‫ﺑﺳم ﷲ اﻟرﺣﻣن اﻟرﺣﯾم‬

‫ﻧﺣﻣده و ﻧﺻﻠﯽ ﻋﻠﯽ ٰ رﺳوﻟہ اﻟﮑرﯾم‬

ISLAMIC CONCEPT OF HUMAN

RIGHTS

Justice ® Dr. Munir Ahmad Mughal

http://ssrn.com/Author=1697634

INDIVISIBILITY OF LIFE UNDER

ISLAM
The concept of Islam is concept of the
indivisibility of life; life has to be viewed as
a whole and organized as a whole. There is
no priesthood in Islam. Thus Islamic state
would be theistic but not theocratic. Rights,
fundamental or others, could be only rightly

Electronic copy available at: http://ssrn.com/abstract=2074317

grounded in the concepts of reality, truth and
kindness. According to Islam, life does not
end with death but continues towards higher
and higher elevations. It is in this sense that
Islamic principles are broader in outlook and
eternal in existence.
CONCEPT OF LIBERTY
Under Islamic political philosophy, there
can be no liberty without limitations. Liberty
is nothing but an opportunity for the
performance of duties. The Holy Qur’an
says that the prophets are commissioned to
break your chains and remove the halters
from your necks so that you may approach
your Lord freely with the dignity of free
human beings, who in serving God have not
served any arbitrary tyrant but have been
really true to their own selves.
2

Electronic copy available at: http://ssrn.com/abstract=2074317

ISLAMIC PRINCIPLES OF HUMAN
LIFE
Materialistic concept of human life in which
there is no prevision for the development of
human personality has done great harm to
the human society as a whole. God
Almighty has, in His Last Book, guided
mankind with basic and fundamental
principles of human life which when truly
acted upon can bring boon to the entire
mankind. Some of the laws are as under:--

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1. Quality of Mankind

       

       

      

O mankind! We created you from a single

(pair) of a male and a female, and made you
into nations and Tribes, that ye may know
Each other (Not that ye may despise (each
other). Verily the Most honoured of you In
the sight of Allah is (He who is) the Most
righteous of you. and Allah has full
knowledge and is well acquainted (with all
things).
[49 : 13]
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The above verse has made it clear that there
should be no discrimination on account of
race, colour or global differences amongst
men. But it does not mean that all men have
got similar or equal degree of reason etc.
The criteria for honour that has been told is
Taqwa (fear of God, resulting in best of
conduct). To progress equal opportunities
must be given to the people and the results
of such achievements should be left on their
individual hard work, labour and other
outputs. A king or slave shall have equal
opportunities to show their worth in the
kingdom of God.
2. Unity of Mankind

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      

     

        

        

       

        

    

Mankind was one single nation, and Allah

sent Messengers with glad tidings and
warnings; and with them He sent the Book
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In truth, to judge between people In matters
wherein They differed; but the people of the
Book, after the Clear Signs came to them,
did not differ among themselves, except
through selfish contumacy. Allah by His
Grace guided the believers to the truth,
concerning that wherein They differed. for
Allah guided whom He will to a path that is
straight.
[2:213]

This verse also gives stress on the point that

all mankind was one in the beginning, their
forefather being Hadrat Adam1 (peace be

1
The first man sent on earth by God along with his wife Eve.
The reference is available in the following verses of the Holy
Qur’an:

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            

           

            

         

             

            

          

          

         

          

          

8
            

            

            

           

          

         

            

         

         

          

9
          

          

30. Behold, Thy Lord said to the angels: "I will create a
vicegerent on earth." They said: "Wilt Thou place therein one
who will make mischief therein and shed blood?- whilst we do
celebrate Thy praises and glorify Thy holy (name)?" He said: "I
know what ye know not."
31. and He taught Adam the nature of all things; then He placed
them before the angels, and said: "Tell me the nature of these if
ye are right."
32. They said: "Glory to thee, of knowledge we have none, save
what Thou hast taught us: In truth it is Thou who art perfect In
knowledge and wisdom."
33. He said: "O Adam! Tell them their natures." when He had
told them, Allah said: "Did I not Tell you that I know the secrets
of heaven and earth, and I know what ye reveal and what ye
conceal?"
34. and Behold, we said to the angels: "Bow down to Adam"
and They bowed down. not so Iblis: He refused and was
haughty: He was of those who reject Faith.

10
35. we said: "O Adam! dwell Thou and Thy wife In the Garden;
and eat of the bountiful things therein As (where and when) ye
will; but approach not This tree, or ye run into harm and
transgression."
36. then did Satan make them slip from the (garden), and get
them out of the state (of felicity) In which They had been. we
said: "Get ye down, all (ye people), with enmity between
yourselves. on earth will be your dwelling-place and your means
of livelihood - for a time."
37. then learnt Adam from His Lord words of inspiration, and
His Lord turned towards him; for He is Oft-Returning, Most
Merciful.
38. we said: "Get ye down all from here; and if, As is sure, there
comes to you guidance from me, whosoever follows My
guidance, on them shall be no fear, nor shall They grieve.
39. "But those who reject Faith and belie Our Signs, They shall
be companions of the fire; They shall abide therein."
40. O Children of Israel! call to mind the (special) favour which
I bestowed upon you, and fulfil your Covenant with me As I
fulfil My Covenant with you, and fear none but Me.
41. and believe In what I reveal, confirming the Revelation
which is with you, and be not the first to reject Faith therein, nor
sell My Signs for a small price; and fear me, and me alone.

11
upon him). This diversity and dissemination
of mankind on the earth should not be taken
to make them unequal as their root is one
and their end will be one. The kind prophet
(peace be on him) too had said that the
people were all sons of Hadrat Adam and

42. and cover not truth with falsehood, nor conceal the truth
when ye know (what it is).
43. and be steadfast In prayer; practise regular charity; and bow
down your heads with those who bow down (in worship).
44. do ye enjoin right conduct on the people, and forget (to
practise it) yourselves, and yet ye study the Scripture? will ye
not understand?
45. Nay, seek ((Allah)'s) help with patient perseverance and
prayer: it is indeed hard, except to those who bring a lowly
spirit,-
46. who bear In mind the certainty that They are to meet their
Lord, and that They are to return to Him.

12
that Adam was made of clay thus negating
all sorts of pride based on race, colour or
global differences.
3. FREEDOM TO ALL RELIGION

     

      

       

   

Those who believe (in the Qur'an), and those

who follow the Jewish (scriptures), and the
Christians and the Sabians,- any who believe
In Allah and the Last Day, and work
righteousness, shall have their reward with
13
their Lord; on them shall be no fear, nor
shall They grieve.
[2 : 62]

Here it has been told that no doubt Islam is

the way of life that has been accepted by
God Almighty now onwards and no other
way of life is approved by Him which does
not conform to Islamic principles, yhet
freedom to profess any way of life is still
there. “There shall be no compulsion (from
Islam) in the matter of religion, (2 : 256),
nor shall it offend any other religion.
However, it has been ordained that a band of
men, amongst the Muslim community shall
be such who will call to excellence, order
the doing of good things and forbid the
doing of evil things and in case there is any
14
offence against them, the Muslim
community shall have the right to defend
itself. Thus Islamic wars are not the ordinary
wars but they were all in the cause of truth
and defensive. Islamic history is replete with
such instances that Muslims had never
attacked non-Muslims for the sake of wealth
or land. The arrival of Muhammad bin
Qasim in India, or Tariq Bin Ziad in Spain
and other generals of Islam towards various
corners of the world were all to save
mankind from the clutches of barbarous acts
of the non-Muslim rulers. On the other hand
when we read the world history we find that
most of the wards started to increase the
territories of the attackers or to enslave the
mankind without any fault and their
enslavement has lasted for generations.

15
Islam has not abolished slavery with one
stroke of its commandment but has adopted
such persuasive measures that cut the very
roots of slavery. For most of the offences,
releasing of a neck (raqabah/‫ )رﻗﺒۃ‬that is
freeing of a slave has been ordained. Again
the direction is that in future none should be
made a slave except when he tries to become
an active enemy in war against Islam.
History tells us that the treatment prescribed
by Islam towards slaves was very nice. The
very famous incident of a slave boy who had
remained with the Prophet for ten years
when his parents came to take him back and
the Prophet (peace be upon him) gave the
option to the boy, the boy replied that “I am
better to remain slave of the Prophet of
Islam than to be free.” These are not

16
sentimental stories but hard facts of history
and preserved for the last fourteen hundred
years. Again, the sending of ’Usamah as the
Commander in Chief of Muslim army by the
first Caliph of Islam is another clear
example of such treatment. It is also known
to the historian that when Hadrat `Umar
Faruq (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬was entering a
conquered city and it was the turn of his
slave to ride on the camel, Hadrat `Umar
Faruq (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬got down and
caught hold the string of the camel while the
slave was riding. The example of Hadrat
`Uthman Ghani, (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬, the
generous, is self sufficient. Same was the
treatment given by Hadrat `Ali ‫)رﺿﯽ ﷲ‬
(‫ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬. When he appeared in a court of
justice, and the judge offered him seat as a

17
mark of respect, he denied and said if a
judge starts doing like that, the justice will
be negated. After caliphate was over, the
materialistic trends increased amongst
Muslim rulers for which Islam should not be
blamed, even then whenever the light of
Islam prevailed men like `Umar bin `Abdul
`Aziz (‫ )رﺣﻤۃ ﷲ ﻋﻠﯿہ‬came on the world scene.
4. FREEDOM OF TRADE

     

       

         

 

18
O ye who believe! Eat not up your property
among yourselves in vanities: but let there
be amongst you traffic and trade by mutual
good-will: nor kill (or destroy) yourselves:
for Verily Allah hath been to you Most
Merciful!
[4:29]
Except the trade of unlawful (haram/‫)ﺣﺮام‬
goods there is freedom of joining any
profession, vocation and commerce or trade.
The only limitation on the trade is that there
should be no squandering of wealth in
vanity. None is allowed to cheat other or get
undue benefit. Hoarding, smuggling,
profiteering, gambling, speculations have
also been ousted from the definition of trade
by mutual consent in the interest of
mankind. The intention behind the unsocial
19
methods of trade is always to accumulate
wealth by fraudulent means in disguise of
various pleasant looking names. It is told
that the participants would become rich in a
night but often it happens that they lose their
hard earned income within few hours. Islam
being an universal way of life, the religion
of moderation, a system of peaceful living
and a mode of creating fraternity even
amongst the most hated ones, it has
forbidden the so called easy methods of
squeezing the wealth of others. The interest
of mankind, the welfare of sons of Adam
and the betterment of those living under the
sky and the earth is the sole intention of
Islam. It would not be out of question to
mention here that the Holy Qur’an has also
enjoined the writing of agreements for long

20
term trade based on loans and keeping of
mortgages, etc.
5. RULE OF LAW

         

        

         

Allah doth command you to render back

your Trusts to those to whom They are due;
and when ye judge between man and man,
that ye judge with justice: Verily How
excellent is the teaching which He giveth
you! for Allah is He who heareth and seeth
all things.
[4:58]
21
      

       

         

     

O ye who believe! stand out firmly for

Allah, As witnesses to fair dealing, and let
not the hatred of others to you make you
swerve to wrong and depart from justice. be
just: that is next to piety: and fear Allah. for
Allah is well-acquainted with all that ye do.
[5:8]
It is well established principle of justice that
at the time of adjudicating between the two
22
parties, the justice should be administered
without any fear or favour. There are two
things which come in the way of judging a
thing fairly, namely either the party
appearing before the judge is his relation or
friend who has rendered some service for
him in the past or for whom he had got
certain affections or there are other strains
which incline the judge to show his
inclination towards that party or the party is
an enemy or the one who has committed
some wrong to the judge or his relations or
friends in the past and a feeling of revenge is
thus hidden in his heart. These are two
stages where the real test of the judge comes
in. He must stand out firmly for justice
caring for neither party nor their relationship
not their social status and should fear none

23
but God and should administer justice
according to nothing but law and law alone.
Some things has been prescribed for the
witnesses in the Qur’an in the following
glorious verse:

       

        

         

         

    

O ye who believe! stand out firmly for

justice, As witnesses to Allah, Even As
24
against yourselves, or your parents, or your
kin, and whether it be (against) rich or poor:
for Allah can best protect both. follow not
the lusts (of your hearts), Lest ye swerve,
and if ye distort (justice) or decline to do
justice, Verily Allah is well- acquainted with
all that ye do.
[4:135]
The words “verily God is well-acquainted
with all that ye doing very important. They
tell that those who will do justice they are
also the very sight of God and will be
awarded their due and those who distort
justice or decline to do justice should also
note and beware of the Clutch of God which
in fact is the most severe. In doing justice
there is no question of Muslim and non-
Muslim, no discrimination of rich or poor,
25
consideration of friends and foes. It was
justice which had strength in the foundations
of Khilafat-i-Rashida.
6. INVIOLABILITY OF HOMES:

       

       

   

O ye who believe! enter not houses other

than your own, until ye have asked
permission and saluted those In them: that is
best for you, In order that ye may heed
(what is seemly).
[24:27]

26
The respect and dignity has been guaranteed
for all mankind for all mankind and it has
been ordained that permission be taken
while entering the houses of others and the
best way of asking the permission has been
taught to invoke peace upon the folk thereof.
7. INJUNCTION AGAINST SUSPICION
AND SPYING

       

        

       

          

27
O ye who believe! avoid suspicion As much
(as possible): for suspicion In some cases is
a sin: and spy not on Each other behind their
backs. would any of you like to eat the flesh
of His dead brother? Nay, ye would abhor
it...But fear Allah. for Allah is Oft-
Returning, Most Merciful.
[49:12]
To maintain internal order and to safeguard
against external attack suspicion should be
shunned. In other words, humanity as a
whole has been declared to be respectful.
Unnecessary and uncalled for suspicion
sometimes leads to unnecessary conflicts.
Same is the case with spying and backbiting.
Much damage has been done to mankind by
false propaganda through various mass
media of communication. Backbiting also
28
makes man coward and habit of telling a lie
is created. Islam has safeguarded from the
evil effects of suspicion and back biting.
8. NO LIABILITY FOR ACTIONS OF
OTHERS

          

         

        

  

Say: "Shall I seek for (my) Cherisher other

than Allah, when He is the Cherisher of all
things (That exist)? Every soul draws the

29
meed2 of its acts on none but itself: no
bearer of burdens can bear of burdens can
bear the burden of another. Your goal in the
end is towards Allah. He will tell you the
truth of the things wherein ye disputed."
[6:164]
This verse has made it clear that there is no
vicarious liability for the acts done by a
man. Each is responsible for his own
individual acts and offences. In pagan times
it was bad custom that one man’s fault was
put on another man’s shoulder which was
really unjust. The sins of a father would
bring punishment to the father and the sins
of a son would bring punishment to the son.

2
A fitting recompense.

30
This right has thus guaranteed the safety of
life on a common man who is innocent.
9. LIBERTY

      

 

Verily, this brotherhood of yours is a single

brotherhood, and I am your Lord and
Cherisher: Therefore serve me (and no
other).
[21:92]
Here mankind has been taught that they are
all brothers and common goal is the pleasure
of God. None is under the bondage of

31
another and all are under the bondage of
their Creator. The following are the
instances of the human rights that have been
available to mankind during the life of the
Prophet of Islam and his four pious Caliphs
and other followers.
LAST PROPHET HADRAT
MUHAMMAD (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯾہ و آﻟہ وﺳﻠم‬AND
FUNDAMENTAL RIGHTS
Hadrat Muhammad, the last of all Prophets
and the Messenger of Allah ( ),
‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬

impressed ineffaceably the unity of God and

the equality of men upon the minds of the
nations who heard his voice. His democratic
thunder was the signal for up rise of human
intellect against tyranny of priests and
oppressive institutions, when the Human
soul was crushed under the weight of co-
32
intelligible dogmas, and the human body
trampled under the tyranny of vested
interest, he broke down barriers of caste and
exclusive principles. He swept away with
his breath the cobwebs which self-interest
had woven in the path of man to God. He
abolished all exclusiveness in man’s
relations to his Creator.
The Prophet proclaimed, “People are all
equal as the teeth of comb.” He preached
freedom of speech and opinion. The highest
kind of Jihad (Holy War) is to speak for
truth in face of a Sultan (King or
Government) that deviates from right path.
One of the great declarations of human
rights is contained in the famous sermon of
the Holy Prophet delivered at Arafat on
March 7, 632 AD on the occasion of his
33
Farewell Pilgrimage: You lives and property
are sacred and inviolable as the sacred
inviolability of this very day of
(Pilgrimage).
FIRST WRITTEN CONSTITUTION
States are a very antique institution in
human society yet the earliest and first
written Constitution, in the sense that is
promulgated by the Sovereign of a State,
dates only from the time of the Holy Prophet
of Islam. Preserved by Ibn Hisham and Ibn
`Ubaid, among the extant classical writers,
the document has been translated into almost
all the languages of the world. It consists of
54 sections. It constituted Medina as a city
to be of Federal type. The federal units
consisted of three main sections of
population subdivided into many more, viz.,
34
Meccan refugees Medinite Arabs and Jews.
Each had autonomy in everything except
defence and foreign relations. The Jews had
a separate judicial system of their own.
Civic equality, freedom from fear, freedom
of belief and religious practice, freedom of
teaching, freedom of trade and commerce
were conceded therein.
ISLAMIC CHARTERS AND
DECLARATIONS
It will not be out of place to quote some of
the Charter granted and the Declarations
made by the Holy Prophet, early Caliphs and
the Muslim Generals whereby rights in the
nature of fundamental rights were fully
protected and guaranteed.

