitution stipulates that, "any law... in so far as it is
inconsistent with the rights conferred by this Chapter ['Chapter 1 - Fundamental Rights'],
shall, to the extent of such inconsistency, be void." And sub -article (2) of Article 8 provides,
that, "The State shall not make any law which takes away or abridges the rights so conferred
and any law made in contravention of this clause shall, to the extent of such contravention, be
void." Sub -Article (5) of Article 8 further lays down that, "The rights conferred by this
Chapter shall not be suspended except as expressly provided by the Constitution." Article
199(2) of the Constitution also removes any barrier or obstruction that may be placed in the
way of a person approaching the High Court for enforcement of Fundamental Rights as the
said provision stipulates, that, "Subject to the Constitution, the right to move a High Court for
enforcement of any of the Fundamental Rights conferr ed by Chapter 1 of Part II shall not be
abridged." Accordingly, if a person files a petition alleging that a law contravenes any
Fundamental Right conferred by the Constitution this court is obliged to examine the same in
its constitutional jurisdiction. T o contend otherwise would render Article 8 bereft of meaning
and leave citizens denuded of their Fundamental Rights guaranteed by the Constitution.
11. The next question to be considered is, whether a person who is not personally aggrieved
may also assai l a law enacted in contravention of the Fundamental Rights. In repelling the
objection as to maintainability Mr. Farhat Nawaz Lodhi, Advocate placed reliance upon the
case of Ardeshir Cowasjee v. Karachi Building Control Authority, 1999 SCMR 2883, and
paragraph 23 of the said judgment (at page 2905), reproduced hereunder:
"13. We may also refer to the following judgments of this Court in which the concept of
locus standi has been dilated upon in relation to a Constitution petition and, inter alia, it has
been held that for maintaining a proceeding in writ jurisdiction, it is not necessary that a writ
petitioner should have a right in the strict juristic sense, but it is enough if he discloses that he
had a personal interest in the performance of the legal duty, which if not performed or
performed in a manner not permitted by law, would result in the loss of some personal benefit
or advantage or curtailment of a privilege in liberty or franchise:
(i) Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223).
(ii) Miss Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416)
(iii) Miss Benazir Bhutto and another v. Federation of Pakistan and another (PLD 1989 SC
66)
(iv) Mian Muhammad Nawaz Sharif v. President of P akistan and others (PLD 1993 SC 473).
(v) Al -Jehan Trust through Raeesul Mujahideen Habib -ul-Wahab -ul-Khairi and others v.
Federation of Pakistan and others (PLD 1996 SC 324).
(vi) Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and
Parliament Affairs, Islamabad and others (PLD 1998 SC 161).
(vii) Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998
SC 388)
... The appellants are entitled to a declaration in terms of sub -paragraph (ii) of paragraph (a)
of clause (1) of Article 199 of the Constitution that the approval of the building plan of
respondent No.5 in respect of the Plot is without lawful authority and of no legal effect in
view of the violation of Articles 40 and 52 -A of the O rder read with para.3 of Schedule 'D' to
the Regulations. As a consequential relief the appellants are also entitled to seek removal of
the unauthorized structure from the Plot. Even otherwise, the appellants have sufficient
interest to ensure that the Plo t should not be used for any other purpose than for which it was
carved out pursuant of K.D.A. Scheme No.5."