35
The Charter granted by Prophet Muhammad
(‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬to the Christians of
Najran reads as follows:
“(The people of) Najran and their
followers are granted the protection of
Allah and the security of Muhammad the
Prophet, the Messenger of Allah ( ‫ﺻﻠﯽ ﷲ‬
‫ )ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬, in respect of their person,
religion, lands and possessions, including
those who are absent and those who are
present, their camels, messengers and
images. The State in which they
previously were shall not be changed,
nor shall any of their religious services
or images be changed. No attempt shall
be made to turn a bishop from his
bishopric, a monk from his office,
whether what is under the control of each
36
 is small or great. They shall not be held
responsible for any wrong deed or
bloodshed in pre-Islamic times. They
shall not be called to military service nor
shall they have to pay the tithe. Not army
shall tread their law.”
ABU BAKR SIDDIQ (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ )
Immediately after election as Caliph, Abu
Bakr addressed the assemblage saying:
“And now verily I have been placed in
this authority though I am averse to it
and, by Allah, I would have been pleased
if anyone of you had sufficed for it in my
stead. I am a mortal and not better than
anyone of you; than of watchover me
and when you see that I am steadfast,
then obey me and when you see that I am
aside from the right path, set me right.
37
 Know, ye men, that piety is the most
solid goodness and the vilest of what is
vile is vice. Verily the strongest among
you before me is he that is weak,
inasmuch as I shall take for him what is
due to him and the wealthier among you
before me is he that is strong, inasmuch
as I shall take from him that which is due
by him. I have spoken and may Allah
have mercy upon me and upon you.”
`UMAR FARUQ (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ )
Caliph Omar granted the following charter
to the people at Jerusalem:
“In the name of God, the Merciful, the
Compassionate. This is the security
which `Umar, the servant of God, the
commander of the faithful, grants to the
people of Allah. He grants to all, whether
38
 sick or sound, security for the lives, their
possessions, their churches and their
crosses, and for all that concerns their
religion. Their churches shall not be
changed into dwelling places, nor
destroyed, neither shall they nor their
appurtenances be in any way diminished,
nor the crosses of the inhabitants nor
aught of their possession, nor shall any
constraint be put upon them in the matter
of their faith, nor shall any one of them
be harmed.”
`ALI AL-MURTADA (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ )
Caliph Ali sent the following letter to one of
his Governors:
“After prayers to God and praise of the
Holy Prophet (peace be upon him) be it
known to you that villagers, farmers and
39
husbandmen of the provinces under you,
complain of your harshness, arrogance
and cruelty. They complain that you
consider them as mean, humble and
insignificant and treat them insultingly
and you are cruel and harsh to them. I
deliberated about their complaint and
about the situation and I found that if on
account of their heathenism they do not
deserve any favourable treatments or
extra privileges yet they do not deserve
to be treated insultingly, cruelly and
harshly. They are governed by us, they
have made certain agreements with us
and we are obliged to respect and honour
the terms of those agreements.
Therefore, you in future be kind to them,
tolerate them and give them due respect,

40
 but at the same time keep your prestige
and guard well the position and honour
of the authority which you hold,
therefore govern with a soft but strong
hand. Treat them as they individually
deserve, kindly or harshly and with
respect or with contempt.”
Khalid bin Walid (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ )
Another famous Charter of Liberty, which
shows a true Islamic spirit, was that issued
by Khalid bin Walid, the great commander
who served the first Caliph, Abu Bakr, and
who was called as the Sword of Allah. The
Charter reads:
“In the name of Allah the
Compassionate, the Merciful: this is
what Khalid bin Walid would grant to
the inhabitants of Damascus if he enters
41
 therein. He promises to give them
security for their lives, property, and
churches. Their city walls shall not be
demolished, neither shall any Muslim be
quartered in their houses. Thereunto we
give them the pact of Allah and the
protection of His Prophet, the Caliph and
the believers. So long as they pay their
taxes, nothing but the good shall befall
them.”
ABBASIDE CALIPHS
The distinguished Orientalist, Dr. Mingana,3
commenting on the Charter of Liberty
granted by one of the Abbaside Caliphs to
the Nestorian Christians points out that it
guaranteed freedom of worship, the right to
3
<http://www.mingana.bham.ac.uk/biog.pdf> visited 3 June
2012.

42
appoint church officers, the protection of
property, and the free exercise of religious
rites and duties. He then goes on to discuss
the civil freedom enjoyed by the Nestorians,
and says:
“The statutory attitude of Islam in this
subject is laid down in clear terms in the
said document which proves beyond the
possibility of doubt that statutory
intolerance was not among the defects of
Islam. The charter emanates from the
Chancery of an Abbaside Caliph, but
could an English King, a Dutch Queen or
a French President write in the Twentieth
Century a more tolerant charter in favour
of their innumerable Muslim subjects.”

43
‫‪Universal Declaration of Human Rights by‬‬
‫‪the United Nations Organization4‬‬

‫‪4‬‬
‫‪The Arabic Translation of UDHR is as under:‬‬

‫اﻟﺪﯾﺒﺎﺟﺔ‬

‫ٔ ﴎة اﻟ ﴩﯾﺔ وﲝﻘﻮﻗﻬﻢ اﻟﻤ ﺴﺎوﯾﺔ اﻟﺜﺎﺑﺘﺔ ﻫﻮ‬ ‫ﰷن ﻟﻜﺮاﻣﺔ اﻟﻤﺘ ٔ ﺻﻠﺔ ﰲ ﲨﯿﻊ ٔ ﻋﻀﺎء ا‬
‫اﻻﻋﱰاف‬
‫ﻟﻤﺎ‬
‫ٔ ﺳﺎس اﳊﺮﯾﺔ واﻟﻌﺪل واﻟﺴﻼم ﰲ اﻟﻌﺎﱂ‪.‬‬

‫ﺣﻘﻮق اﻻ ٕ ﺴﺎن وازدراؤﻫﺎ ﻗﺪ ٔ ﻓﻀﯿﺎ ا ٕﱃ ٔ ﲻﺎل ﳘﺠﯿﺔ ٓ ذت اﻟﻀﻤﲑ اﻻ ٕ ﺴﺎﱐ‪ ،‬وﰷن‬

‫وﻟﻤﺎ ﰷن‬
‫ﺗﻨﺎﳼ‬
‫اﻟﻔﺰع‬ ‫ا ٕ ﻟﯿﻪ ﻋﺎﻣﺔ اﻟ ﴩ اﻧ ﺜﺎق ﻋﺎﱂ ﯾﺘﻤﺘﻊ ﻓﯿﻪ اﻟﻔﺮد ﲝﺮﯾﺔ اﻟﻘﻮل واﻟﻌﻘﯿﺪة وﯾﺘﺤﺮر‬ ‫ﻏﺎﯾﺔ ﻣﺎ‬
‫واﻟﻔﺎﻗﺔ‪.‬‬

‫ٔ ﻣﺮ ا ٕﱃ اﻟﺘﻤﺮد‬ ‫اﻟﴬوري ٔ ن ﯾﺘﻮﱃ اﻟﻘﺎ ن ﲪﺎﯾﺔ ﺣﻘﻮق اﻻ ٕ ﺴﺎن ﻟﻜﯿﻼ ﯾﻀﻄﺮ اﻟﻤﺮء ٓ ﺧﺮ ا‬
‫وﻟﻤﺎ ﰷن‬
‫اﻻﺳ ﺒﺪاد واﻟﻈﻠﻢ‪.‬‬

‫اﳉﻮﻫﺮي ﺗﻌﺰ ﺗﻨﻤﯿﺔ اﻟﻌﻼﻗﺎت اﻟﻮدﯾﺔ ﺑﲔ اﻟﺪول‪،‬‬ ‫وﻟﻤﺎ ﰷن‬

‫ٔ ﺳﺎﺳ ﺔ‬ ‫ﺟﺪﯾﺪ ا ٕﳝﺎﳖﺎ ﲝﻘﻮق اﻻ ٕ ﺴﺎن ا‬ ‫ﰷﻧﺖ ٔ ﱈ اﻟﻤﺘﺤﺪة ﻗﺪ ٔ ﻛﺪت ﰲ اﻟﻤﯿﺜﺎق‬

‫ﺷﻌﻮب ا‬
‫وﻟﻤﺎ‬
‫ٔ ن ﺗﺪﻓﻊ ﻟﺮﰶ‬ ‫ﺣﻘﻮق ﻣ ﺴﺎوﯾﺔ وﺣﺰﻣﺖ ٔ ﻣﺮﻫﺎ‬ ‫وﺑﻜﺮاﻣﺔ اﻟﻔﺮد وﻗﺪرﻩ وﲟﺎ ﻠﺮﺟﺎل واﻟ ﺴﺎء‬
‫اﳊﺮﯾﺔ ٔ ﻓﺴﺢ‪.‬‬ ‫ﻗﺪﻣﺎ ً و ٔ ن ﻓﻊ ﻣﺴ ﻮى اﳊﯿﺎة ﰲ ﺟﻮ‬ ‫اﻻﺟ‬

‫‪44‬‬
 ‫ﲷﺎن اﻃﺮاد ﻣﺮاﻋﺎة ﺣﻘﻮق‬ ‫ٔ ﱈ اﻟﻤﺘﺤﺪة‬ ‫ﺗﻌﻬﺪت ﻟﺘﻌﺎون ﻣﻊ ا‬
‫ٔ ﻋﻀﺎء ﻗﺪ‬ ‫اﻟﺪول ا‬
‫وﻟﻤﺎ ﰷﻧﺖ‬
‫ٔ ﺳﺎﺳ ﺔ واﺣﱰاﻣﻬﺎ‪.‬‬ ‫اﻻ ٕ ﺴﺎن واﳊﺮ ت ا‬

‫ٔ ﳘﯿﺔ اﻟﻜﱪى ﻠﻮﻓﺎء اﻟﺘﺎم ﲠﺬا اﻟﺘﻌﻬﺪ‪.‬‬ ‫ﰷندراك اﻟﻌﺎم ﻟﻬﺬﻩ اﳊﻘﻮق واﳊﺮ ت ا‬
‫وﻟﻤﺎ ﻼ ٕ‬

‫ﻓﺎ ٕن اﳉﻤﻌﯿﺔ اﻟﻌﺎﻣﺔ ﺗﻨﺎدي ﲠﺬا اﻻ ٕﻋﻼن اﻟﻌﺎﻟﻤﻲ ﳊﻘﻮق اﻻ ٕ ﺴﺎن ٔ ﻧﻪ اﻟﻤﺴ ﻮى اﻟﻤﺸﱰك اﻟﺬي ﯾ ﺒ‬
‫اﻟﺪوام ﻫﺬا‬ ‫ﺴ ﰻ ﻓﺮد وﻫﯿﺌﺔ ﰲ اﻟﻤﺠﺘﻤﻊ‪ ،‬واﺿﻌﲔ‬ ‫ٔﱈ‬ ‫ٔ ن ﺴﳤﺪﻓﻪ ﰷﻓﺔ اﻟﺸﻌﻮب وا‬
‫ﻃﺮﯾﻖ اﻟﺘﻌﻠﲓ واﻟﱰﺑﯿﺔ واﲣﺎذ‬ ‫اﻻ ٕﻋﻼن ﻧﺼﺐ ٔ ﻋﯿﳯﻢ‪ ،‬ا ٕ ﱃ ﻃﯿﺪ اﺣﱰام ﻫﺬﻩ اﳊﻘﻮق واﳊﺮ ت‬
‫ا ٕﺟﺮاءات ﻣﻄﺮدة‪ ،‬ﻗﻮﻣﯿﺔ وﻋﺎﻟﻤﯿﺔ‪ ،‬ﻟﻀﻤﺎن اﻻﻋﱰاف ﲠﺎ وﻣﺮاﻋﺎﲥﺎ ﺑﺼﻮرة ﻋﺎﻟﻤﯿﺔ ﻓﻌﺎﻟﺔ ﺑﲔ اﻟﺪول‬
‫ٔ ﻋﻀﺎء ذاﲥﺎ وﺷﻌﻮب اﻟﺒﻘﺎع اﳋﺎﺿﻌﺔ ﻟﺴﻠﻄﺎﳖﺎ‪.‬‬ ‫ا‬

‫‪.‬اﻟﻤﺎدة ‪1‬‬

‫ﻟﺪ ﲨﯿﻊ‪‬اﻟﻨﺎس ٔ ﺣﺮارا ً ﻣ ﺴﺎو ﰲ اﻟﻜﺮاﻣﺔ واﳊﻘﻮق‪ ،‬وﻗﺪ وﻫﺒﻮا ﻋﻘﻼ ً وﲷﲑا ً وﻋﻠﳱﻢ ٔ ن‬
‫وح اﻻ ٕ ﺧﺎء‪.‬‬ ‫ﯾﻌﺎﻣﻞ ﺑﻌﻀﻬﻢ ﺑﻌﻀﺎ ً‬

‫‪.‬اﻟﻤﺎدة ‪2‬‬

‫ﻟﻮاردة ﰲ ﻫﺬا اﻻ ٕ ﻋﻼن‪ ،‬دون ٔ ي ﲤﯿﲒ‪،‬‬

‫ﻟﲁ ا ٕ ﺴﺎن ﺣﻖ اﻟﺘﻤﺘﻊ ﺑﲀﻓﺔ اﳊﻘﻮق واﳊﺮ ت ا‬ ‫‪‬‬

‫ٔ و اﻟﺮ ٔ ي اﻟﺴ ﺎﳼ ٔ و ٔ ي ر ٔ ي ٓ ﺧﺮ‪ ٔ ،‬و‬ ‫ﻌﻨﴫ ٔ و ا ﻠﻮن ٔ و اﳉ ﺲ ٔ و ا ﻠﻐﺔ ٔ و اﻟﺪ‬

‫‪45‬‬
 ‫ٔ و اﻟﱶوة ٔ و اﻟﻤﯿﻼد ٔ و ٔ ي وﺿﻊ ٓ ﺧﺮ‪ ،‬دون ٔ ﯾﺔ ﺗﻔﺮﻗﺔ ﺑﲔ اﻟﺮﺟﺎل‬ ‫ﻞ اﻟﻮﻃﲏ ٔ و اﻻﺟ‬
‫ﲤﯿﲒ ٔ ٔيﺳﺎﺳﻪ اﻟﻮﺿﻊ اﻟﺴ ﺎﳼ ٔ و اﻟﻘﺎ ﱐ ٔ و اﻟﺪوﱄ‬
‫وﻓﻀﻼ ﲻﺎ ﺗﻘﺪم ﻓﻠﻦ ﯾﻜﻮن ﻫﻨﺎك‬
‫واﻟ ﺴﺎء‪.‬‬
‫ا ٕﻟﳱﺎ اﻟﻔﺮد ﺳﻮاء ﰷن ﻫﺬا اﻟﺒﻠﺪ ٔ و ﺗﻠﻚ اﻟﺒﻘﻌﺔ ﻣﺴ ﻘﻼ ٔ و ﲢﺖ اﻟﻮﺻﺎﯾﺔ ٔ و‬ ‫ﻟﺒﻠﺪ ٔ و اﻟﺒﻘﻌﺔ اﻟﱵ ﯾ‬
‫اﻟﻘﯿﻮد‪.‬‬ ‫ٔ ي ﻗﯿﺪ‬ ‫ﻏﲑ ﻣﺘﻤﺘﻊ ﳊﲂ اﻟﺬاﰐ ٔ و ﰷﻧﺖ ﺳ ﺎدﺗﻪ ﺧﺎﺿﻌﺔ‬

‫‪.‬اﻟﻤﺎدة ‪3‬‬

‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ اﳊﯿﺎة واﳊﺮﯾﺔ وﺳﻼﻣﺔ ﴯﺼﻪ‪.‬‬ ‫‪‬‬

‫‪.‬اﻟﻤﺎدة ‪4‬‬

‫‪‬ﻻﳚﻮز اﺳﱰﻗﺎق ٔ و اﺳ ﻌﺒﺎد ٔ ي ﴯﺺ‪ ،‬وﳛﻈﺮ اﻻﺳﱰﻗﺎق وﲡﺎرة اﻟﺮﻗﯿﻖ ﺑﲀﻓﺔ ٔ وﺿﺎﻋﻬﻤﺎ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪5‬‬

‫ﻻﯾﻌﺮض ٔ ي ا ٕ ﺴﺎن ﻠﺘﻌﺬﯾﺐ وﻻ ﻠﻌﻘﻮ ت ٔ و اﻟﻤﻌﺎﻣﻼت اﻟﻘﺎﺳ ﺔ ٔ و اﻟﻮﺣﺸ ﺔ ٔ و اﳊﺎﻃﺔ‬

‫‪‬‬

‫ﻟﻜﺮاﻣﺔ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪6‬‬

‫ﻟﲁ ا ٕ ﺴﺎن ٔ ﯾ وﺟﺪ اﳊﻖ ﰲ ٔ ن ﯾﻌﱰف ﺸﺨﺼﯿﺘﻪ اﻟﻘﺎ ﻧﯿﺔ‪.‬‬ ‫‪‬‬

‫‪46‬‬
‫‪.‬اﻟﻤﺎدة ‪7‬‬

‫ﰻ اﻟﻨﺎس ﺳﻮاﺳ ﺔ ٔ ﻣﺎم اﻟﻘﺎ ن وﻟﻬﻢ اﳊﻖ ﰲ اﻟﺘﻤﺘﻊ ﲝﻤﺎﯾﺔ ﻣﺘﲀﻓﺌﺔ ﻋﻨﻪ دون ٔ ﯾﺔ ﺗﻔﺮﻗﺔ‪،‬‬ ‫‪‬‬

‫ﲤﯿﲒ‬ ‫ٔ ن ﻟﻬﻢ ﲨﯿﻌﺎ اﳊﻖ ﰲ ﲪﺎﯾﺔ ﻣ ﺴﺎوﯾﺔ ﺿﺪ ٔ ي ﲤﲒ ﳜﻞ ﲠﺬا اﻻ ٕ ﻋﻼن وﺿﺪ ٔ ي ﲢﺮﯾﺾ‬
‫ﻛﻬﺬا‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪8‬‬

‫اﳊﻘﻮق‬ ‫ٔ ﲻﺎل ﻓﳱﺎ اﻋﺘﺪاء‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ٔ ن ﯾﻠﺠ ٔ ا ٕﱃ اﻟﻤﺤﺎﰼ اﻟﻮﻃﻨﯿﺔ ﻻ ٕ ﻧﺼﺎﻓﻪ‬
‫‪‬‬

‫ٔ ﺳﺎﺳ ﺔ اﻟﱵ ﳝﻨﺤﻬﺎ ﻟﻪ اﻟﻘﺎ ن‪.‬‬ ‫ا‬

‫‪.‬اﻟﻤﺎدة ‪9‬‬

‫ٔ ي ا ٕ ﺴﺎن ٔ و ﲩﺰﻩ ٔ و ﻧﻔﯿﻪ ﺗﻌﺴﻔﺎ ً ‪.‬‬ ‫ﻻ ﳚﻮز‪ ‬اﻟﻘﺒﺾ‬

‫‪.‬اﻟﻤﺎدة ‪10‬‬

‫ﻗﻀﯿﺘ ٔ ﻣﺎم ﳏﳬﺔ‬

‫ٓ ﺧﺮ ‪ ،‬ﰲ ٔ ن ﺗﻨﻈﺮ ﻪ‬ ‫ﻗﺪم اﻟﻤﺴﺎواة اﻟﺘﺎﻣﺔ ﻣﻊ ا‬ ‫ﻟﲁ ا ٕ ﺴﺎن اﳊﻖ‪،‬‬ ‫‪‬‬

‫ﺴ ﻘﻠﺔ ﳞﺔ ﻧﻈﺮا ً ﻋﺎدﻻ ً ﻋﻠﻨﯿﺎ ً ﻠﻔﺼﻞ ﰲ ﺣﻘﻮﻗﻪ واﻟﱱاﻣﺎﺗﻪ و ٔ ﯾﺔ ﲥﻤﺔ ﺟﻨﺎﺋﯿﺔ ﺟﻪ ا ٕ ﻟﯿﻪ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪11‬‬

‫ً ﲟﺤﺎﳈﺔ ﻋﻠﻨﯿﺔ ﺗﺆ ﻟﻪ ﻓﳱﺎ‬ ‫ﻣﳤﻢ ﲜﺮﳝﺔ ﯾﻌﺘﱪ ﯾﺌﺎ ً ا ٕﱃ ٔ ن ﺗﺜ ﺖ ا ٕداﻧﺘﻪ ﻗﺎ‬

‫ﰻ ﴯﺺ ) ‪( 1‬‬
‫‪‬‬

‫اﻟﻀﻤﺎ ت اﻟﴬورﯾﺔ ﻠﺪﻓﺎع ﻋﻨﻪ‪.‬‬

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 ‫ٔ داة ﲻﻞ ا ٕﻻ ا ٕذا ﰷن ذﻟﻚ ﯾﻌﺘﱪ‬ ‫ﴯﺺ ٔ داة ﲻﻞ ٔ و اﻻﻣﺘﻨﺎع‬
‫) ‪2‬ﻻ(ﯾﺪان ٔ يﺟﺮاء‬ ‫‪‬‬

‫ﺗﻠﻚ اﻟﱵ‬ ‫ﺟﺮﻣﺎ ً وﻓﻘﺎ ً ﻠﻘﺎ ن اﻟﻮﻃﲏ ٔ و اﻟﺪوﱄ وﻗﺖ اﻻرﺗﲀب‪ ،‬ﻛﺬﻟﻚ ﻻ ﻗﻊ ﻋﻠﯿﻪ ﻋﻘﻮﺑﺔ ٔ ﺷﺪ‬
‫ﰷن ﳚﻮز ﻗﯿﻌﻬﺎ وﻗﺖ ارﺗﲀب اﳉﺮﳝﺔ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪12‬‬

‫ﻣﺴﻜﻨو ﻣﺮاﺳﻼﺗﻪ ٔ و ﳊﻤﻼت‬

‫ﻻ ‪‬ﯾﻌﺮض ٔ ﺣﺪ ﻟﺘﺪﺧﻞ ﺗﻌﺴ ﰲ ﺣﯿﺎﺗﻪ اﳋﺎﺻﺔ ٔ و ٔ ﴎﺗﻪ ٔ وﻪ ٔ‬
‫ﻣﺜﻞ ﻫﺬا اﻟﺘﺪﺧﻞ ٔ و ﺗﻠﻚ اﳊﻤﻼت‪.‬‬ ‫ﴍﻓﻪ وﲰﻌﺘﻪ‪ ،‬وﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﲪﺎﯾﺔ اﻟﻘﺎ ن‬

‫‪.‬اﻟﻤﺎدة ‪13‬‬

‫) ‪( 1‬ﻟﲁ ﻓﺮد ﺣﺮﯾﺔ اﻟﺘﻨﻘﻞ واﺧﺘﯿﺎر ﳏﻞ ا ٕ ﻗﺎﻣﺘﻪ داﺧﻞ ﺣﺪود ﰻ دوﻟﺔ‪.‬‬ ‫‪‬‬

‫ﻟﲁ ﻓﺮد ٔ ن ﯾﻐﺎدر ٔ ﯾﺔ ﺑﻼد ﲟﺎ ﰲ ذﻟﻚ ﺑﻠﺪﻩ ﳛﻖ ﻟﻪ اﻟﻌﻮدة ا ٕ ﻟﯿﻪ‪.‬‬

‫ﳛﻖ) ‪( 2‬‬ ‫‪‬‬

‫‪.‬اﻟﻤﺎدة ‪14‬‬

‫اﻻﺿﻄﻬﺎد‪.‬‬ ‫ً‬ ‫ﻓﺮد اﳊﻖ ﰲ ) ٔ‪( 1‬ن ﯾﻠﺠ ٔ ا ٕﱃ ﺑﻼد ٔ ﺧﺮى ٔ و ﳛﺎول اﻻﻟﺘﺠﺎء ا ٕﻟﳱﺎ ﻫﺮ‬
‫ﻟﲁ ‪‬‬

‫ٔ ﲻﺎل ﺗﻨﺎﻗﺾ ٔ ﻏﺮاض‬ ‫ﻗﺪم ﻠﻤﺤﺎﳈﺔ ﰲ ﺟﺮاﰂ ﻏﲑ ﺳ ﺎﺳ ﺔ ٔ و‬ ‫ﺘﻔﻊ (ﲠﺬا اﳊﻖ‬

‫ﻻﯾ )‪2‬‬ ‫‪‬‬

‫ٔ ﱈ اﻟﻤﺘﺤﺪة وﻣﺒﺎدﲛﺎ‪.‬‬ ‫ا‬

‫‪.‬اﻟﻤﺎدة ‪15‬‬

‫) ‪ ( 1‬ﻟﲁ ﻓﺮد ﺣﻖ اﻟﺘﻤﺘﻊ ﲜ ﺴ ﺔ ﻣﺎ‪.‬‬ ‫‪‬‬

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 ‫ٔ و ا ٕﻧﲀر ﺣﻘﻪ ﰲ ﺗﻐﯿﲑﻫﺎ‪.‬‬ ‫ﺟ ﺴ ﺘﻪ ﺗﻌﺴﻔﺎ ً‬ ‫ﺣﺮﻣﺎن ﴯﺺ‬
‫ﳚﻮز ‪( 2‬‬
‫ﻻ )‬ ‫‪‬‬

‫‪.‬اﻟﻤﺎدة ‪16‬‬

‫واﻟﻤﺮ( ٔ ة ﻣﱴ ﺑﻠﻐﺎ ﺳﻦ اﻟﺰواج ﺣﻖ اﻟﱱوج وﺗ ٔ ﺳ ﺲ ٔ ﴎة دون ٔ ي ﻗﯿﺪ ﺴ ﺐ‬

‫‪ ‬ﻠﺮﺟﻞ ) ‪1‬‬
‫اﳉ ﺲ ٔ و اﻟﺪ ‪ ،‬وﻟﻬﻤﺎ ﺣﻘﻮق ﻣ ﺴﺎوﯾﺔ ﻋﻨﺪ اﻟﺰواج و ٔ ﺛﻨﺎء ﻗﯿﺎﻣﻪ وﻋﻨﺪ اﳓﻼﻟﻪ‪.‬‬
‫ﴇ اﻟﻄﺮﻓﲔ اﻟﺮاﻏﺒﲔ ﰲ اﻟﺰواج رﴇ ﰷﻣﻼ ً ﻻ ا ٕﻛﺮاﻩ ﻓﯿﻪ‪.‬‬
‫) ‪( 2‬ﻻ ﯾﱪم ﻋﻘﺪ اﻟﺰواج ا ٕﻻ‬ ‫‪‬‬

‫ٔ ﺳﺎﺳ ﺔ ﻠﻤﺠﺘﻤﻊ وﻟﻬﺎ ﺣﻖ اﻟﺘﻤﺘﻊ ﲝﻤﺎﯾﺔ اﻟﻤﺠﺘﻤﻊ‬ ‫ا ) ٔ‪( 3‬ﴎة ﱔ اﻟﻮﺣﺪة اﻟﻄﺒﯿﻌﯿﺔ ا‬ ‫‪‬‬

‫واﻟﺪوﻟﺔ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪17‬‬

‫ﻟﲁ ﴯﺺ ﺣﻖ اﻟﺘﻤﻠﻚ ﲟﻔﺮدﻩ ٔ و ﻻﺷﱰاك ﻣﻊ ﻏﲑﻩ‪.‬‬

‫)‪(1‬‬ ‫‪‬‬

‫ﻣﻠﻜﻪ ﺗﻌﺴﻔﺎ ً ‪.‬‬ ‫ﳚﻮز‪( 2‬ﲡﺮﯾﺪ ٔ ﺣﺪ‬

‫ﻻ )‬ ‫‪‬‬

‫اﻟﺼﻔﺤﺔ‬ ‫ٕﱃ ٔ‬
‫ا^‬

‫‪.‬اﻟﻤﺎدة ‪18‬‬

‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻟﺘﻔﻜﲑ واﻟﻀﻤﲑ واﻟﺪ ‪ ،‬و ﺸﻤﻞ ﻫﺬا اﳊﻖ ﺣﺮﯾﺔ ﺗﻐﯿﲑ د ﻧﺘﻪ ٔ و‬ ‫‪‬‬

‫ﻋﻘﯿﺪﺗﻪ‪ ،‬وﺣﺮﯾﺔ اﻻ ٕﻋﺮاب ﻋﳯﻤﺎ ﻟﺘﻌﻠﲓ واﻟﻤﻤﺎرﺳﺔ وا ٕ ﻗﺎﻣﺔ اﻟﺸﻌﺎ ﺮ وﻣﺮاﻋﺎﲥﺎ ﺳﻮاء ٔ ﰷن ذﻟﻚ ﴎا ً‬
‫ٔ م ﻣﻊ اﳉﻤﺎﻋﺔ‪.‬‬

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‫‪.‬اﻟﻤﺎدة ‪19‬‬

‫ٓ راء دون ٔ ي‬ ‫‪‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻟﺮ ٔ ي واﻟﺘﻌﺒﲑ‪ ،‬و ﺸﻤﻞ ﻫﺬا اﳊﻖ ﺣﺮﯾﺔ اﻋﺘﻨﺎق ا‬
‫ٔ ﻓﲀر وﺗﻠﻘﳱﺎ وا ٕذاﻋﳤﺎ ﺑ ٔ ﯾﺔ وﺳ ﻠﺔ ﰷﻧﺖ دون ﺗﻘﯿﺪ ﳊﺪود‬ ‫ٔ ﻧﺒﺎء وا‬ ‫ﺗﺪﺧﻞ‪ ،‬واﺳ ﻘﺎء ا‬
‫اﳉﻐﺮاﻓﯿﺔ‪.‬‬
‫اﻟﺼﻔﺤﺔ‬ ‫ٕﱃ ٔ‬
‫ا^‬

‫‪.‬اﻟﻤﺎدة ‪20‬‬

‫) ‪ ( 1‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻻﺷﱰاك ﰲ اﳉﻤﻌﯿﺎت واﳉﻤﺎﻋﺎت اﻟﺴﻠﻤﯿﺔ‪.‬‬ ‫‪‬‬

‫اﻻﻧﻀﻤﺎم ا ٕ ﱃ ﲨﻌﯿﺔ ﻣﺎ‪.‬‬ ‫)ﻻ ‪( 2‬ﳚﻮز ا ٕرﻏﺎم ٔ ﺣﺪ‬ ‫‪‬‬

‫اﻟﺼﻔﺤﺔ‬ ‫ٕﱃ ٔ‬
‫ا^‬

‫‪.‬اﻟﻤﺎدة ‪21‬‬

‫اﳊﻖ ﰲ اﻻﺷﱰاك ﰲ ا ٕدارة اﻟﺸﺆون اﻟﻌﺎﻣﺔ ﻟﺒﻼدﻩ ا ٕﻣﺎ ﻣﺒﺎﴍة وا ٕﻣﺎ اﺳﻄﺔ‬
‫) ‪ ( 1‬ﻟﲁ ﻓﺮد‬ ‫‪‬‬

‫ﳑﺜﻠﲔ ﳜﺘﺎرون اﺧﺘﯿﺎرا ً ﺣﺮا ً ‪.‬‬

‫) ‪ ( 2‬ﻟﲁ ﴯﺺ ﻧﻔﺲ اﳊﻖ اﻟﺬي ﻟﻐﲑﻩ ﰲ ﺗﻘﻠﺪ اﻟﻮﻇﺎﺋﻒ اﻟﻌﺎﻣﺔ ﰲ اﻟﺒﻼد‪.‬‬ ‫‪‬‬

‫ﻫﺬﻩ اﻻ ٕ رادة ﻧﺘﺨﺎ ت ﳞﺔ‬ ‫) ‪3‬ا (ٕن ا ٕرادة اﻟﺸﻌﺐ ﱔ ﻣﺼﺪر ﺳﻠﻄﺔ اﳊﻜﻮﻣﺔ‪ ،‬وﯾﻌﱪ‬ ‫‪‬‬

‫ﻗﺪم اﻟﻤﺴﺎواة ﺑﲔ اﳉﻤﯿﻊ ٔ و ﺣﺴﺐ ٔ ي ا ٕﺟﺮاء ﳑﺎﺛﻞ‬ ‫دورﯾﺔ ﲡ ٔ ﺳﺎس اﻻﻗﱰاع اﻟﴪي و‬
‫ﺮي‬
‫ﯾﻀﻤﻦ ﺣﺮﯾﺔ اﻟﺘﺼﻮﯾﺖ‪.‬‬

‫‪50‬‬
‫‪.‬اﻟﻤﺎدة ‪22‬‬

‫ﻟﲁ ﴯﺺ ﺑﺼﻔﺘﻪ ﻋﻀﻮا ً ﰲ اﻟﻤﺠﺘﻤﻊ اﳊﻖ ﰲ اﻟﻀﻤﺎﻧﺔ اﻻﺟ ﻋﯿﺔ وﰲ ٔ ن ﲢﻘﻖ ﺳﺎﻃﺔ اﻟﻤﺠﻬﻮد‬ ‫‪‬‬

‫اﻟﻘﻮﱊ واﻟﺘﻌﺎون اﻟﺪوﱄ وﲟﺎ ﯾﺘﻔﻖ وﻧﻈﻢ ﰻ دوﻟﺔ وﻣﻮاردﻫﺎ اﳊﻘﻮق اﻻﻗﺘﺼﺎدﯾﺔ واﻻﺟ ﻋﯿﺔ‬
‫واﻟﱰ ﯾﺔ اﻟﱵ ﻻﻏﲎ ﻋﳯﺎ ﻟﻜﺮاﻣﺘﻪ و ﻠﻨﻤﻮ اﳊﺮ ﻟﺸﺨﺼﯿﺘﻪ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪23‬‬

‫ٔ ن ﻟﻪ ﺣﻖ اﳊﻤﺎﯾﺔ‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ اﻟﻌﻤﻞ‪ ،‬وﻟﻪ ﺣﺮﯾﺔ اﺧﺘﯿﺎرﻩ ﴩوط ﻋﺎدﻟﺔ ﻣﺮﺿﯿﺔ‬
‫)‪(1‬‬ ‫‪‬‬

‫اﻟﺒﻄﺎﻟﺔ‪.‬‬
‫ﻟﲁ (ﻓﺮد دون ٔ ي ﲤﯿﲒ اﳊﻖ ﰲ ٔ ﺟﺮ ﻣ ﺴﺎو ﻠﻌﻤﻞ‪.‬‬
‫)‪2‬‬ ‫‪‬‬

‫ٔ ﴎﺗﻪ ﻋ ﺸﺔ ﻻﺋﻘﺔ ﺑﻜﺮاﻣﺔ‬ ‫ﯾﻘﻮماﳊﻖ ﰲ ٔ ﺟﺮ ﻋﺎدل ﻣﺮض ﯾﻜﻔﻞ ﻟﻪ و‬

‫) ‪ ( 3‬ﻟﲁ ﻓﺮدﺑﻌﻤﻞ‬ ‫‪‬‬

‫اﻻ ٕ ﺴﺎن ﺗﻀﺎف ا ٕ ﻟﯿﻪ‪ ،‬ﻋﻨﺪ ا ﻠﺰوم‪ ،‬وﺳﺎﺋﻞ ٔ ﺧﺮى ﻠﺤﻤﺎﯾﺔ اﻻﺟ ﻋﯿﺔ‪.‬‬
‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ٔ ن ﯾ ﺸﺊ وﯾﻨﻀﻢ ا ٕ ﱃ ﻧﻘﺎ ت ﲪﺎﯾﺔ ﻟﻤﺼﻠﺤﺘﻪ‬
‫)‪(4‬‬ ‫‪‬‬

‫‪.‬اﻟﻤﺎدة ‪24‬‬

‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ اﻟﺮاﺣﺔ‪ ،‬وﰲ ٔ وﻗﺎت اﻟﻔﺮاغ‪ ،‬وﻻﺳ ﻤﺎ ﰲ ﲢﺪﯾﺪ ﻣﻌﻘﻮل ﻟﺴﺎﻋﺎت اﻟﻌﻤﻞ وﰲ‬ ‫‪‬‬

‫ﻋﻄﻼت دورﯾﺔ ﺑ ٔ ﺟﺮ‪.‬‬

‫‪51‬‬
‫‪.‬اﻟﻤﺎدة ‪25‬‬

‫اﻟﺼﺤﺔ واﻟﺮﻓﺎﻫﯿﺔ ﻟﻪ‬ ‫اﻟﻤﻌ ﺸﺔ ﰷف ﻠﻤﺤﺎﻓﻈﺔ‬ ‫) ‪ ( 1‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﻣﺴ ﻮى‬ ‫‪‬‬