12. Criminal law and criminal procedural law may have an effect on the life of citizens or
may do so in the future. A person may wait to be charg ed with a crime and then file a
constitutional petition challenging the constitutionality of such law or he/she may do so
immediately upon its promulgation. It is preferable that if any law, which may impact upon
any inalienable human right, is assailed so oner rather than later if it be deemed to have been
enacted in contravention of the Constitution. In the case of Pakistan human rights are
categorized as `Fundamental Rights' in the Constitution. The certainty of the applicability of
laws also requires tha t laws, the constitutionality of which is suspect, are assailed at the
earliest. Ensuring compliance of laws with human rights/Fundamental Rights and certitude of
laws forms the bedrock of civilized society; in such societies everyone knows their
obligatio ns and how they will be dealt with if charged of having committed an offence. A
person may also not have sufficient time to assail such laws when he or she is facing trial,
and the trial may be over before a challenge can be launched against it. Moreover, persons
who do not have the requisite knowledge and or wherewithal to assail such laws may still
come within its ambit. Therefore, public spirited persons, including lawyers, acting bona fide
in the public interest, may assail such laws. The Constitution, including the Fundamental
Rights enshrined therein, must not be permitted to be trampled upon, and if a public -spirited
person acting in the public interest brings the same to the High Court's attention he should not
be discouraged. This court, in the case of Balochistan Bar Association v. Government of
Balochistan, PLD 1991 Quetta 7, held that the High Court was empowered to examine the
vires of the Civil Law (Special Procedure) Ordinance I of 1968 and the Criminal Law
(Special Procedure) Ordinance II of 1 968 on the touchstone of the Constitution. The petition
was filed by the late Mr. Muhammad Nawaz Marri Advocate (as he then was), in his capacity
as President of the Balochistan Bar Association. The appeal against the said judgment of the
Balochistan High Court was dismissed by the Supreme Court (PLD 1993 Supreme Court
341). A more recent example of the courts exercising jurisdiction and striking down a law
when approached by public -spirited citizens is the case of Mobashir Hassan v. Federation of
Pakistan, PLD 2010 Supreme Court 265, wherein the Hon'ble Supreme Court struck down
the National Reconciliation Ordinance, 2007 ("NRO"). The petitioner, Mr. Mobashir Hassan
was neither a beneficiary of the NRO nor had been denied its benefit and therefore not an
'aggrieved person' in the narrow sense; but such purported lack of locus standi did not impede
his right to approach the court. Dr.Khalid Ranjha contended that the power of the Supreme
Court emanates from Article 184(3) and it can strike down a law, which po wer does not vest
in the High Court. We are afraid we can not agree with him as there is nothing in the
Constitution which makes this distinction; on the contrary the Hon'ble Supreme Court in the
case of Human Rights Commission of Pakistan v. Government of Pakistan, PLD 2009
Supreme Court 507, held that,
"It needs to be kept in view that apart from the jurisdiction vested in the High Courts by
virtue of clauses (a) and (b) of Article 199(1) a special jurisdiction is conferred by clause (c)
which a High C ourt shares with the original jurisdiction of this Court under Article 184(3) ...
."
"The power to enforce fundamental rights has been conferred upon the superior courts
through Articles 199(1)(c) and 184(3). It may be seen that under Article 4 everybody has to
be treated in accordance with the law and under Article 8, a law inconsistent with
fundamental rights is to be treated as void."
13. Neither the learned Advocate General nor Dr. Ranjha have attributed any ulterior
personal agenda or motive to the petitioners, nor have we discerned any, thus we can only
conclude that they have approached this court to assist their fellow citizens in leading their
lives in the glow of the Constitution and to enjoy the rights provided therein. The courts have
opened its doors to such persons and categorized petitions seeking enforcement of
Fundamental Rights as public interest litigation and not insisted on the applicability of the
strict rules of locus standi. In the case of S. P. Gupta v. Union of India, 1981 (Supp) SCC 87,
advocates, who successfully assailed the manner in which judges were appointed to the
higher judiciary under Article 226 of the Indian Constitution (similar to Article 199 of the
Constitution of Pakistan), were referred to as public -minded or publ ic-spirited individuals. In
the unreported case of Muhammad Alam v. Planning Development Department,
Constitutional Petition No.351 of 2009, this court had held, that,
"Therefore, if a person, who has no personal interest and in the larger public interes t comes
forward and questions such spending the doors of the court should not be shut, but rather kept
open for him. Such a public spirited person, who has taken on himself the burden of
expressing public outrage or grievance can be categorized as an 'aggrieved person', in
terms of Article 199 of the Constitution. He takes time out from his private life and puts in
considerable effort guided by public zeal to take the matter to court. He is part of the public
whose interest he represents, thus he to o can be categorized as 'aggrieved' even in the narrow
sense of the word."