‫ٔ ﴎﺗﻪ‪ ،‬وﯾﺘﻀﻤﻦ ذﻟﻚ اﻟﺘﻐﺬﯾﺔ واﻟﻤﻠ ﺲ واﻟﻤﺴﻜﻦ واﻟﻌﻨﺎﯾﺔ اﻟﻄﺒﯿﺔ وﻛﺬﻟﻚ اﳋﺪﻣﺎت‬ ‫و‬
‫اﻻﺟ ﻋﯿﺔ ا ﻼزﻣﺔ‪ ،‬وﻟﻪ اﳊﻖ ﰲ ﺗ ٔ ﻣﲔ ﻣﻌ ﺸ ﻪ ﰲ ﺣﺎﻻت اﻟﺒﻄﺎﻟﺔ واﻟﻤﺮض واﻟﻌﺠﺰ واﻟﱰﻣﻞ‬
‫ا ٕرادﺗﻪ‪.‬‬ ‫ﻓﻘﺪان وﺳﺎﺋﻞ اﻟﻌ ﺶ ﻧ ﯿﺠﺔ ﻟﻈﺮوف ﺧﺎرﺟﺔ‬ ‫واﻟﺸ ﺨﻮﺧﺔ وﻏﲑ ذﻟﻚ‬
‫ٔ ﻃﻔﺎل ﺑﻨﻔﺲ اﳊﻤﺎﯾﺔ‬ ‫) ٔ‪( 2‬ﻣﻮﻣﺔ واﻟﻄﻔﻮﻟﺔ اﳊﻖ ﰲ ﻣﺴﺎﻋﺪة ورﻋﺎﯾﺔ ﺧﺎﺻﺘﲔ‪ ،‬وﯾﻨﻌﻢ ﰻ ا‬ ‫‪‬‬

‫ٔ و ﺑﻄﺮﯾﻘﺔ ﻏﲑ ﴍﻋﯿﺔ‪.‬‬ ‫ر طﴍ‬ ‫اﻻﺟ ﻋﯿﺔ ﺳﻮاء ٔ ﰷﻧﺖ وﻻدﲥﻢ ﲡﺔ‬

‫‪.‬اﻟﻤﺎدة ‪26‬‬

‫ٔ ﺳﺎﺳ ﺔ‬ ‫ٔ وﱃ وا‬ ‫ﴯﺺ اﳊﻖ ﰲ اﻟﺘﻌﻠﻢ‪ ،‬وﳚﺐ ٔ ن ﯾﻜﻮن اﻟﺘﻌﻠﲓ ﰲ ﻣﺮاﺣﻠﻪ ا‬

‫ﻟﲁ ) ‪( 1‬‬ ‫‪‬‬

‫ٔ ن ﯾﻌﻤﻢ اﻟﺘﻌﻠﲓ اﻟﻔﲏ واﻟﻤﻬﲏ‪ ،‬و ٔ ن ﯾ ﴪ‬ ‫ٔ وﱄ ا ٕﻟﺰاﻣﯿﺎ ً وﯾ ﺒ‬ ‫ﻗﻞ ﻟﻤﺠﺎن‪ ،‬و ٔ ن ﯾﻜﻮن اﻟﺘﻌﻠﲓ ا‬
‫ٔ ﺳﺎس اﻟﻜﻔﺎءة‪.‬‬ ‫ﻗﺪم اﻟﻤﺴﺎواة اﻟﺘﺎﻣﺔ ﻠﺠﻤﯿﻊ و‬ ‫اﻟﻘﺒﻮل ﻠﺘﻌﻠﲓ اﻟﻌﺎﱄ‬
‫‪ ‬ﳚﺐ ٔ ) ‪2‬ن (ﲥﺪف اﻟﱰﺑﯿﺔ ا ٕﱃ ا ٕ ﳕﺎء ﴯﺼﯿﺔ اﻻ ٕ ﺴﺎن ا ٕ ﳕﺎء ﰷﻣﻼ ً ‪ ،‬وا ٕﱃ ﺗﻌﺰ اﺣﱰام اﻻ ٕ ﺴﺎن‬
‫ٔ ﺳﺎﺳ ﺔ وﺗﻨﻤﯿﺔ اﻟﺘﻔﺎﱒ واﻟ ﺴﺎ واﻟﺼﺪاﻗﺔ ﺑﲔ ﲨﯿﻊ اﻟﺸﻌﻮب واﳉﻤﺎﻋﺎت اﻟﻌﻨﴫﯾﺔ‬ ‫واﳊﺮ ت ا‬
‫ٔ ﱈ اﻟﻤﺘﺤﺪة ﳊﻔﻆ اﻟﺴﻼم‪.‬‬ ‫ٔ و اﻟﺪﯾ ﯿﺔ‪ ،‬وا ٕﱃ ز دة ﳎﻬﻮد ا‬
‫ﺧﺘﯿﺎر ع ﺑﯿﺔ ٔ وﻻدﱒ‪.‬‬
‫ٔ ول ﰲ ا‬ ‫) ٓ‪ ( 3‬ء اﳊﻖ ا‬ ‫‪‬‬

‫‪52‬‬
‫‪.‬اﻟﻤﺎدة ‪27‬‬

‫اﳊﻖ ﰲ ٔ ن ﺸﱰك اﺷﱰاﰷ ً ﺣﺮا ً ﰲ ﺣﯿﺎة اﻟﻤﺠﺘﻤﻊ اﻟﺜﻘﺎﰲ وﰲ اﻻﺳ ﻤﺘﺎع ﻟﻔﻨﻮن‬
‫‪‬ﻟﲁ ﻓﺮد ) ‪( 1‬‬
‫ﻧﺘﺎﲗﻪ‪.‬‬ ‫واﻟﻤﺴﺎﳘﺔ ﰲ اﻟﺘﻘﺪم اﻟﻌﻠﻤﻲ واﻻﺳ ﻔﺎدة‬
‫ٔ دﰊ‬ ‫اﻟﻌﻠﻤﻲ‬
‫ا ٕﻧﺘﺎﺟﻪ ٔ و ا‬ ‫ٔ دﺑﯿﺔ واﻟﻤﺎدﯾﺔ اﻟﻤﱰﺗﺒﺔ‬ ‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ ﲪﺎﯾﺔ اﻟﻤﺼﺎﱀ ا‬
‫)‪(2‬‬ ‫‪‬‬

‫ٔ و اﻟﻔﲏ‪.‬‬

‫‪.‬اﻟﻤﺎدة ‪28‬‬

‫دوﱄ ﺗﺘﺤﻘﻖ ﲟﻘﺘﻀﺎﻩ اﳊﻘﻮق واﳊﺮ ت اﻟﻤﻨﺼﻮص‬ ‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ اﻟﺘﻤﺘﻊ ﺑﻨﻈﺎم اﺟ‬ ‫‪‬‬

‫ﻣﺎ‪.‬‬ ‫ﻋﻠﳱﺎ ﰲ ﻫﺬا اﻻ ٕ ﻋﻼن ﲢﻘﻘﺎ ً‬

‫‪.‬اﻟﻤﺎدة ‪29‬‬

‫ﻓﺮد( واﺟﺒﺎت ﳓﻮ اﻟﻤﺠﺘﻤﻊ اﻟﺬي ﯾﺘﺎح ﻓﯿﻪ وﺣﺪﻩ ﻟﺸﺨﺼﯿﺘﻪ ٔ ن ﺗﻨﻤﻮ ﳕﻮا ً ﺣﺮا ُ‬
‫ﰻ )‪1‬‬ ‫‪‬‬

‫ﰷﻣﻼ ً ‪.‬‬
‫) ‪ ( 2‬ﳜﻀﻊ اﻟﻔﺮد ﰲ ﳑﺎرﺳﺔ ﺣﻘﻮﻗﻪ وﺣﺮ ﺗﻪ ﻟﺘﻠﻚ اﻟﻘﯿﻮد اﻟﱵ ﯾﻘﺮرﻫﺎ اﻟﻘﺎ ن ﻓﻘﻂ‪ ،‬ﻟﻀﻤﺎن‬ ‫‪‬‬

‫اﻻﻋﱰاف ﲝﻘﻮق اﻟﻐﲑ وﺣﺮ ﺗﻪ واﺣﱰاﻣﻬﺎ وﻟﺘﺤﻘﯿﻖ اﻟﻤﻘﺘﻀﯿﺎت اﻟﻌﺎدﻟﺔ ﻠﻨﻈﺎم اﻟﻌﺎم واﻟﻤﺼﻠﺤﺔ‬
‫ٔ ﺧﻼق ﰲ ﳎﺘﻤﻊ دﳝﻘﺮا ‪.‬‬ ‫اﻟﻌﺎﻣﺔ وا‬
‫ٔﱈ‬ ‫ﻣﻊ ٔ ﻏﺮاض ا‬
‫ﻗﺾ ﻨﺎ‬
‫ٔ ﺣﻮال ٔ ن ﲤﺎرس ﻫﺬﻩ اﳊﻘﻮق ﳑﺎرﺳﺔ ﺗ‬ ‫ا‬ ‫ﯾﺼﺢ ﲝﺎل‬
‫ﻻ )‪(3‬‬ ‫‪‬‬

‫اﻟﻤﺘﺤﺪة وﻣﺒﺎدﲛﺎ‪.‬‬

‫‪53‬‬
 5
PREAMBLE
Whereas recognition of the inherent
dignity and of the equal and inalienable
rights of all members of the human
family is the foundation of freedom,
justice and peace in the world,
Whereas disregard and contempt for
human rights have resulted in barbarous
acts which have outraged the
conscience of mankind, and the advent
of a world in which human beings shall
enjoy freedom of speech and belief and

30 ‫اﻟﻤﺎدة‬.

‫ٔ ﻧﻪ ﳜﻮل ﻟﺪوﻟﺔ ٔ و ﲨﺎﻋﺔ ٔ و ﻓﺮد ٔ ي ﺣﻖ ﰲ اﻟﻘﯿﺎم‬ ‫ﻫﺬا اﻻ ٕﻋﻼن ﻧﺺ ﳚﻮز ﺗ ٔ وﯾﻠﻪ‬‫ﻟ ﺲ ﰲ‬

.‫ﺑ ﺸﺎط ٔ و ﺗ ٔ دﯾﺔ ﲻﻞ ﳞﺪف ا ٕﱃ ﻫﺪم اﳊﻘﻮق واﳊﺮ ت اﻟﻮاردة ﻓﯿﻪ‬

5
<http://www.un.org/ar/documents/udhr/> visited on 3 June
2012.

54
freedom from fear and want has been
proclaimed as the highest aspiration of
the common people,
Whereas it is essential, if man is not to
be compelled to have recourse, as a last
resort, to rebellion against tyranny and
oppression, that human rights should be
protected by the rule of law,
Whereas it is essential to promote the
development of friendly relations
between nations,
Whereas the peoples of the United
Nations have in the Charter reaffirmed
their faith in fundamental human rights,
in the dignity and worth of the human
person and in the equal rights of men
and women and have determined to
promote social progress and better
standards of life in larger freedom,

55
Whereas Member States have pledged
themselves to achieve, in co-operation
with the United Nations, the promotion
of universal respect for and observance
of human rights and fundamental
freedoms,
Whereas a common understanding of
these rights and freedoms is of the
greatest importance for the full
realization of this pledge,
Now, Therefore THE GENERAL
ASSEMBLY proclaims THIS
UNIVERSAL DECLARATION OF
HUMAN RIGHTS as a common
standard of achievement for all peoples
and all nations, to the end that every
individual and every organ of society,
keeping this Declaration constantly in
mind, shall strive by teaching and
education to promote respect for these

56
 rights and freedoms and by progressive
measures, national and international, to
secure their universal and effective
recognition and observance, both
among the peoples of Member States
themselves and among the peoples of
territories under their jurisdiction.

Article 1.
 All human beings are born free and
equal in dignity and rights.They are
endowed with reason and conscience
and should act towards one another in
a spirit of brotherhood.
Article 2.
 Everyone is entitled to all the rights
and freedoms set forth in this
Declaration, without distinction of any
kind, such as race, colour, sex,
57
 language, religion, political or other
opinion, national or social origin,
property, birth or other status.
Furthermore, no distinction shall be
made on the basis of the political,
jurisdictional or international status of
the country or territory to which a
person belongs, whether it be
independent, trust, non-self-governing
or under any other limitation of
sovereignty.
Article 3.
 Everyone has the right to life, liberty
and security of person.

Article 4.
 No one shall be held in slavery or
servitude; slavery and the slave trade
shall be prohibited in all their forms.
58
 Article 5.
 No one shall be subjected to torture
or to cruel, inhuman or degrading
treatment or punishment.
Article 6.
 Everyone has the right to
recognition everywhere as a person
before the law.
Article 7.
 All are equal before the law and are
entitled without any discrimination to
equal protection of the law. All are
entitled to equal protection against any
discrimination in violation of this
Declaration and against any incitement
to such discrimination.

59
 Article 8.
 Everyone has the right to an
effective remedy by the competent
national tribunals for acts violating the
fundamental rights granted him by the
constitution or by law.
Article 9.
 No one shall be subjected to
arbitrary arrest, detention or exile.
Article 10.
 Everyone is entitled in full equality
to a fair and public hearing by an
independent and impartial tribunal, in
the determination of his rights and
obligations and of any criminal charge
against him.

60
 Article 11.
 (1) Everyone charged with a penal
offence has the right to be presumed
innocent until proved guilty according
to law in a public trial at which he has
had all the guarantees necessary for
his defence.
(2) No one shall be held guilty of any
penal offence on account of any act or
omission which did not constitute a
penal offence, under national or
international law, at the time when it was
committed. Nor shall a heavier penalty
be imposed than the one that was
applicable at the time the penal offence
was committed.
Article 12.
 No one shall be subjected to
arbitrary interference with his privacy,
family, home or correspondence, nor
61
 to attacks upon his honour and
reputation. Everyone has the right to
the protection of the law against such
interference or attacks.
Article 13.
 (1) Everyone has the right to
freedom of movement and residence
within the borders of each state.
 (2) Everyone has the right to leave
any country, including his own, and to
return to his country.
Article 14.
 (1) Everyone has the right to seek
and to enjoy in other countries asylum
from persecution.
 (2) This right may not be invoked in
the case of prosecutions genuinely
arising from non-political crimes or

62
 from acts contrary to the purposes and
principles of the United Nations.
Article 15.
 (1) Everyone has the right to a
nationality.
 (2) No one shall be arbitrarily
deprived of his nationality nor denied
the right to change his nationality.
Article 16.
 (1) Men and women of full age,
without any limitation due to race,
nationality or religion, have the right to
marry and to found a family. They are
entitled to equal rights as to marriage,
during marriage and at its dissolution.
 (2) Marriage shall be entered into
only with the free and full consent of
the intending spouses.

63
 (3) The family is the natural and
fundamental group unit of society and
is entitled to protection by society and
the State.
Article 17.
 (1) Everyone has the right to own
property alone as well as in
association with others.
 (2) No one shall be arbitrarily
deprived of his property.
Article 18.
 Everyone has the right to freedom
of thought, conscience and religion;
this right includes freedom to change
his religion or belief, and freedom,
either alone or in community with
others and in public or private, to
manifest his religion or belief in

64
 teaching, practice, worship and
observance.
Article 19.
 Everyone has the right to freedom
of opinion and expression; this right
includes freedom to hold opinions
without interference and to seek,
receive and impart information and
ideas through any media and
regardless of frontiers.
Article 20.
 (1) Everyone has the right to
freedom of peaceful assembly and
association.
 (2) No one may be compelled to
belong to an association.

65
 Article 21.
 (1) Everyone has the right to take
part in the government of his country,
directly or through freely chosen
representatives.
 (2) Everyone has the right of equal
access to public service in his country.
 (3) The will of the people shall be
the basis of the authority of
government; this will shall be
expressed in periodic and genuine
elections which shall be by universal
and equal suffrage and shall be held
by secret vote or by equivalent free
voting procedures.
Article 22.
 Everyone, as a member of society,
has the right to social security and is
entitled to realization, through national
effort and international co-operation
66
 and in accordance with the
organization and resources of each
State, of the economic, social and
cultural rights indispensable for his
dignity and the free development of his
personality.
Article 23.
 (1) Everyone has the right to work,
to free choice of employment, to just
and favourable conditions of work and
to protection against unemployment.
 (2) Everyone, without any
discrimination, has the right to equal
pay for equal work.
 (3) Everyone who works has the
right to just and favourable
remuneration ensuring for himself and
his family an existence worthy of
human dignity, and supplemented, if

67
 necessary, by other means of social
protection.
 (4) Everyone has the right to form
and to join trade unions for the
protection of his interests.
Article 24.
 Everyone has the right to rest and
leisure, including reasonable limitation
of working hours and periodic holidays
with pay.
Article 25.
 (1) Everyone has the right to a
standard of living adequate for the
health and well-being of himself and of
his family, including food, clothing,
housing and medical care and
necessary social services, and the
right to security in the event of
unemployment, sickness, disability,
68
 widowhood, old age or other lack of
livelihood in circumstances beyond his
control.
 (2) Motherhood and childhood are
entitled to special care and assistance.
All children, whether born in or out of
wedlock, shall enjoy the same social
protection.
Article 26.
 (1) Everyone has the right to
education. Education shall be free, at
least in the elementary and
fundamental stages. Elementary
education shall be compulsory.
Technical and professional education
shall be made generally available and
higher education shall be equally
accessible to all on the basis of merit.
 (2) Education shall be directed to
the full development of the human
69
 personality and to the strengthening of
respect for human rights and
fundamental freedoms. It shall
promote understanding, tolerance and
friendship among all nations, racial or
religious groups, and shall further the
activities of the United Nations for the
maintenance of peace.
 (3) Parents have a prior right to
choose the kind of education that shall
be given to their children.
Article 27.
 (1) Everyone has the right freely to
participate in the cultural life of the
community, to enjoy the arts and to
share in scientific advancement and its
benefits.
 (2) Everyone has the right to the
protection of the moral and material
interests resulting from any scientific,
70
 literary or artistic production of which
he is the author.
Article 28.
 Everyone is entitled to a social and
international order in which the rights
and freedoms set forth in this
Declaration can be fully realized.
Article 29.
 (1) Everyone has duties to the
community in which alone the free and
full development of his personality is
possible.
 (2) In the exercise of his rights and
freedoms, everyone shall be subject
only to such limitations as are
determined by law solely for the
purpose of securing due recognition
and respect for the rights and
freedoms of others and of meeting the
71
 just requirements of morality, public
order and the general welfare in a
democratic society.
 (3) These rights and freedoms may
in no case be exercised contrary to the
purposes and principles of the United
Nations.
Article 30.
 Nothing in this Declaration may be
interpreted as implying for any State,
group or person any right to engage in
any activity or to perform any act
aimed at the destruction of any of the
rights and freedoms set forth herein.

72
 CAIRO DECLARATION
ON
HUMAN RIGHTS IN ISLAM6

The Nineteenth Islamic Conference of

Foreign Ministers (Session of Peace,
Interdependence and Development), held in
Cairo, Arab Republic of Egypt, from 9-14
Muharram 1411H (31 July to 5 August
1990),

6
Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th
Sess., Agenda Item 5, U.N. Doc. A/CONF.157/PC/62/Add.18
(1993) [English translation].
http://www1.umn.edu/humanrts/instree/cairodeclaration.html
See also

<http://www.unhcr.org/refworld/publisher,ARAB,,,3ae6b3822c
,0.html> visited 3 June 2012.

73
Keenly aware of the place of mankind in
Islam as vicegerent of Allah on Earth;
Recognizing the importance of issuing a
Document on Human Rights in Islam that
will serve as a guide for Member states in all
aspects of life;
Having examined the stages through which
the preparation of this draft Document has
so far, passed and the relevant report of the
Secretary General;
Having examined the Report of the Meeting
of the Committee of Legal Experts held in
Tehran from 26 to 28 December, 1989;
Agrees to issue the Cairo Declaration on
Human Rights in Islam that will serve as a
general guidance for Member States in the
Field of human rights.
Reaffirming the civilizing and historical role
of the Islamic Ummah which Allah made as
74
the best community and which gave
humanity a universal and well-balanced
civilization, in which harmony is established
between hereunder and the hereafter,
knowledge is combined with faith, and to
fulfill the expectations from this community
to guide all humanity which is confused
because of different and conflicting beliefs
and ideologies and to provide solutions for
all chronic problems of this materialistic
civilization.
In contribution to the efforts of mankind to
assert human rights, to protect man from
exploitation and persecution, and to affirm
his freedom and right to a dignified life in
accordance with the Islamic Shari'ah.
Convinced that mankind which has reached
an advanced stage in materialistic science is
still, and shall remain, in dire need of faith

75
to support its civilization as well as a self
motivating force to guard its rights;
Believing that fundamental rights and
freedoms according to Islam are an integral
part of the Islamic religion and that no one
shall have the right as a matter of principle
to abolish them either in whole or in part or
to violate or ignore them in as much as they
are binding divine commands, which are
contained in the Revealed Books of Allah
and which were sent through the last of His
Prophets to complete the preceding divine
messages and that safeguarding those
fundamental rights and freedoms is an act of
worship whereas the neglect or violation
thereof is an abominable sin, and that the
safeguarding of those fundamental rights
and freedom is an individual responsibility
of every person and a collective
responsibility of the entire Ummah;

76
Do hereby and on the basis of the above-
mentioned principles declare as follows:

ARTICLE 1:
(a) All human beings form one family
whose members are united by their
subordination to Allah and descent from
Adam. All men are equal in terms of basic
human dignity and basic obligations and
responsibilities, without any discrimination
on the basis of race, colour, language, belief,
sex, religion, political affiliation, social
status or other considerations. The true
religion is the guarantee for enhancing such
dignity along the path to human integrity.
(b) All human beings are Allah's subjects,
and the most loved by Him are those who
are most beneficial to His subjects, and no
one has superiority over another except on
the basis of piety and good deeds.
77
ARTICLE 2:
(a) Life is a God-given gift and the right to
life is guaranteed to every human being. It is
the duty of individuals, societies and states
to safeguard this right against any violation,
and it is prohibited to take away life except
for a shari'ah prescribed reason.
(b) It is forbidden to resort to any means
which could result in the genocidal
annihilation of mankind.
(c) The preservation of human life
throughout the term of time willed by Allah
is a duty prescribed by Shari'ah.
(d) Safety from bodily harm is a guaranteed
right. It is the duty of the state to safeguard
it, and it is prohibited to breach it without a
Shari'ah-prescribed reason.

78
ARTICLE 3:
(a) In the event of the use of force and in
case of armed conflict, it is not permissible
to kill non-belligerents such as old men,
women and children. The wounded and the
sick shall have the right to medical
treatment; and prisoners of war shall have
the right to be fed, sheltered and clothed. It
is prohibited to mutilate or dismember dead
bodies. It is required to exchange prisoners
of war and to arrange visits or reunions of
families separated by circumstances of war.
(b) It is prohibited to cut down trees, to
destroy crops or livestock, to destroy the
enemy's civilian buildings and installations
by shelling, blasting or any other means.

ARTICLE 4:
79
Every human being is entitled to human
sanctity and the protection of one's good
name and honour during one's life and after
one's death. The state and the society shall
protect one's body and burial place from
desecration.

ARTICLE 5:
(a) The family is the foundation of society,
and marriage is the basis of making a
family. Men and women have the right to
marriage, and no restrictions stemming from
race, colour or nationality shall prevent them
from exercising this right.
(b) The society and the State shall remove
all obstacles to marriage and facilitate it, and
shall protect the family and safeguard its
welfare.

80
ARTICLE 6:
(a) Woman is equal to man in human
dignity, and has her own rights to enjoy as
well as duties to perform, and has her own
civil entity and financial independence, and
the right to retain her name and lineage.
(b) The husband is responsible for the
maintenance and welfare of the family.

ARTICLE 7:
(a) As of the moment of birth, every child
has rights due from the parents, the society
and the state to be accorded proper nursing,
education and material, hygienic and moral
care. Both the fetus and the mother must be
safeguarded and accorded special care.

81
(b) Parents and those in such like capacity
have the right to choose the type of
education they desire for their children,
provided they take into consideration the
interest and future of the children in
accordance with ethical values and the
principles of the Shari'ah.
(c) Both parents are entitled to certain rights
from their children, and relatives are entitled
to rights from their kin, in accordance with
the tenets of the shari'ah.

ARTCLE 8:
Every human being has the right to enjoy a
legitimate eligibility with all its prerogatives
and obligations in case such eligibility is lost
or impaired, the person shall have the right
to be represented by his/her guardian.
ARTICLE 9:
82
(a) The seeking of knowledge is an
obligation and provision of education is the
duty of the society and the State. The State
shall ensure the availability of ways and
means to acquire education and shall
guarantee its diversity in the interest of the
society so as to enable man to be acquainted
with the religion of Islam and uncover the
secrets of the Universe for the benefit of
mankind.
(b) Every human being has a right to receive
both religious and worldly education from
the various institutions of teaching,
education and guidance, including the
family, the school, the university, the media,
etc., and in such an integrated and balanced
manner that would develop human
personality, strengthen man's faith in Allah
and promote man's respect to and defence of
both rights and obligations.

83
ARTICLE 10:
Islam is the religion of true unspoiled nature.
It is prohibited to exercise any form of
pressure on man or to exploit his poverty or
ignorance in order to force him to change his
religion to another religion or to atheism.

ARTICLE 11:
(a) Human beings are born free, and no one
has the right to enslave, humiliate, oppress
or exploit them, and there can be no
subjugation but to Allah the Almighty.
(b) Colonialism of all types being one of the
most evil forms of enslavement is totally
prohibited. Peoples suffering from
colonialism have the full right to freedom
and self-determination. It is the duty of all

84
States peoples to support the struggle of
colonized peoples for the liquidation of all
forms of and occupation, and all States and
peoples have the right to preserve their
independent identity and econtrol over their
wealth and natural resources.

ARTICLE 12:

Every man shall have the right, within the

framework of the Shari'ah, to free movement
and to select his place of residence whether
within or outside his country and if
persecuted, is entitled to seek asylum in
another country. The country of refuge shall
be obliged to provide protection to the
asylum-seeker until his safety has been
attained, unless asylum is motivated by
committing an act regarded by the Shari'ah
as a crime.
85
ARTICLE 13:
Work is a right guaranteed by the State and
the Society for each person with capability
to work. Everyone shall be free to choose
the work that suits him best and which
serves his interests as well as those of the
society. The employee shall have the right to
enjoy safety and security as well as all other
social guarantees. He may not be assigned
work beyond his capacity nor shall he be
subjected to compulsion or exploited or
harmed in any way. He shall be entitled -
without any discrimination between males
and females - to fair wages for his work
without delay, as well as to the holidays
allowances and promotions which he
deserves. On his part, he shall be required to
be dedicated and meticulous in his work.
Should workers and employers disagree on
86
any matter, the State shall intervene to settle
the dispute and have the grievances
redressed, the rights confirmed and justice
enforced without bias.

ARTICLE 14:
Everyone shall have the right to earn a
legitimate living without monopolization,
deceit or causing harm to oneself or to
others. Usury (riba) is explicitly prohibited.

ARTICLE 15:
(a) Everyone shall have the right to own
property acquired in a legitimate way, and
shall be entitled to the rights of ownership
without prejudice to oneself, others or the
society in general. Expropriation is not
permissible except for requirements of
87
public interest and upon payment of prompt
and fair compensation.
(b) Confiscation and seizure of property is
prohibited except for a necessity dictated by
law.

ARTICLE 16:
Everyone shall have the right to enjoy the
fruits of his scientific, literary, artistic or
technical labour of which he is the author;
and he shall have the right to the protection
of his moral and material interests stemming
therefrom, provided it is not contrary to the
principles of the Shari'ah.

ARTICLE 17:

88
(a) Everyone shall have the right to live in a
clean environment, away from vice and
moral corruption, that would favour a
healthy ethical development of his person
and it is incumbent upon the State and
society in general to afford that right.
(b) Everyone shall have the right to medical
and social care, and to all public amenities
provided by society and the State within the
limits of their available resources.
(c) The States shall ensure the right of the
individual to a decent living that may enable
him to meet his requirements and those of
his dependents, including food, clothing,
housing, education, medical care and all
other basic needs.

ARTICLE 18:

89
(a) Everyone shall have the right to live in
security for himself, his religion, his
dependents, his honour and his property.
(b) Everyone shall have the right to privacy
in the conduct of his private affairs, in his
home, among his family, with regard to his
property and his relationships. It is not
permitted to spy on him, to place him under
surveillance or to besmirch his good name.
The State shall protect him from arbitrary
interference.
(c) A private residence is inviolable in all
cases. It will not be entered without
permission from its inhabitants or in any
unlawful manner, nor shall it be demolished
or confiscated and its dwellers evicted.

ARTICLE 19:

90
(a) All individuals are equal before the law,
without distinction between the ruler and the
ruled.
(b) The right to resort to justice is
guaranteed to everyone.
(c) Liability is in essence personal.
(d) There shall be no crime or punishment
except as provided for in the Shari'ah.
(e) A defendant is innocent until his guilt is
proven in a fast trial in which he shall be
given all the guarantees of defence.

ARTICLE 20:
It is not permitted without legitimate reason
to arrest an individual, or restrict his
freedom, to exile or to punish him. It is not
permitted to subject him to physical or
psychological torture or to any form of
91
maltreatment, cruelty or indignity. Nor is it
permitted to subject an individual to medical
or scientific experiments without hisconsent
or at the risk of his health or of his life. Nor
is it permitted to promulgate emergency
laws that would provide executive authority
for such actions.

ARTICLE 21:
Taking hostages under any form or for any
purpose is expressly forbidden.

ARTICLE 22:
(a) Everyone shall have the right to express
his opinion freely in such manner as would
not be contrary to the principles of the
Shari'ah.

92
1.. Everyone shall have the right to advocate
what is right, and propagate what is good,
and warn against what is wrong and evil
according to the norms of Islamic Shari'ah.
(c) Information is a vital necessity to
society. It may not be exploited or misused
in such a way as may violate sanctities and
the dignity of Prophets, undermine moral
and ethical Values or disintegrate, corrupt or
harm society or weaken its faith.
(d) It is not permitted to excite nationalistic
or doctrinal hatred or to do anything that
may be an incitement to any form or racial
discrimination.

ARTICLE 23:
(a) Authority is a trust; and abuse or
malicious exploitation thereof is explicitly

93
prohibited, in order to guarantee
fundamental human rights.
(b) Everyone shall have the right to
participate, directly or indirectly in the
administration of his country's public affairs.
He shall also have the right to assume public
office in accordance with the provisions of
Shari'ah.

ARTICLE 24:
All the rights and freedoms stipulated in this
Declaration are subject to the Islamic
Shari'ah.

ARTICLE 25:
The Islamic Shari'ah is the only source of
reference for the explanation or clarification
of any of the articles of this Declaration.

94
 Charter of Islamic Court of Justice
Downloaded from the website of the
Organization of Islamic Conference7

7
<http://www.oic-
oci.org/english/convenion/1987/statute_of_the_international_
islamic_court_of_justice_en.pdf> visited 3 June 2012.

95
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118
 HUMAN RIGHTS AND SUPREME
COURT OF PAKISTAN

P L D 1992 Supreme Court 385

Present: Muhammad Afzal Zullah, CJ.

Abdtd Qadeer Chaudhry and Wali Muhammad Khan, JJ

Mst. INAYAT BIBI through Legal Heirs---Appellant

versus

1SSAC NAZIR. ULLAH and 2 others---Respondents

Civil Appeal No.596 of 1988, decided on 2nd April, 1992.

(On appeal from the judgment, dated 25-11-1980 of the Lahore

High Court, Lahore, in Writ Petition No.235 of 1979).

(a) Succession Act (XXXIX of 1925)---

119
 ----S. 29---Customary succession, so far as Christians were
concerned, was altered by Succession Act, 1925 which also abolished
customary law in Punjab for the Christians.

Kamawati v. Digbijai Singh AIR 1922 PC 14; Sohan Lal v.

A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v.
Raja Ram 12 PR 1892; Abdul Karim and others v. Sahib Jan 5 P.R.
1908; Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR
1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn. p.28 and Haji
Nizam Khan v. Additional District Judge, Lyallpur and others P L D
1976 Lah. 930 ref.

(b) Succession Act (XXXIX of 1925)---

----S. 29---Christian female was allowed to inherit in presence

of the male heirs---Succession Act, 1925, by statutory dispensation
having determined the mode of succession when a Christian male died
neither the custom nor any other law would be applicable.

Kamawati v. Digbijai Singh AIR 1922 PC 14; Sohan Lal v.

A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v.
Raja Ram 12 PR 1892; Abdul Karim and others v. Sahib Jan 5 PR
1908; Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR
1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn., p.28 and Haji
Nizam Khan v. Additional District Judge, Lyallpur and others PLD
1976 Lah. 930 ref.

(c) Constitution of Pakistan (1973)---

----Art. 184(3)---Original special jurisdiction of Supreme

Conrt---Case involved important questions of law of public
importance; it related to the Fundamental Rights of property being
claimed by females who were members of minority community who in
Pakistan and Islam were additionally protected---Supreme Court,

120
while considering the case to be amply fit for exercise of the power to
do complete justice, treated the case covered by the original
jurisdiction of Supreme Court under Art.184(3) of the Constitution
which could be invoked for the enforcement of fundamental rights.

M. Munir Peracha, Advocate Supreme Court and Ch. Akhtar

Ali, Advocate-on-Record for Appellant.

M.L. Shahani, Advocate Supreme Court and MA. Siddiqui,

Advocateon-Record for Respondents Nos.l and 2.

Nemo for the Remaining Respondent.

. Date of hearing: 16th December, 1991.

JUDGMENT

MUHAMMAp AFZAL ZULLAH, CJ. ---In this case of

succession to property left by a Christian male, last holder, leave to
appeal was ganted on a contest between the widow and two daughters
on the one side and a son and his nephew on the other. Following
points were noted for examination:-

"(a) Whether, as pleaded from the- petitioners' side in the

High Court, the Succession Act 1925 would not govern this
case?

(b) Whether Punjab Laws Act, 1872 could not. be applied

to the present case?

121
 (c) Whether the rule of customary law applied against the
petitioners depriving these females of inheritance is not contrary to
justice, equity and good conscience as understood in the Pakistani
jurisprudential context?

(d) Whether the said rule of custom is also opposed to

justice, equity and good conscience as understood in the Christian
community?

(e) If the said rule is not opposed to justice, equity and

good conscience as understood in Christian community, but is opposed
to justice, equity and good conscience as understood in Pakistani
Jurisprudential Context; whether the former or the latter consideration
would prevail in interpreting section 5 of the Punjab Laws Act, 1872
(in case it is applicable) which reads as follows:-

S.5: --In questions regarding succession, special property of

females, betrothal, marriage, divorce, dower, adoption, guardianship,
minority, bastardy, family relations, wills, legacies, gifts, partitions, or
any religious usage or institution the rule of decision shall be-

(a) any custom applicable to the parties concerned which is

not contrary to justice, equity or good conscience and has not been by
this or any other enactment altered or abolished and has not been
declared-to be void by any competent authority;

(b) the Muhammadan law, in cases where the parties are

Muhammadans, and the Hindu law, in cases where the parties are
Hindus, except in so far as such law has been altered or abolished by
legislative enactment, or is opposed to the provisions of this Act, or
has been modified by any such custom as is above referred to)."

122
 The case having been decided by the Revenue Authorities in
the mutation proceedings the present appellants (the females) without
filing a civil suit, invoked Constitutional (Writ) jurisdiction of the
'High Court but without any success. It was held by the High Court
that according to section 5 of the Punjab Laws Act, 1872 the question
involved being one of succession covered thereunder, custom of
succession would be applicable to the parties concerned if it is not
contrary to justice, equity or good conscience. And further that it
(custom) has not been altered or abolished by any enactment nor
declared void by any competent authority. The argument that section
29 of the Succession Act, 1925 has altered/abolished the Customary
Law for Christians and that specific mode of succession with
determined shares as provided in the Succession Act, would cover this
case, was repelled. A Privy Council judgment in the case of Kamawati
v. Digbijai Singh A 1 R 1922 PC 14 which clearly supported the
appellant's case was held as inapplicable and distinguishable because it
was considered that there was no law parallel to section 5 of the
Punjab Laws Act, 1872 in the Province of India from which the said
case had arisen. Two Lahore cases: Sohan Lal v. A.Z. Makuin and
another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 PR
1892 and Abdul Karim and others v. Sahib Jan 5 PR 1908 were also
referred.

The controversy in this case has at this stage been considerably

narrowed down. The case before the Privy Council had arisen as is
mentioned in report itself from the judgment in the North West
Provinces Court, at Allahabad. It is not denied that the area was then
known as "North-West Province". The "North-West Frontier
Province" of course is a different Province and the learned Judges in
the High Court might have been misled to believe that the said case
was from the N.-W.F.P. which is in Pakistan, while, as stated above, it
was an Allahabad case having arisen in the then North-West
Provinces. We have checked it from a 1940 Allahabad case involving
the interpretation of the same provisions of the Succession Act (Ranbir
Karam Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134).
And it is interesting to know that the same provision of the Punjab Act
of 1872 was discussed and the Lahore case-law was relied upon as is
involved in the present appeal. Further research was made during the
hearing of this appeal. A comparative chart, of the relevant
comparable laws in almost all the provinces of India showing similar
provisions as are contained in section 5 of the Punjab Laws Act, 1872,
has been found opposite to page 28 of the "Muhammadan Law by
Tyabji, 3rd Edition". In the column relating to Oudh, Punjab, North-
West Frontier, Ajmer-Merwara several laws are mentioned including

123
Punjab Laws Act IV of 1872. with specific mention of section 5 (as
amended by Act XII of 1878). North-West Frontier Laws Regulations
VII, 1901 and the Laws of Ajmer-Merwara are also mentioned. In the
column relating to Bengal, NorthWest Provinces and Assam Act XII
of 1887 with its section 37 has clearly been mentioned as also some
Bengal and Assam Laws.