14. The objections taken to the maintainability of the petitions on the ground that petitioners
are not aggrieved persons and therefore cannot approach this court under Article 19 9 of the
Constitution and that the High Court does not have the power to strike down any law even if
it violates the Constitution are not tenable for the reasons stated above. We now attend to the
remaining objection that the petitioner (in C.P. No.202 of 2011) has filed a petition under
Article 184(3) of the Constitution in 2009 before the Supreme Court and has sought the same
relief therein therefore this court should hear these petitions after the case before the apex
court has been decided. The paper bo ok of the said petition was provided to us (but not its
number) and we have gone through the same. The only portion in the said petition which may
be deemed to be relevant is the allegation that, "a conspiracy to restore Executive Magistracy
had been hatch ed up." In the said petition filed before the Supreme Court the petitioner
appeared to have been aggrieved by the abolition of the previous (Nazim based) system of
local government and as consequence had also sought for the Nazims to retain their non
judic ial powers of the executive magistrates and prayed that executive magistrates may not
"be given judicial powers and functions." The impugned laws had not been assailed in the
said petition, nor could the same have been challenged, since neither the impugne d Ordinance
nor the impugned Act had been enacted at that time; the petition was filed before the Hon'ble
Supreme Court in the year 2009. Accordingly, since the relief claimed in these petitions is
wholly different from the relief claimed in the petition f iled in the Supreme Court, the
contention of the respondents' counsel that the petitioner (in C. P. No.202 of 2011) has
already approached the Hon'ble Supreme Court seeking the same relief is misplaced and the
objection to the maintainability of the petiti on on this ground rejected.
15. Mr. Farhat Lodhi and Mr. Kamran Mulakhail have assailed the impugned laws on the
following grounds: --
(1) The introduction of executive magistracy contravenes Article 175(3) of the Constitution,
which provides, that, "Th e Judiciary shall be separated progressively from the Executive
within fourteen years from the commencing day," i.e. from August 14, 1973 (as provided in
sub-Article (2) of Article 265), which period of fourteen years came to an end on August 18,
1987, and the impugned laws are a regressive step and in contravention of Article 175(3) of
the Constitution;
(2) That the Constitution is based on the principle of trichotomy of powers in which the
Executive, Legislature and Judiciary have their own defined func tions independent from each
other and the Executive cannot be given judicial powers as it would encroach upon the
exclusive domain of the Judiciary;
(3) The Balochistan Provincial Legislature was not competent to legislate in respect of
criminal law and criminal procedure as the same had already been legislated upon by
Parliament and the impugned laws, being contrary to the laws on the said subjects as enacted
by Parliament, therefore, the same were void as stipulated by Article 143 of the Constitution;
(4) The Constitution (Eighteenth Amendment) Act, 2010 (which came into effect on April
19, 2010) omitted the Concurrent Legislative List (as hitherto before provided by sub -Article
(4) of Article 70), which List contained matters in respect of criminal la w, criminal procedure
and evidence, but these subjects were retained by Parliament as per Article 142(b);
(5) Article 10A of the Constitution inter alia stipulates that, "in any criminal charge against
him a person shall be entitled to a fair trial and d ue process" and that a person would be
deprived of fair trial and due process before an executive magistrate, having no legal training,
no security of tenure and who may not be immune from the pressure of the Executive;
(6) The Objectives Resolution, whi ch is now a substantive part of the Constitution provides
for the independence of the judiciary but this provision would stand negated and rendered
null and void if a person is tried by an executive officer over whom the Judiciary has no
control;
(7) Cha pter-VII of the Constitution entitled 'The Judicature' does not envisage executive
courts and the same have no place in the Constitution; the only exception being the
recognition of the existing executive magistrates at the time that the Constitution was a dopted
(in 1973), but the same only permitted to continue for a limited period as sub -Article (3) of
Article 175 mandated that the Judiciary must be separated from the Executive by the date
stipulated therein, which has long passed;
(8) Article 202 of th e Constitution grants to the High Court the power to make "rules
regulating the practice and procedure of the Court or any court subordinate to it" however the
High Court has no power to make rules regulating the practice and procedure of the
Executive Mag istrates that have been introduced by the impugned laws;
(9) Article 203 of the Constitution mandates that the High Court "shall supervise and control
all courts subordinate to it" but the Executive Magistrates are within the supervision and
control of t he Executive and not within the supervision and control of the High Court, and
(10) The impugned laws do not require that Executive Magistrates have any legal education
or training and section 14(3) of the impugned Act empowers the Government to appoint "any
person" as an Executive Magistrate, and theoretically even a parliamentarian may be
appointed as an executive magistrate.
They have also placed reliance on a number of cases which have been referred in this
judgment.