In view of the aforenoted material and other circumstantial

support from several decided cases it is clear that almost throughout
India prior to 1947 similar laws had been enacted which applied
custom, if not altered or abolished by any Statute Law. In addition to
what has been stated above similar exercise was made in the well
known Lahore case of Haji Nizam Khan v. Additional District Judge,
Lyallpur and others P L D 1976 Lah. 930 with the result that parallel
laws were found in several Provinces of India.

Learned counsel for the appellants obviously armed with this

new found legal position in the North West Provinces (Allahabad)
from where the Privy Council case of Kamawati had arisen heavily
relied upon it and argued that the main distinguishing features
mentioned in the Lahore High Court judgment not being available, the
writ petition in the High Court merited to be accepted. He also
analysed section 29 of the Succession Act and other related provisions
which specify also the shares under the said Act and argued that the
Custom in Punjab having been abolished by the Succession Act for the
parties herein, was no more applicable and hence the appellants are
entitled to the shares in accordance with the Succession Act.

Learned counsel for the respondents, however, for considerable

time during the arguments insisted that there was no law comparable
to section 5 of the Punjab Laws Act in the local area from which the
Privy Council case had arisen. When subsequently faced with the
abovenoted material, he could not press this point any further and at
one stage also agreed that if there was such law applicable in the said
local area, the Privy Council judgment could not be held to be
distinguishable. As we had not announced the order and had reserved
the judgment, the learned counsel was permitted to advance arguments
even on the assumption that the ratio of the Privy Council judgment
was not attracted to the present case -- it being distinguishable as held
in the impugned judgment.

124
 He then read and relied on some verses from the Holy Taurat
and contended that the Personal Law of the Christians did not permit a
sister or a widow to inherit in presence or alongwith male child or
other male descendants. The reading by the learned counsel himself,
undoubtedly shows, that if there is no male child a daughter would
definitely get a specific share. He, however, remained unable to rely
upon any other verse dealing with the male and female; namely, when
the deceased leaves his son and a daughter. His inferential argument,
however, was that vice versa was not mentioned; namely, that in
presence of his son the daughter would inherit. Because as he argued it
was "very obvious". May be with the further study of this subject more
light can be thrown on the Christian Law of inheritance. But it is not
necessary for us to do so in view of the two conclusions, we have
reached as a result of the foregoing discussion.

One, that the Succession Act did alter the customary

succession in so far as Christians are concerned; and also for them it
abolished customary law in Punjab, therefore, the same would not be
applicable.

Secondly, that the Privy Council judgment in the present case

is fully attracted. Even if we are not otherwise bound to accept the
Privy Council view today as binding on this Court; yet there is nothing
therein not to commend itself as a correctly laid down legal
proposition. The Christian females, similarly as in the present case,
were allowed to inherit in presence of the male heirs. It is thus a case
of the application of the Succession Act, which by statutory
dispensation having determined the mode of succession when a
Christian male dies, neither the question of custom nor any other law
relied upon by the learned counsel, would be applicable.

Before closing this judgment it needs to be mentioned that the

learned counsel for the respondents vehemently opposed this appeal
on two technical grounds as well. One, that the consistent law laid
down by the superior Courts in Pakistan being that no writ lies against
an order of mutation, in this matter the High Court, in any case, could
not have interfered. And secondly, that the appellants having
deliberately allowed their appeal before the Revenue Authority to be

125
dismissed for non-prosecution, (as it was otherwise timebarred)
neither sought its restoration nor challenged the order of dismissal for
non-prosecution, therefore, no writ was competent.

There is some force in any one of the objections raised by the

learned counsel but it cannot be said that there is no distinguishing
feature in this case, vis-a-vis, the nature of the proceedings before the
authorities concerned or with respect to the peculiar dismissal for non-
prosecution.

However, (i), it being a case involving important questions of

law and that also of public importance; and (ii), further it related to the
fundamental right of property; and that too (iii), being claimed by
females; and above all (iv), they are members of minority community;
who (v), in Pakistan and Islam are additionally protected; we told the
learned counsel that (vi), we treat this case covered also by the original
special jurisdiction of this Court under Article 184(3) of the
Constitution; which can be invoked for the enforcement of
fundamental rights. In addition, (vii), we considered it an amply fit
case for exercise of the power of the Supreme Court to do complete
justice. For all these reasons the objections stood overruled.

In the light of the foregoing discussion this appeal is allowed

and the impugned orders and judgments are set aside. The appellants
shall be treated as lawful heirs of the deceased Rehmat Masih. Thus,
as the lawful heirs of Rehmat Masih, alongwith respondents they shall
also inherit.

This decision and declaration shall be given due effect -by all
concerned. It may be added that the learned counsel for the appellants
has submitted a certificate showing the particulars of the heirs who
would inherit. The authorities concerned shall after due verification of
the assertion and statement made from the appellants' side in the said
certificate, shall allot and allocate the shares accordingly. The said
certificate which is signed by the learned counsel and initialled by the
Court Associate has been placed on record.

126
M.B.A./I-158/S Appeal accepted

127
2005 P L C (C.S.) 1029

Supreme Court of Pakistan

[Shariat Appellate Jurisdiction]

Present: Justice Nazim Hussain Siddiqui, Ch airman, Justices Javed Iqbal, Tanvir
Ahmed Khan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari,
Members

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance Government of

Pakistan, Islamabad and others

Versus

I.A. SHERWANI and 3 others

Shariat Appeals Nos.4 to 7 of 1993, decided on 9th January, 2004.

(On appeal from the judgment, dated 14-10-1992 of Federal Shariat Court, passed in Shariat
Petitions Nos. 63-1/1990, 67/1 of 1990, 18/I of 1991, 24/I of 1991).

(a) Civil Service---

----Pension---Import, object and scope---Right of pension depends upon statutory provisions

regulating it, therefore, existence of such right or otherwise is determined primarily from the
terms of the statute under which the right or privilege is granted---In general sense, the term
`Pension' denotes to a grant after release from service---Pension is designed to assist the

128
pensioner in providing for his daily wants and it presupposes the continued life after retirement.

New Encyclopaedia Britannica 15th Edn., Vol. 9, p.266 and Maaruful Qur'an by Hazrat Moulana
Mufti Muhammad Shafi p.730 ref.

(a) Civil Servants Act (LXXI of 1973)---

----Ss.19 & 25(2)---Constitution of Pakistan (1973), Art. 203-F---Pension---Old and new

pensioners---Classification---Un-Islamic and discriminatory---Doctrine of Adl and Ehsan---
Applicability---Respondents being pensioners assailed classification of pensioners as `old
pensioners' and `new pensioners' before Federal Shariat Court on the ground of its being against
the injunctions of Islam---Petition was accepted by Federal Shariat Court and was declared the
classification as discriminatory-Validity-While in service, the employees of any grade all the
time did not get the same pay---Supreme Court quoted an example of an employee who entered
into service earlier and got increments---Salary of such employee must be more than the
employee who joined service in the same grade after a year of the earlier employee---While
serving in same grade, when employees got different pays then how they could ask for
computation of their pension in violation of Pension Rules in force on the retirement of civil
servants---No contract existed between the pensioners and Government regarding
terms/conditions relating to the change of rate of pension in future, as such the distinction
between `old pensioner' and `new pensioner ' could not be undone and each pensioner would get
pay according to his entitlement under the law---Such distinction could not be termed as
discriminatory---Pension was regarded as wealth and inequality in its distribution did not render
it un-Islamic nor different rates could be termed as discriminatory---Quantum of pension was
determined having taken into consideration; (i) the length of qualifying service (ii) emoluments
drawn and (iii) as per rates prescribed in relevant rules---Rules of pension, as applicable to the
retired civil servants of Pakistan were not contrary to the concept of `Adl' and `Ehsan' as
enunciated in 'Islamic principles---Respondent had not assailed any specific provision of law and
the judgment passed by Federal Shariat Court was simply of general nature highlighting the
grievances of pensioners arising from inflation---Liberal interpretation of pension laws/rules
rendering them totally ineffective was neither permissible nor possible---Ex facie, pension
related laws were not inconsistent with or in derogation of fundamental rights---On the grounds
of personal hardship, inconvenience, disliking and paucity of funds for decent living of a
pensioner, the pension related laws, rules and regulations could not be altered, modified or struck
down---Judgment passed by Federal Shariat Court , was set aside and the petition filed before
Federal Shariat Court was dismissed---Appeal was allowed.

The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P.

129
Communications and Works Departments, Peshawar v. Muhammad Said Khan and another PLD
1973 SC 514; D.S. Nakara and other v. Union of India AIR 1983 SC 130; Pakistan v. Public-at-
Large PLD 1986 SC 240; Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC
72 and The Board of Trustees of the Federal Employees Benevolent and another v. Nazir Alam
Shah 1996 SCMR 1073. ref.

(c) Civil Service---

----Pension---Revision of pay and scales---Effect---Pension of retired Government servants is not

to be re-calculated on revision of pay and scale of serving employees---Benefit given to a person
in employment cannot be claimed by pensioner as a matter of right.

Makhdoom Ali Khan, Attorney-General for Pakistan for Appellants.

Respondents in person with Mehr Khan Malik, Advocate-on-Record.

Dates of hearing: 1st and 2nd December, 2003.

JUDGMENT

JUSTICE NAZIM HUSSAIN SIDDIQUI (CHAIRMAN).-------This judgment will dispose of

above titled Shariat Appeals in which common questions of facts and law are involved.

2. The appellants of these matters have impugned the judgment, dated 14-10-1992 of learned
Federal Shariat Court, Islamabad delivered in Shariat Petitions Nos.63/I of 1990, 67/I of 1990,
18/I of 1991, 24/I of 1991, whereby the same were allowed in terms of the following
observations:-

130
 "35. We are of the considered opinion that the division of pensioners, into new and old
pensioners is also discriminatory. Actually pensioner is a pensioner irrespective of the
date on which he retired and whenever there is any revision of salary or pension each one
of the pensioners is entitled to get pension equal to the other in the same grade or
category. It transpires that section 19 of Civil Servants Act is being implemented by the
Government in respect of different pensioners not keeping in view the principle of "Adl"
and "Ihsan". We are of the opinion that the aforesaid impugned notifications of the years
1985 and 1986 are inconsistent with the Injunctions of Islam inasmuch as the principles
of "Adl" and "Ihsan" have been overlooked. We will direct that Regulation 4 of the Civil
Services Regulations be also brought in conformity with the Injunctions of Islam.

36. The judgment shall take effect after 6 months from today."

3. In above titled appeals, the respondents are I.A. Sherwani (in Shariat Appeal No.4 of 1993),
Major, M. Yousuf Khan, Naib Subed. Jalil Khan, Dafedar Muhammad Sher, Naik Sher Hassan,
Naik Moin Khan, Qazi Waheed-ud-Din and Ishaq Ahmed (in Shariat Appeal No.5 of 1993),
Major General (Retd.) Shiren Dil Khan Niazi and Col. (Retd.) Amir Nawaz (in Appeal No.6 of
1993) and Fazal Illahi (in Shariat Appeal No.7 of 1993). All above named have retired from
service on various dates and in different grades from their respective departments.

4. These matters related to grant of pension. In the notifications issued in the years 1985 and
1986 by the Government two terms namely "old pensioners" and "new pensioners" have been
used. The respondents have been placed within the ambit of "old pensioners". They not only
impugned the correctness, proprietary and legality of above terms but also pleaded that the
difference between the rates of "new pensioners" and "old pensioners" is inconsistent with the
Injunctions of Islam as laid down in Holy Qur'an and Sunnah.

5. The crucial point raised before Federal Shariat Court was whether the Government servants of
the same grade, who retired on different dates, could claim the same amount as pension.

6. According to Civil Services Regulations (CSR), the Regulation No.4 empowers the
Government to reserve the right of changing the rules of these Regulations regarding pay and
acting allowances and leave and pension from time to time at its discretion, and of interpreting
their meaning in case of dispute. The Government has exercised this power keeping in view the
circumstances at different times. As per CSR by Messrs Hamid Ali and Zaka Ali, Advocates at
page 134 of Revised Edition 2002, the pensions are divided in four classes namely:---

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 (a) Compensation pension, (b) Invalid pension, (c) Superannuation pension, (d)
Retiring pension.

7. Presently, we are concerned with the Superannuation/retired pension, which is granted to a

civil servant on reaching a particular age. As per Regulation 486, the term "emoluments" means
the emoluments which the Officer was receiving immediately before his retirement and, shall
including the:---

(a) Pay as defined in FR 9(21)(a)(1); (b) Senior Post Allowance; (c) Special Pay of all
types and nature; (d) Personal Pay; (e) Technical Pay; (f) Dearness Allowance; (g)
Increments accrued during leave preparatory to retirement; (h) Any other emoluments,
which may be specially classed as Pay.

And the term, as per Regulations 487 "Average Emoluments" means the average calculated upon
last three years of service.

8. Section 19 of the Civil Servants Act, 1973 speaks about pension and gratuity and section 25
empowers the President or any person authorized by him on this behalf to make such rules as
appears to him necessary or expedient for carrying out the purposes of this Act. Pension is
acquired after putting in satisfactory service for the prescribed minimum period. It could not be
reduced or revised arbitrarily, except to the extent and in the manner provided in the relevant
rules.

9. As a rule, the right of pension depends upon statutory provisions regulating it, therefore, the
existence of such right or otherwise is determined primarily from the terms of the statute under
which the right or privilege is granted. In general sense the term "Pension" denotes to a grant
after release from service. It is designed to assist the petitioner in providing for his daily wants
and it presupposes the continued life after retirement. In the New Encyclopaedia Britannica
Vol.9, 15th Edition at page 266 the following is laid down for the term "pension":---

"Pension, series of periodic money payments to a person who retires from employment
because of age, disability, o r the completion of an agreed span of service. The payments

132
 usually continue for the rest of the natural life of the recipient, and sometimes to a widow
or other survivor. Military pensions have existed for many centuries, private pension
plans originated in Europe during the 19th century.

Eligibility for and amounts of benefits are based on a variety of factors, including length
based on a variety of factors, including length of employment, age, earnings, and, in
some cases, past contributions."

In Maaruful Qur'an by Hazrat Moulana Mufti Muhammad Shafi at page 730 regarding Islamic
System of Distribution of Wealth, the following was observed:---

Urdu 1033
11. Mr. Makhdoom Ali Khan, Attorney-General for Pakistan assisted by Hafiz S.A. Rehman,
Deputy attorney-General, appearing for the appellants submitted that respondent I.A. Sherwani
had raised similar points before this Court in Constitutional Petition No.15(R) of 1989 and main
demand therein was that the pensioners be allowed their pensions to be revised on Pay scales
revised by Federal Government from time to time after their retirement. Above referred petition
was heard along with two identical petitions and following verdict was recorded by this Court.

"33. We would, therefore, allow the above petitions to the extent of declaring that denial
of additional benefits of 2% of pension for each year of service exceeding 30 years
subject to maximum of 10% of pension sanctioned referred to hereinabove in para.
19(a)(xvii) to the pensioners who retired prior to 1-7-1986, and denial to the petitioner in
C.P. No.5-R of 1990 of the benefit under P.O. No.5 of 1988 referred to hereinabove in
para.19(b)(vi) on the ground that he retired prior to 1-7-1987 founded on above eligibility
criteria as to the date of retirement, being discriminatory and violative of Article 25, they
other entitled to the same (if not already granted) pensioners are paid."

Learned Attorney-General submitted that above judgment of this Court was implemented from
1-7-1986 and arrears from above date onward were paid. He also submitted that the civil servants

133
are entitled to pension on retirement in terms of sections 19 and 25(2) of Civil Servants Act,
1973. He contended that CSR were in existence before the commencement of Civil Servants Act,
1973, therefore, CSR are to taken as rules under the said Act. He particularly referred to the
terms pay as defined in FR-9/21 i.e. the amount drawn monthly by a civil servant. He
strenuously argued that pensions of retired Government servants, as per rules, are not re-
calculated on revision of pay scales of serving employees. He stated that the Government is
conscious of welfare of the pensioners and has improved their retirement benefits from time to
time in the following manner, in spite of the fact that there is no provision in the rules to allow
increase in pension of the retired Government servant:---

(1) Upto 30-6-1966, pensions were calculated on 50% of average emoluments drawn during
the last 36 months on completion of 30 years service qualifying for pension. From 1-7-
1966 the percentage was raised from 50% to 60% of the average emoluments. Those who had
retired prior to 1-7-1966 were allowed to get their pension re-calculated or to enjoy increase
on their pension sanctioned from 1-4-1964.

(2) Under Liberalized Pension Rules for Civil Servants introduced in 1977, the
Government servants retired on or after 1-3-1972 after a service of 30 years were
allowed to get their pension re-calculated @ 70% of average emoluments or
continue to draw Pension under the then existing formula of 60% of average
emoluments with following increases already admissible as to them:

Rate of increase Date of effect

(i) (a) Gross pension not exceeding Rs.50/- 1-6-1973

ad hoc increase @ 20% subject to

minimum of Rs.5

(b) 15% of gross pension subject to

minimum of Rs.10 for pensions

between Rs.51 to Rs.100

134
 (c) 15% of gross pension subject to

minimum of Rs.30 on pensions upto

Rs.500 with marginal adjustment

upto Rs.530.

(ii) 15% of gross pension not exceeding 1-8-1973

Rs.700 subject to maximum of Rs.35

(iii) 15% of gross pension subject to a 8-6-1974

maximum of Rs. 100

(iv) 10% of gross pension subject to a 7-4-1975

maximum of Rs.25 p.m.