16. A plethora of case -law has d eveloped over the years discussing the principles of
separation of Executive from the Judiciary, Fundamental Rights on the subject of trials,
Articles 142, 143, 175, 202 and 203 of the Constitution, and the other questions and issues
raised in these petiti ons. It would be useful to examine the same as many of the questions
raised herein have already been determined and settled. In the celebrated case of Sharaf
Faridi v. Federation of Islamic Republic of Pakistan, PLD 1989 Karachi 404, decided by a
Full Benc h of the Sindh High Court by a majority of six to one, matters of separation of the
Executive from the Judiciary and the subject of independence of the Judiciary were dilated
upon. Mr. Justice Ajmal Mian, the then Hon'ble Chief Justice of the Sindh High Co urt held,
that:
"I may observe that 1973 Constitution was framed with consensus of all the political parties
and the members of the national Assembly. It contemplated trichotomy of power between the
three organs of the State, namely, the legislature, the executive and the judiciary. Each organ
of the State was to function / operate within the bounds specified in the Constitution. The
judiciary was assigned very important role to play, namely, to act as the Watch Dog and to
ensure that none of the organs o r the Government functionaries acts in violation of any of the
provisions of the Constitution or of any other law. Since the above role entrusted to the
judiciary under the Constitution was very delicate, it was envisaged that the judiciary would
be indep endent and separate from the other organs of the State."
"I am inclined to hold that the supervision and control over the subordinate judiciary vested
in the High Court under Article 203 of the Constitution keeping in view Article 175, is
exclusive in nature, comprehensive in extent and effective in operation. It comprehends the
administrative power as to the working of the subordinate Courts and disciplinary jurisdiction
over the subordinate judicial officers. In this view of the matter, any provision in an act or
any rule or a notification empowering any executive functionary to have administrative
supervision and control over the subordinate judiciary will be violative of above Article 203
of the Constitution. Besides, it will militate against the con cept of separation and
independence of judiciary as envisaged by Article 175 of the Constitution and the Objectives
Resolution."
"Since the various Federal and Provincial Governments after the enforcement of the
Constitution in 1973 have failed to do wh at they were/are required to do under the
Constitution, direction/directions under Article 199 can be issued to them to do the same, and
similarly a prohibitory direction can also be issued not to do which is not permitted by the
Constitution. I may observ e that in order to bring the existing laws in conformity with
Articles 175 and 203 of the Constitution, not only some administrative actions are required to
be taken but also some legislative measures are needed."
Mr. Justice Saleem Akhtar agreed with M r. Justice Ajmal and also added his separate and
powerful note setting out the concept of the trichotomy of powers prevailing in the
Constitution, the special role of the Judiciary, and stressed that Parliament could not encroach
upon the judicial domain. He interpreted Article 9 of the Constitution to include the provision
of an impartial court or tribunal without which a fair trial is mitigated and stated that a
mandatory duty had been cast by the Constitution upon the Executive and the Legislature to
separate the Judiciary from the Executive, as under: --
"In a set -up where the Constitution is based on trichotomy of power, Judiciary enjoys a
unique and supreme position within the framework of the Constitution as it creates balance
amongst various organs of the State and also checks the excessive and arbitrary exercise of
power by the Executive and the Legislature. Judiciary has been termed as a watch dog and
sentinel of the rights of the people and the custodian of the Constitution. It has been described
as "the safety valve" or "the balance wheel" of the Constitution. The jurisdiction and the
perimeters for exercise of power by all the three organs have been mentioned in definite
terms in the Constitution. No organ is permitted to encroach upon the author ity of the other
and the Judiciary by its power to interpret the Constitution keeps the Legislature and
Executive within the spheres and bounds of the Constitution. The Constitution is a living
document which reflects the aims and aspirations, genius and g enesis, temper and thinking of
the people. Here I would refer to a classical observation of my Lord the Chief Justice
Muhammad Haleem in Benazir Bhutto's case PLD 1988 SC 416 that "the Constitution is not
merely an imprisonment of the past, but is also ali ve to the unfolding of the future". It is
"Law of the Laws".
"The sanctity of the State which includes the Legislature not to make any law by which any
Fundamental Right may be curtailed or taken away and if any law is made to this effect then
to the ex tent of such contravention it shall be void. Therefore, under Article 8(2) a limitation
has been placed on the Legislature not to curtail the Fundamental Rights or abridge them by
any law. The restriction has been placed on the Executive and the Legislatur e as by
legislation and by executive act, the Fundamental Rights are infringed, violated or curtailed"
"The Parliament in our Constitution does not enjoy the supreme status like the British
Parliament which is not governed by any written Constitution. I n our Constitution the
legislative authority of the Parliament is governed and limited by the provisions of the
Constitution. The Indian Constitution is similar to our Constitution. Basu while referring to
"In re: Delhi Laws Act, 1912." (1951) SCR 747 in h is book "Commentary on the Constitution
of India" remarked as follows:
"A written Constitution, thus, provides the organic or fundamental law, with reference to
which the validity of the laws enacted by the Legislature are to be tested. A law enacted by
the Legislature cannot transgress or violate the provisions of the fundamental law. Thus, the
Parliament under the Indian Constitution cannot be said to be a sovereign Legislature in the
Dicean sense."
For the purpose of the present case in my humble vie w Article 9 will be attracted which reads
as follows:
"No person shall be deprived of life or liberty save in accordance with law."
"It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have
an impartial Court and tribunal. Unless an impartial and independent Court is established the
right to have a fair trial according to law cannot be achieved. Therefore justice can only be
done if there is an independent Judiciary which should be separate from Executive and not at
its mercy or dependent on it."
The denial and failure to establish independent Courts and tribunals by separating them from
Executive negates Article 9."
A mandatory duty has been cast upon the Executive and Legislature to separate the judiciary
from Executive, but they have remained completely silent, dormant and unconcerned. Such
omission to exercise jurisdiction not only violates Article 175 but infringes Fundamental
Right as well. In such circumstances necessary orders can be passed and direction in
mandatory form can be issued to ensure enforcement of the provisions of the Constitution and
to prevent the breach of Fundamental Right."
The judgment in Sharaf Faridi's case (supra) was assailed before the Hon'ble Supreme Court
(Government of Sindh v. Sharaf Faridi, PLD 1994 SC 105) but none of the findings of the
Sindh High Court were set aside, and the appeal was dismissed; however, certain
clarifications, elaborations, additions and modifications were made.
17. n the case of Governmen t of Balochistan v. Azizullah Memon (supra) the Hon'ble
Supreme Court held, that: --
"When regular Courts have been established in the area to adjudicate civil disputes, to
provide for trial of criminal offences by tribunal (Jirga) under a different proc edure, leaving
the destiny entirely in the hands of the executive officers does not serve the object and
purpose of the Ordinance. It is complete negation of the fundamental rights which guarantee
equal protection of law, equality before law and right of a ccess to justice unhindered and
unfettered as provided by the Constitution and the Injunctions of Islam."
"Our Constitution is based on the principle of trichotomy of power in which executive,
legislature and judiciary have their own functions independe nt from each other. None of these
three organs are dependent upon the other nor one can claim superiority over the other. In this
context and background to impose executive officers to carry out the judicial work by
ignoring the Courts established in that area by itself creates discrimination and negates the
very concept of justice and violates fundamental rights."
"These provisions thus create a bar to the right of citizens to approach the established Courts
of law and to be governed by the general crim inal law applicable in the entire country. The
exclusion is not based on any rational classification or intelligible differentia."
(12) nother aspect of the case is that by these provisions the rights of access to Courts and
justice has been denied. Thi s by itself is an infringement of fundamental rights which provide
that every citizen shall be entitled to equal protection of law and will not be deprived of life
or liberty save in accordance with law. An examination of Articles 9 and 25 read collectivel y
does not permit the Legislature to frame such law which may bar right of access to the Courts
of law and justice."
"The right of access to justice is internationally well -recognised human right and is now
being implemented and executed by granting rel ief under the Constitutional provisions.
Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations
Convention on Criminal Political Rights recognize the right of fair trial by an independent
and impartial Tribunal established by law."
"It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have
an impartial Court and tribunal. Unless an impartial and independent Court is established the
right to have a fair trial according to law cannot be achieved. Therefore justice can only be
done if there is an independent judiciary which should be separate from executive and not at
its mercy or dependent on it."
"In fact the administration of justice cannot be made subject to or controlled by the executive
authorities. The Constitution provides for separation of judiciary from the executive. It aims
at an independent judiciary which is an important organ of the State within the Constitutional
sphere. The Constitution provides for progressive separa tion of the judiciary and had fixed a
time limit for such separation. It expired in the year 1987 and from then onwards, irrespective
of the fact whether steps have been taken or not, judiciary stands separated and does not and
should not seek aid of execu tive authorities for its separation. Separation of judiciary is the
corner -stone of independence of judiciary and unless judiciary is independent, the
fundamental right of access to justice cannot be guaranteed. One of the modes for blocking
the road of fr ee access to justice is to appoint or hand over the adjudication of rights and trial
of offence in the hands of the executive officers. This is merely a semblance of establishing
Courts which are authorized to decide cases and adjudicate the rights, but in fact such Courts
which are manned and run by executive authorities without being under the control and
supervision of the judiciary can hardly meet the demands of Constitution. Considering from
this point of view we find that the impugned Ordinance II of 1968 from the cognizance of the
case till the revision is disposed of the entire machinery is in the hands of the executive from
Naib -Tehsildar to the official of the Government in the Ministry. Such a procedure can hardly
be conducive to the administratio n of justice and development of the area nor will it achieve
the desired result of bringing law and order, peace and tranquility or economic prosperity and
well-being. The Constitution envisages independent judiciary separate from the executive.