Pensioners who had retired before 1-3-1972 were entitled to have their retirement pensions re-
calculated in accordance with one of the following alternatives whichever was more favourable
to them;

The amount of their pensions shall be calculated at the rate of 70% of average emoluments on
completion of 30 years qualifying service without dearness increases sanctioned before 1st
February, 1977. They may continue to receive existing pension and increase with following
additional benefits:---

(1) An increase of 5% in the case of an employee who retired between 1st July, 1963 and 29th
February, 1972 or 12-1/2 per cent in the case of an employee who retired upto 30th June, 1963
over his existing gross pension, plus dearness increases admissible thereon.

135
(2) From 1-7-1980 the Government servants retired upto 30-6-1980 were given the following
gradewise increases:--

Grade 1 to 10 Rs.40 p.m.

Grade 11 to 16 Rs.70 p.m.
Grade 17 to 18 Rs.100 p.m.
Grade 19 to 20 Rs.150 p.m.
Grade 21 to 22 Rs.200 p.m.

(3) From 1-7-1981 an increase of 10% of gross pension subject to maximum of Rs.200 p.m. to
those retired upto 31-12-1982.

(4) From 1-7-1982 an increase of 10% of gross pension subject to maximum of Rs.200 p.m. to
those retired upto 30-6-1983.

(5) From 1-7-1983, the following benefits were given:---

(i) Dearness increase @ 10% of gross pension subject to maximum of Rs.200 to those retired up
to 30-6-1983.

(ii) Family pension of widow was made for life. Previously it was admissible for five years upto
29-2-1972 and for 10 years thereafter. Also see sub-para. (6)(iv) below in case of widows whose
pension ceased due to expiry of 5/10 years.

(iii) Prior to 1-7-1983 the concept of ordinary family pension did not exist for Armed Forces
pensioners upto the rank of Junior Commissioned Officers. The families of such personnel
retiring on or after 1-7-1983 were allowed family pension as admissible on civil side.

136
(6) From 1-7-1985 following benefits were allowed:---

(i) Pensioners retired upto 31-12-1985 were given indexation on pension @ 13-1/2% of gross
pension upto Rs.1500 and 10% of gross pension above Rs. 1500 to those retired upto 31-12-
1985.

(ii) Prior to 1-7-1985 pensions were subject to 50% reduction after Rs.600, 1000, 2000, 2500
during 1-7-1966 to 29-2-1972, 1-3-1972, 30-6-1985 respectively. The above cut-off points were
removed from 1-7-1985. This benefit was also. allowed to all those retired prior to 1-7-1985 and
widows whose husbands retired or died prior to 1-7-1985. No arrears were allowed prior to 1-7-
1985.

(iii) There was no concept of restoration of pensions surrendered for commutation/gratuity if the
pensioners concerned out-live the prescribed period.

From 1-7-1985 1/4th of gross pension surrendered for commutation was made restorable to the
pensioners who out-live the period for which it was allowed but no arrears were allowed prior to
1-7-1985. Also see items 7(ii) and 12.

(iv) The family pension of widows which ceased prior to 1-7-1983 after expiry of prescribed
period of 5/10 years and in cases where pension was not admissible as the retired/deceased
Government servant had already availed pension- for 5/10 years were also allowed family
pension for life or until remarriage.

(7) From 1-7-1986 following benefits were allowed:

(i) Those retired upto 31-12-1985 were given indexation @ 4-1/2% of gross pension upto 1500
and 3-1/2% of gross pension above Rs.1500. Those retired between 1-1-1986 and 30-6-1986
were given indexation @ 4% of gross pension upto Rs.1500,and 3% of gross pension above
Rs.1500 or indexation on pension at the rate applicable had they retired on or before 1-1-1986.

137
(ii) 1/4th of the pension surrendered for gratuity i.e. where commutation was not availed was
also made restorable from 1-7-1986 to the pensioners who outlive the period for which it was
allowed.

(iii) Initially Government servants retired on or after 1-7-1986 were entitled to additional benefit
@ 2% of pension for each year of service put in after 30 years service subject to maximum 10%
of gross pension. This was subsequently extended to those retired prior to 1-7-1986.

(8) From 1-7-1987 following benefits were allowed to pensioners:---

(i) Indexation on pension @ 4% of gross pension to those retired upto 30-6-1987.

(ii) The widows of Government servants who died prior to introduction of pension-cum-gratuity
scheme, 1954 were also allowed family pension from 1-7-1987 if the deceased had rendered
pensionable service.

(iii) The widows of Armed Forces personnel upto the Rank of Junior Commissioned Officers
who retired/died prior to 1-7-1983 were also allowed ordinary family pension for life or until
remarriage.

Those retired and died after 1-7-1983 were already entitled to family pension (item 5(iii) above.

(9) From 1-7-1988 following benefits were given to the old pensioners:---

(i) Indexation on pension @ 7% of gross pension to those retired upto 30-6-1988.

138
(ii) The widows who were granted family pension from 1-7-1985 (item 6 above) were also
allowed the dearness increases on their pensions.

(iii) From 1-7-1988 no gross pension of a retired Government servant would be less than Rs.300
p.m.

(10) From 1-7-1990 5% of pension to all retired upto 30-6-1991.

(11) Government servants retired prior to 1-7-1986 have been allowed the benefit to the extent of
2% of gross pension for each extra year of service beyond 30 years qualifying service subject to
a maximum of 10% of gross pension (orders issued on 13-6-1991).

(12) From 1-7-1991, one fourth of gross pension surrendered in lieu of gratuity, in addition to
commutation, has been allowed to be restored, after outliving the period for which gratuity was
allowed.

(13) From 1-7-1991 Government servants retired prior to 1-5-1977 have been allowed dearness
increases @ 12% and those retired from 1-5-1977 @ 12%.

3. In the light of above, present gross pension of an officer retired in March, 1977 after drawing
maximum of B-20 for 3 years and after service of 35 years has risen from Rs. 1410 p.m. to
Rs.3,997.69 p.m. as under:---

1. Gross pension for 30 years service on 31-3-1977 Rs.1410

2. Grade-wise increase from 1-7-1980 Rs.150
3. 10% of above 2 items from 1-7-1981 Rs.156
4. 10% of above 3 items from 1-7-1982 Rs.171/60
5. From 1-7-1985 restoration of cut-off or 410 Rs.410
(imposed at the time of retirement)
6. 10% of above 5 items from 1-7-1985 Rs.229/76
7. 3-1/2% of first five items from 1-7-1986 Rs.80/41
8. 4% of first five items Rs.91.90

139
 9. 7% of first five items Rs.160.83

10.5% of first five items Rs.114.88

11.From 1-7-1986 benefit ® of 2% of items 1 and 5 R.217.49
above for each year of service put in after 30
years service subject to maximum of 10% with
increases items 7 to 10 above.
12.32% of first five items and items 11 Rs.804.32
Total Rs.3,997.69

Grant of 5% additional benefit from 1-7-1990 in pension involves expenditure of

Rs.570.65 million and benefit of Rs.200 p.m. from 1-7-1990 involves additional
expenditure of Rs.2,581.46 million on 10,75,607 pensioners. For this additional
expenditure Government will have to levy additional taxes, which will increase prices
affecting entire population of the country.

He also submitted that the term pension though found mentioned in various statutes viz. Pension
Act, 1871, C.P.C., Civil Servants Act etc. but it has not been defined in these laws. He stated that
pension is payable to a civil servant on his retirement on the basis of (1) length of qualifying
service (2) emoluments drawn and (3) as per rates prescribed in relevant rules. He also argued
that the Government even has a right to withhold or reduce pension, as per rules.

12. During the course of arguments the following cases were referred:---

(1) The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P.
Communications and Works Departments, Peshawar v. Muhammad Said Khan and another PLD
1973 SC 514.

(2) D.S. Nakara and others v. Union of India AIR 1983 SC 130.

(3) Pakistan v. Public-at-Large PLD 1986 SC 240.

140
(4) Government of N.-W.F.P. v. LA. Sherwani and another PLD 1994 SC 72.

(5) The Board of Trustees of the Federal Employees Benevolent and another v. Nazir Alam Shah
1996 SCMR 1073.

In the case referred to at Serial No.1, it was held that pension is no longer a bounty but a right
and it cannot be reduced arbitrarily.

In the case at Serial No.2, Article 14 of the Constitution of India was under discussion. It
forbids class legislation but permits reasonable classification for the purpose of legislation,
which classification must satisfy the twin tests of classification being founded on an intelligible
differentia which distinguishes persons or things that are grouped together from those that are
left out of the group and that differentia must have a rational nexus to the subject sought to be
achieved by the statutes in question.

In the case at Serial No.3, a Shariat Appellate Bench of this Court, comprising five Hon'ble
Judges interpreted the phrase. `Injunction of Islam' with reference to the Article 203(b)(d)(e) of
the Constitution.: of Islamic Republic of Pakistan and the matter was remanded to Federal
Shariat Court for fresh decision in accordance with the principles enunciated in said judgment.

In the case at Serial No.4, while interpreting Rules 53 of the Fundamental Rules, it was held that
Rule 53 and rules mentioned at Serial No.106 and all the parallel rules of the Provinces were
repugnant to Injunction of Islam to the extent that they deprived Government Servants of their
full salary and other benefits during the period of suspension and that suspended Government
Servant was entitled to full amount of his salary and all other benefits and facilities provided to
him under the Contract of service.

In the case at Serial No.5 the following was held:---

"There can be two classes of civil servants, one who are in employment and the others
who have retired. If a benefit is given to the persons in employment, which is not
extended to the pensioners, then it will not amount to discrimination as both of them

141
 belong to different classes, and such classification is reasonable. Such classification will
be based on intelligible differentia which distinguishes persons or things that are grouped
together from those who have been left out. Such differentia has rational nexus to the
object sought to be achieved by such classification."

13. It was contended on behalf of the respondents before learned Federal Shariat Court that
pensioner is a pensioner' and there could be no classification as "old pensioner" and "new
pensioner". This plea was accepted by Federal Shariat Court, ignoring the fact that the quantum
of pension is determined keeping in view the emoluments, as specifically mentioned in para. (7)
above. It is noted that, while in service the employees of any grade all the time do not get the
same pay. For example, an employee, who enters into service earlier and get increments, his
salary must be more than an employee, who joined service in the same grade after a year of the
earlier employee. While serving in the same grade, the employees get different pay, how they
could ask for computation of their pension in violation of Pension Rules in force on the date of
retirement of civil servants. Admittedly, there is no contract between the pensioners and the
Government regarding terms/conditions relating to the change of rate of pension in future, as
such, the distinction between old pensioners and new pensioners could not be undone and each
pensioner would get pay according to .his entitlement under the law and this could not be termed
as discriminatory. Pension is regarded as wealth and inequality in its distribution does not render
it un-Islamic nor different rates could 'be termed as discriminatory. The quantum of pension is
determined having taken into consideration; (1) the length of qualifying service (2) emoluments
drawn and (3) as per rates prescribed in relevant rules. The concept of "Adl" and "Ehsan" as
enunciated in Islamic Principles is not contrary to the rules of pension, as applicable to the
retired civil servants of Pakistan."

14. It is significant to note that as per rules the pension of retired Government Servants is not to
be re-calculated on revision of pay and scale of serving employees. A benefit given to a person in
employment, the same cannot be claimed by the pensioner as a matter of right.

15. The case reported as I.A. Sherwani and others v. Government of Pakistan through Secretary,
Finance Division, Islamabad and others 1991 SCMR 1041, was heard by five Hon'ble Judges of
this Court. Almost all the points, raised in these appeals, were considered and answered in above
referred judgment. Like these appeals, the issue of jurisdiction was raised therein and it was held
that under clause (3) of Article 184 of the Constitution, this Court is competent to entertain such
Constitutional petition if it considers that a question of pubic importance is involved with
reference to the enforcement of any of the Fundamental Right conferred by Chapter 1 of Part II
of the Constitution, notwithstanding that there might be an alternate remedy. Further, it was held
that the such proceedings being in the nature of pubic interest litigation, therefore, in order to
advance the cause of justice and public good, the power conferred on this Court under aforesaid
Article is to be exercised liberally and unfettered with technicalities.

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16. The contention that since the Pension Scheme in Pakistan is salary related, as such, revision
in pay scales should also be made applicable to the pensioners, as the reason for revision of pay
scales is the rising cost of living and escalating inflationary tendencies in the economy and also
decrease in the economic value of rupee, which affect both the serving civil servants and
pensioners, was turned down and the following was held in the above reported judgment:

"In this view of the matter, if the pay scales of serving civil servants are revised, the civil
servants, who have by then already retired cannot have any legitimate grievance to agitate
for notional revision of their pay scale for re-computing their pension amounts for any
purpose as the pension amount is to be computed as per above CSR 4, on the basis of the
pension rules in force on the date of retirement of a civil servant. The pension rules
contain formula as to the method of commutation of pension amount with reference to the
salary drawn by him till the date of retirement and, therefore, there cannot be uniformity
in the amounts of pension among the civil servants despite of having equal rank and
equal length of service, if they retire not on one date but on different dates and in between
such dates pay scales are revised."

17. Even otherwise, specifically any provision of law has not been challenged and the impugned
judgment is simply of general nature highlighting the grievances of the pensioners arising from
inflation. Liberal interpretation of pension laws/rules rendering them totally ineffective is neither
permissible nor possible. Ex facie, pension related laws are not inconsistent with or in derogation
of fundamental rights. On the grounds of personal hardship, inconvenience, disliking and paucity
of funds of decent living of a pensioner, the pension related laws, rules, and regulations cannot
be altered, modified or struck down.

18. In consequence, we allow these appeals, set aside the impugned judgment of Federal Shariat
Court and dismiss the petitions tiled by the respondents before Federal Shariat Court.

M.H./F-16/S Appeals allowed.

2005 S C M R 100

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[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, C.J. Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

IKRAM BARI and 524 others---Petitioners

Versus

NATIONAL BANK OF PAKISTAN through President and another---Respondents

Civil Petitions Nos. 1772, 1789 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909 to 1942, 1944 to 1946,
1991 to 1998, 2002, 2021 to 2080, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to
2164, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2188 to 2432, 2449 to 2520; 2530 and 2606 of
2003, decided on 21st September, 2004.

(On appeal from the judgment, dated 17-7-2003 of the Federal Service Tribunal, passed in Appeals Nos.
98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to
1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093,
1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184,
1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 131?, 1319, 1416 to 1422,
1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466-R/CW/2002)

(a) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Termination from service---Godown staff/daily wages employees--- Status---Employees
had been working with bank for the past many years on daily wages in various categories---Bank
terminated their services on the ground that although the employees were appointed by the bank yet

144
their salaries were being paid by the borrowers," loanees---Validity---As the employees were not
selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they
could be treated to be the employees of the borrowers/loanees---It the salaries of temporary
employees/godown staff or the daily wages employees were debited to the borrowers account that
would make no difference since for all practical purposes and legal consequences the employees were
placed under the administrative control of the bank.

(b) Islamic jurisprudence---

----Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is

free from exploitation wherein social arid economic justice is guaranteed to its citizens.

(c) Industrial dispute---

----Employer and employees---Bargaining strength---Termination from service ---Godown staff/daily

wages employees---Employees had been working with bank for the past many years on daily wages in
various categories---Bank had terminated their services on the ground that although the employees
were appointed by the bank yet, their salaries were being paid by the borrowers/loanees---Validity---No
equilibrium of bargaining strength between employer and employees existed---Manner in which the
employees had been dealt with by the bank was a fraud on the statute.

(d) Constitution of Pakistan (1973)---

----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance--- Applicability---Objectives

Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution
which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic
justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental
rights--Principles of policy contained in Art.38 of the Constitution also provide that the State should
secure the well-being of the people by raising their standards of living and by ensuring equitable
adjustment of rights between employer and employees and provide for all citizens, within the available
resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and

145
earnings of individuals--State is obliged under Art.3 of the Constitution, to ensure the elimination of all
forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his
ability, to each according to his work.

(e) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A--Constitution of Pakistan (1973), Art.212(3)---
Termination from service ---Godown staff/daily wages employees ---Reinstatement---Back-benefits,
grant of---Employees had been working with bank for the past many years on daily wages in various
categories--Bank had terminated their services on the ground that although the employees were
appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---Supreme
Court found it difficult to countenance the approach of the bank that the temporary godown staff and
the daily wages employees should be continued to be governed on disgraceful terms and conditions of
service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act,
1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the
door, had no option but for accept and continue with the appointment on whatever conditions it was
offered by the bank---Service Tribunal had rightly imposed a condition of three years length of service
with not more than fifteen days break between the consecutive appointments and termination of
service for regularization of service of employees---Such conditions were reasonable and were also in
line with the policy decisions taken by the bank itself from time to time--Employees had woken up from
deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair
and inequitable to grant them monitory back-benefits of service from the dates of their initial
appointments---Supreme Court directed the bank to issue appointment letters to the employees and
previous service rendered by them with the bank would be counted towards retirement/pensionary
benefits---Appeal was allowed.

Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003
SCMR 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others
2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others
PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Ltd, Karachi v. Ghulam Abbas and
others 2003 PLC (C.S.) 796; Federation of Pakistan v. Raees Khan 1993 SCMR 609; Abdul Majeed Sheikh
v. Mushafee Ahmed PLD.1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division,
Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editor-
in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v.
Superintending Engineer, Public Health Engineering Circle, Gujranwala, v. Government of the Punjab
through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and

146
2 others 1996 SCM.R 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v.
Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294;
Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Malik Khawaja Muhammad and 24
.others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu
Khan and others 1986 SCMR 962; Allahdino v. Fakir Muhammad and another PLD 1969 SC 582; Federal
Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC); Federation of Pakistan and another
v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz
Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through Establishment Division, Islamabad
and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212; Muhammad Sohail and 2
others v. Government of N.-W.F.P. and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home,
Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment
Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and
others PLD 2002 SC 101; WAPDA and others v. Khanimullah and others 2000 SCMR 879; Black's Law
Dictionary Revised 4th Edn. (1968) p.1518; State Bank of India v. Shri N. Sundara Money AIR 1976 SC
1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre
& Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another
1992 PLC (Labour) 1028 (D.B.) Karachi; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited
and 3 others 2000 PLC (Labour) 52 (Karachi); Muhammad Yaqoob v. The Punjab Labour Court No. 1 and
5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162
(Lah.); Syed Aftab Ahmed and others K.E.S.C. and others 1999 SCMR 197; Abdul Sattar and another v. Sui
Northern Gas Pipelines Limited and others 2001 SCMR 1935 Muhammad Riaz Khan v. Government of N.-
W.F.P. and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee,
Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council,
Islamabad and others 2003 SCMR 1471; Muhammad Mumtaz and others v. Muhammad Sher 1988
SCMR 1389; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Hakim Muhammad Buta and
another v. Habib Ahmad and 'others PLD. 1985 SC 153; Mir Muhammad Khan v. Secretary to the
Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v.
Government of the Punjab and 5 others PLD 1980 Lah. 337 ref.