Thus any T ribunal created under the control and superintendence of the executive for
adjudication of civil or criminal cases will be in complete conflict with Articles 175, 9 and
25."
The mandate and command of Article 175 must be obeyed and implemented; any laxi ty in
this regard will amount to violation of Constitutional provisions and perhaps the judicial
orders passed by the functionaries under the control and superintendence of the executive
may be challenged, which will create embarrassing situation for the G overnment and the
administration of justice shall be seriously jeopardized. In view of the fact that more than
reasonable time has passed without any action being taken by the appellant to comply with
Article 175, the request of the learned Advocate -Gener al to grant sufficient time for
introducing reforms cannot be acceded to."
18. n Ms. Benazir Bhutto's case (PLD 1989 SC 416) the Supreme Court had observed as
follows: --
"The right of "access to justice to all" is a well -recognized inviolable right en shrined in
Article 9 of the Constitution. The right of access to justice includes the right to be treated
according to law, the right to have a fair and proper trial and a right to have an impartial
Court or Tribunal. This conclusion finds support from the observation of Willoughby in
Constitution of Unites States, Second Edition, Vol. II at page 1709 where the term "due
process of law" has been summarized as follows:
(1) He shall have due notice of proceedings which affect his rights.
(2) He shall be g iven reasonable opportunity to defend.
(3) That the Tribunal or Court before which his rights are adjudicated is so constituted as to
give reasonable assurance of his honesty and impartiality, and
(4) That it is a Court of competent jurisdiction."
19.In Mehram Ali v. Federation of Pakistan PLD 1998 SC 1145, a case which has been relied
upon by both sides, the Hon'ble Supreme Court after considering the relevant Constitutional
provisions and precedents derived the following principles: --
"(i) That Ar ticles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e.
the Supreme Court, a High Court for each Province and such other courts as may be
established by law.
(ii) That the words "such other Courts as may be established by law" employed in clause (1)
of Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article
203 thereof.
(iii) That our Constitution recognizes only such specific Tribunals to share judicial powers
with the above Courts, whi ch have been specifically provided by the Constitution itself
Federal Shariat Court (Chapter 3 -A of the Constitution), Tribunals under Article 212,
Election Tribunals (Article 225). It must follow as a corollary that any court or tribunal which
is not founded on any of the Articles of the Constitution cannot lawfully share judicial power
with the courts referred to in Articles 175 and 203 of the Constitution.
(iv) That in view of Article 203 of the Constitution read with Article 175 thereo f the
supervision and control over the subordinate judiciary vests in High Courts, which is
exclusive in nature, comprehensive in extent and effective in operation.
(v) That the hallmark of our Constitution is that it envisages separation of the Judiciar y from
the Executive (which is founded on the Islamic Judicial System) in order to ensure
independence of Judiciary and, therefore, any Court of Tribunal which is not subject to
judicial review and administrative control of the High Court and/or the Suprem e Court does
not fit in within the judicial framework of the Constitution.
(vi) That the right of "access to justice to all" is a fundamental right, which right cannot be
exercised in the absence of an independent judiciary providing impartial, fair and just
adjudicatory framework i.e. judicial hierarchy. The Courts/Tribunals which are manned and
run by executive authorities without being under the control and supervision of the High
Court in terms of Article 203 of the Constitution can hardly m eet the mandatory
requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with the process
of appointment of Judges and the security of their tenure and other terms and conditions."
20. Dr. Ranjha referred to the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD
2001 Supreme Court 607; a case in respect where the power of the Federal Government to
promulgate laws for creation of offences and the procedure and punishments thereof and the
establishment of courts was in issue. However, the question for consideration herein is
different as the Executive has been given judicial powers. He also referred to paragraph 178
of the judgment appearing at page 877 and contended that the executive magistr acy,
introduced by the impugned laws, is under the supervision and control of the High Court and
as such it conforms to the constitutional mandate as it is compliant with Article 203. In fact
the cited paragraph also refers to Article 175, which mandates t he separation of the Judiciary
from the Executive, that is, separation of judicial power from executive power. In the words
of the Supreme Court: "However, the functioning of any court or tribunal, beyond the control
and supervision of the High Court conce rned in terms of Article 203 of the Constitution, does
not fulfil the mandatory requirement of the Constitution, in that, under Article 203 of the
Constitution read with Article 175 of the Constitution, the supervision and control of the
subordinate judici ary exclusively vests in the High Courts." We do not agree with learned
counsel's contention that if the supervision and control test is met it suffices; because the
supervision and control test is not the only test but one of the tests. The impugned laws must
also be compliant with and reconcile with other provisions of the Constitution, including
Article 175, and must not be offensive to the Fundamental Rights. Article 175(3) sought to
bring to an end executive magistracy, and to revive or reenact it runs contrary to the
provisions of Article 175. Neither the learned Advocate General nor Dr. Khalid Ranjha
addressed this important aspect of the case. The Executive Magistracy setup pursuant to the
impugned laws is not under the supervision and control of the High Court. It is not the High
Court but the Government that has the power to appoint, transfer, discipline, remove, and
grant powers to the Executive Magistrates. Therefore, it cannot fairly be contended that such
executive magistrates are under the supe rvision and control of the High Court.
21. Dr. Khalid Ranjha, Advocate also referred to the Indian case Gopalan v. State of Madras,
AIR (37) 1950 Supreme Court 27, and paragraph 188 there from. In that case an unsuccessful
challenge was made to the Preve ntive Detention Act, 1950 and it was contended that the
same violated the Constitution of India. The due process doctrine as compared to the doctrine
of police power was discussed in the cited paragraph. However, we do not see the relevance
of the said cas e and the referred to paragraph. Reference was also made to the case of Abdul
Haque v. State, PLD 1976 Lahore 246, to canvass the proposition that all criminal courts are
amenable to the writ jurisdiction and to the case of Abdul Hafeez v. State, PLD 1981
Supseme Court 352, wherein it was held that the High Court has revisional powers in respect
of offences under the Drugs Act, 1976. Learned counsel contended that in respect of
convictions this court can be approached under its constitutional and revisional jurisdiction,
even if the impugned laws do not specifically provide for the same. The question however is
not to simply consider whether this court has constitutional or revisional powers but a far
more basic and fundamental question; whether an executive magistracy with judicial powers
can be established. In addressing and answering this question the cited cases are not relevant.
Moreover, not every person may have the resources to approach this court. And if the mere
possibility of approaching the High C ourt is set as a sufficient standard than it would be
tantamount of denying the poor their rights and be contrary to Sub -Article (1) of Article 25 of
the Constitution, which mandates that, "All citizens are equal before law and are entitled to
equal protec tion of law."
22. The term "access to justice to all" mentioned in Article 4 of the Constitution included the
doctrine of due process of law, a component whereof the Hon'ble Supreme Court has held to
be impartiality. In the case of New Insurance Limited v. National Bank of Pakistan, PLD
1999 Supreme Court 1126, it was held, that: --
"That the Tribunal or Court before which his rights are adjudicated is so constituted as to give
reasonable assurance of his honesty and impartiality." [paragraph 684 of the judgment]
The Hon'ble Supreme Court also cited with approval the judgment in Ikhlaq Ahmed v.
Government of Punjab 1991 MLD 739, wherein it was held at page 72 that, "if the
Government has the power to determine holding of a trial at a place other than th e court
house the same would undermine the independence of the Judiciary." On this score too the
impugned laws fall short. Admittedly the Government has not setup separate places
(buildings) where the Executive Magistrates would adjudicate and they would b e sitting in
their offices and deciding cases. And one may rhetorically question whether the accused and
lawyers representing them would feel comfortable and expect justice dispensed without fear
or favour and without the influence of the Executive and mem bers of the Government in such
an environment. This therefore is yet another violation of the concept access to justice and
due process. In Ikhlaq Ahmed's case reference was also made to resolution 40/32 adopted by
the 7th United Nations Congress on the Pr evention of Crimes on November 29, 1985, which
stated that one of the basic principles of the independence of Judiciary requires that, "The
Judiciary shall have jurThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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