(f) Judgment---

---Judgment in rem and judgment in personam---Case-law cited.

Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad

and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34 (S.C.), Muhammad Sohail and 2 others v.
Government of N.-W.F.P and others 1996 SCMR 218, M/A Rashid Rana v. Secretary Home, Government

147
of Punjab 1996 SCMR 1145, Pir Bakhsh (supra) PLD 1983 SC 684, Farokh Homi Irani v. Nargis Farokh Irani
PLD 1963 Kar. 567, Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri
Radha Krishna Singh and others AIR 1983 SC 684 rel.

(g) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--Termination from service---Time-barred

appeal---Plea of void order--Limitation---Principle---Service Tribunal dismissed the appeal being barred
by limitation---Plea raised by the employees was that the order of termination was a void-order against
which there was no period of limitation---Validity---No rule of universal application was that in all cases
of void orders, question of limitation was to be treated a mere technicality and a litigant was entitled to'
invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet will at any time
without showing any exceptional circumstances for the delay---Supreme Court declined to interfere with
the order passed by Service Tribunal-Leave to appeal was refused.

Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and two others PLD 1990 SC
692 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882
rel.

(h) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--Termination from service ---Godown
staff/daily wages employees--Proceedings before National Industrial Relations Commission-Employees
had been working with bank for the past many years on daily wages in various categories- --Bank had
terminated their services on the ground that although the employees were appointed by the bank yet
their salaries were being paid by the borrowers/loanees---Employees had been pursuing their cases
before National Industrial Relations Commission and their appeals were dismissed by Service Tribunal
being barred by limitation---Validity---Controversy as to the application of S.2-A of Service Tribunals Act,
1973, remained in a state of fluidity for a considerable period of time---Service Tribunal itself had
declined to exercise its jurisdiction in, old cases and the matter was resolved by Supreme Court---As the
termination orders were passed on 2-7-2002, 30-4-2002 and 29-2-2002 and appeals before Service
Tribunal were filed on 6-7-2002, 8-6-2002 and 29-4-2002 after filing departmental appeals, the Service
Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of the employees as

148
time-barred---Judgment of the Service Tribunal was set aside and the petition for leave to appeal was
converted into appeal---Supreme Court reinstated the employees in service with back-benefits from the
date of their termination---Appeal was allowed.

Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Muhammad Afzal v. Karachi Electric Supply Corporation
and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830
and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR
944 rel.

Ch. Ghulam Qadir, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1772, 1789 to 1795, 1839, 1840
to 1843, 1884 to 1896, 1901 and 1910 to 1912/2003).

Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1916 to 1942, 1944 to 1946,
1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174/2003).

Syed Iftihkar Hussain Gillani, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-on-
Record for Petitioners (in C.Ps. Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to
2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003).

Ehsan-ul-Haq, Ch. Advocate Supreme Court for Petitioners (in C.Ps. Nos.2021 to 2073, 2075, 2076, 2078,
2179 and 2180 of 2003).

Muhammad Akram Sh, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2129, 2139, 2141,
2142, 2147 to 2163 and 2177 of 2003).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2168 of 2003).

149
Kh. Muhammad Farooq, Senior Advocate Supreme Court with Rai Ahmed Nawaz Kharal, Advocate
Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in C.Ps. Nos.2188 to 2425 of 2003
and in all other petitions).

In person (in C.Ps. 2182, 2183 to 2185 and 2330/2003).

Date of hearing: 9th March, 2004.

JUDGMENT

FAQIR MUHAMMAD KHOKHAR, J.---These petitions for leave to appeal, under Article 212(3) of the
Constitution of Islamic Republic of Pakistan, by the Bank employees as well as by the National Bank of
Pakistan (employer) are directed against common judgment dated 17-7-2003 passed by the Federal
Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.98(Q)CW/2002 to
122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to
1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099,
1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to
1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427,
1435, 1437 to 1453, 1462 to 1464 to 1466R/CW/2002.

2. The petitioners/Bank employees were appointed on fixed salaries by the National Bank of Pakistan in
various categories of Godown Staff such as temporary Godown Keepers/Chowkidars or on daily wages
as Assistants, Cashiers, Steno-typists, Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers
and Watermen etc. They continued in service for a number of years with short breaks in service from
time to time without being regularized. The services of some of them were terminated. Therefore, they
filed appeals before the Tribunal for regularization, or as the case may be, for reinstatement and
regularization in service as permanent employees of the Bank.

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3. The Tribunal accepted most of the appeals of the Godown staff and the daily wages employees
(petitioners in Civil Petitions No.1772, 1789 to 1795, 1839, 1840, 1884 to 1896, 1901, 1910 to 1912,
1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to
2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449
to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606/2003), by the
impugned judgment, dated 17-7-2003, in terms of para. 10 thereof to the following effect:---

"Result of the aforementioned discussion is that the appeals shown at serial Nos. 1 to 240 filed
for regularisation by the Godown Staff and the daily wage employees succeed and are accepted.
The respondent-Bank is directed to regularize the services of appellants who have completed
three years of service with breaks of not more than 15 days between any two consecutive
appointments. The regularization exercise should be completed within five months of the
receipt of this judgment. While admitting these appeals this Tribunal had passed orders
restraining the respondent-Bank from passing any adverse orders against the appellants.
Therefore if services of any of the appellants were terminated during the pendency of his
appeal, the same being violative of the Tribunal's orders, stands set aside and the affected
employee is reinstated in service and entitled to payment of salary for the intervening period."

However, the appeals of the employees (petitioners in Civil Petitions Nos. 1909, 1913 to 1915, 1940 to
1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077, 2088, 2164, 2449, 2464, 2482 to 2484, 2489 and
2498 of 2003) were dismissed as time-barred. The appeals of the petitioners (in Civil Petitions Nos. 1841
to 1843 of 2003) against their termination from service were also accepted and the respondent-Bank
was directed to regularize their services in accordance with the criteria laid down in para. 10 of the
impugned judgment .for regularization of temporary Godown Staff and daily wages employees whose
services had not been terminated. The appeals of the petitioners (in Civil Petitions 1939, 1991, 1992 and
1995 of 2003) were also dismissed as time-barred on the ground that they had been pursuing their
remedies for regularization/reinstatement in service before the National Industrial Relations
Commission despite the introduction of section 2-A in the Service Tribunals Act. 1973 (hereinafter
referred to as the Act. of 1973). Hence these petitions for leave to appeal by the employees for grant of
back-benefits, against conditions of regularization and against dismissal of their appeals as time-barred
and also by the Bank against the regularization/reinstatement of the employees in service.

4. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court, learned counsel for the petitioners (Civil
Petitions Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2181, 2483,
2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003) submitted that the Bank had agreed to absorb the
petitioners and other employees after a meeting with representatives of the staff. Some of such

151
employees had already been permanently absorbed. The Bank had issued a Circular Letter No.P/2003
dated 1-8-2003 which clearly showed that regular vacancies numbering up to 1500 were available to
regularize the temporary Godown staff and the daily wages employees. The impugned judgment of the
Tribunal was required to be modified so as to regularize and absorb the petitioners/employees from the
date of their initial appointment with all back-benefits as was done in the case of other employees who
were similarly placed. The learned counsel pointed out that there was a confusion in regard to the
remedy provided to the employees of statutory corporations or other bodies established and controlled
by the Federal Government. The controversy was eventually resolved by this Court in the case of Aftab
Ahmed v. K.E.S.C. 1999 SCMR 197 wherein it was held that remedy of appeal under section 2-A of the
Service Tribunals Act, 1973 had become available to such employees retrospectively in respect of their
service related grievances. Even otherwise the question of limitation was of a technical nature which
ought not have been treated to be insurmountable -hurdle as laid down in the case of Managing
Director Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724.

5. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court for the employees (petitioners in Civil
Petitions Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003) argued that ordinarily the
findings of fact recorded by the Tribunal were not interfered with by this Court. The petitions filed by
the Bank did not raise any substantial question of law of public importance as contemplated by clause
(3) of the Article 212 of the Constitution which was necessary for grant of leave to appeal. It was further
submitted that admittedly the letters of appointment of the employees had been issued by the Bank
itself. There was no necessity of lifting veil merely on the ground taken by the Bank that the temporary
Godown staff and daily wages employees were recruited on behalf of the account holders/borrowers.
The learned counsel submitted that the entire bank staff whether temporary or permanent was there at
the expense of the account holders. The learned counsel relied on the case of National Bank of Pakistan
v. Ghulam Rasool 2002 PLC (C.S.) 1639 in support of his contention that in similar cases, this Court had
declined interference with the regularization of the temporary Godown staff by the Tribunal. The
learned counsel lastly submitted that the petitioners-employees were entitled to be regularized in
service with back-benefits and without any preconditions.

6. Mr. Ihsanul Haq Chaudhry, Advocate Supreme Court, learned counsel for the employees (petitioners
in Civil Petitions Nos.2021 to 2073, 2075, 2076, 2078, 2079, 2164, 2179 and 2180 of 2003) argued that
the appointment of the petitioners, like other employees, was made against permanent posts but the
Bank adopted an illegal policy to employee the Godown and daily wages staff on fixed salary, from time
to time, with short breaks in service after every 89 days. In many cases, the employees were not issued
any letters of appointment or termination from service. The Bank itself had issued instructions in the
year 1991 for absorption/confirmation of the daily wages employees and Godown staff. The lists of
Godown staff and daily wages were prepared and a highpowered committee was constituted by the
Head Office of the Bank for scrutiny of the lists for the purpose of absorption. A number of such

152
employees were regularized by the Bank by following a policy of pick and choose. However, the
petitioners and some other employees were not regularized. It was further pointed out that the
Headquarters of the Bank (Personal Management Wing) (Administration Division), Head Office, Karachi,
had issued memo. dated 7-7-1997 whereby it was decided to absorb 1000 daily wages staff including
temporary Godown staff, 700 in clerical and 300 in non-clerical cadre as on 29-2-1996, on seniority and
provincial quota basis subject to fulfilment of qualifications prescribed for the posts. The Bank also
issued another policy letter dated 1-8-2003 pursuant to an agreement, dated 20-1-2003 between the
National Bank of Pakistan and Collective Bargaining Agent. It was decided that all employees of the,
clerical staff and non-clerical staff such as daily wagers/temporary Godown staff of the Bank who had
completed three years of service in the case of clerical staff and 5 years service in the case of non-
clerical staff and had passed their matriculation examination would be employed by the Bank in the
regular cadre against 1500 posts provided the gap between their termination/re-appointment did not
exceed 15 days. The Head Office of the Bank by circular dated 15-9-2003 notified instructions to all its
Regional Offices to issue the appointment letters to temporary Godown staff and daily wages employees
on the spot. The learned counsel next submitted that in somewhat similar circumstances the
management trainees of the Sui Northern Gas Company Ltd, Karachi were also inducted/regularized.
Reference was made to the cases of Engineer Naraindas and another v. Federation of Pakistan and
others 2002 SCMR 82, the Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and
others PLD 2001 SC 176 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam
Abbas and others 2003 PLC (C.S.) 796. The learned counsel contended that even in the past, a number of
daily wages employees and temporary Godown staff were regularized in service by the Tribunal as
affirmed by this Court judgment, dated 23-10-2001 in Civil Petitions Nos.1833-L of 2001 to 1848-L of
2003. Civil Review Petitions Nos. 1-L of 2002 to 39-L of 2002 there-against were withdrawn by the Bank.
Similarly, the Bank had also withdrawn Civil Petitions Nos.2172 and 2173 of 2001 titled National Bank of
Pakistan and others v. Umer Hayat and others on 15-1-2002 involving similar cases. It was too late in the
day for the Bank to say that the petitioners and similar other employees were employed by the Bank on
behalf of the borrowers who could not be considered to be the employees of the Bank or that their
appointments were of seasonal nature. The learned counsel submitted that where the appointment of
an employee continued for over a period of years, the same was to be treated as regular
notwithstanding the use of terminology as officiating, temporary and until further orders. Reliance was
placed on the cases of Federation of Pakistan v. Raees Khan 1993 SCMR 609 and Abdul Majeed Sheikh v.
Mushafee Ahmed PLD 1965 SC 208. Reference was made to the case of Ghulam Rasool (supra) wherein
it was held that artificial break in service would not make any difference and such employees of the
National Bank were to be treated as regular. The learned counsel argued that all the employees who
were similarly placed were required to be treated alike. The judgments passed by this Court in such
cases would be considered to be judgments in view and not in personam in view of ratio laid down by
this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of
Pakistan and others 1996 SCMR 1185. It was pointed out that the employees who were regularized as a
result of judgment, dated 25-10-2001 by this, Court in Civil Petitions Nos.1837-L of 2001 to 1848-L of
2001 had also been further promoted in the meanwhile. As regards Civil Petition No.2164 of 2003, the
learned counsel contended that in the facts and circumstances of the case, the Tribunal was not justified
to dismiss the appeal of the said petitioner as time-barred.

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7. Ch. Ghulam Qadir, Advocate Supreme Court learned counsel for the employees (petitioners in Civil
Petitions Nos.1772, 1789, 1790, 1792, 1793 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909, 1910,
1911 to 1915 of 2003) submitted that neither the conditions for reinstatement/regularization of the
petitioners could be imposed nor their back-benefits could be denied by the Tribunal. The impugned
judgment was contrary to the earlier decisions of the Tribunal in similar cases which were upheld by this
Court. Reference was made to the judgment, dated 2-6-2003 passed by the Tribunal in Appeals
Nos.1170R/CW/2002 to 1175RCW of 2002. As regards the cases of termination of the employees
(petitioners in Civil Petitions Nos.1909, 1913 to 1915 of 2003), the learned counsel submitted that the
Tribunal ought to have accepted their appeals by condoning the delay in filing the appeals. He referred
to the cases of Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-
Waqt" and others PLD 2002 SC 514, Hameed Akhter Niazi v. Secretary, Education Division, Government
of Pakistan and others 1996 SCMR 1185 and Syed Imran Raza Zaidi v. Superintending Engineer, Public
Health Engineering Circle, Gujranwala-I v. Government .of the Punjab through Secretary, General
Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645. It
was further submitted that since the orders of termination of employees passed by the Bank were void
ab initio and nullity in the eye of law. Therefore, the question of limitation would not arise. Reliance was
placed on the cases of Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856, Ali Muhammad v. Hussain
Bakhsh PLD- 1976 SC 37, Syed Ali Abbas and others v. Bishan Singh and others PLD 196'7 SC 294, Ch.
Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC, 68, Malik Khawaja Muhammad and 24
others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543, Mst. Rehmat Bibi and others v. Punnu
Khan and others 1986 SCMR 962 and Allahdino v. Fakir Muhammad and another PLD 1969 SC 582.

8. Hafiz Tariq Nasim, Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions 1916
to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174 of 2003) reiterated the
arguments advanced by the other learned counsel for the employees.

9. On the other hand, Khawaja Muhammad Farooq, Senior Advocate Supreme Court, the learned
counsel for the National Bank (petitioners in Civil Petitions Nos. 2188 to 2432 of 2003) submitted that in
all 316 appeals were filed by the employees before the Tribunal against the Bank with the following
breakup:---

(a) Temporary Godown Staff 138 Appeals

(b) Temporary Godown Chowkidars 133 Appeals
(c) Daily Wagers 45 Appeals

154
 (d) 76 appeals by the persons whose services were terminated, which included categories a to c.

The learned counsel next argued that the daily wagers and temporary Godown staff were not the
employees of .the Bank as they were hired on borrowers account. The same was clearly borne out from
the letters of their appointment of these persons. The borrowers had authorized the Bank to make
payment of salaries to the temporary Godown staff and debit the same in their account. Such persons
were never inducted in service of the Bank and were paid a fixed consolidated salary inclusive of
allowances. They were not appointed against sanctioned posts in conformity with the National Bank of
Pakistan (Staff) Service Rules, 1980 (hereinafter referred to as the Service Rules). Since the petitioners
were not in the service of the Bank, therefore, they were not to be treated as civil servants for the
purposes of section 2-A of the Service Tribunals Act, 1973. Their services stood automatically terminated
on the expiry of stipulated period in accordance with terms and conditions of their appointment or
earlier on the adjustment of the finance facility of the borrowers. The petitioners were hired from time
to time for specified period either on behalf of the same or a different borrowers. Each time the
appointment was essentially a temporary or contractual one without there being any continuity of
service and in some cases there was gap for considerable period of time between their termination. and
reemployment. It was next contended that the format of the letters of appointment had been changed
by the Bank but the Tribunal relied on the absolute form of earlier letters of employment. The financial
impact of the claim of the petitioners, if allowed, would be a matter of grave concern for .the Bank. The
learned counsel relied on the judgment of this Court in the case of Federal Bank for Cooperatives v.
Ehsan Muhammad 2004 PLC (C.S.) 25 (SC) where the previous service of a bank employee rendered with
the Government was, not counted towards pensionary benefits. It was submitted that the policy
decisions of 1996 and 2003 for absorption/induction of temporary Godown staff and daily wages
employees were taken by the Bank subject to the availability of regular and permanent posts. The
temporary Godown keepers/Godown Chowkidars and the' daily wages employees were either not in
service at the time of commencement of such policy decisions or they otherwise did not fulfil the criteria
laid down by the Bank. As regards Circular letter, dated 1-8-2003 issued by the Bank for creation of 1500
posts for regular absorption of such employees, the learned counsel pointed out that the said circular
letter reflected only the state of affairs existing on the said date and not to any prior point of time from
which the temporary Godown staff and the other daily wage employees were claiming their
absorption/induction. It was further stated that circular letter, dated 1-8-2003 was issued by the Bank
after the impugned judgment dated 17-7-2003 of the Tribunal. A number of such employees had
Withdrawn their cases from the Tribunal so as to avail the benefit of the said circular letter and were
appointed on regular basis in terms thereof.

155
10. The learned counsel for the Bank next contended that the mere fact that temporary appointments
of the petitioners continued for several years would not mean that those would automatically be
considered to be permanent. Reliance was placed on the cases of Federation of Pakistan and another v.
Hashim Shah Qureshi 1987 SCMR 156 and Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz
Bakht and 58 others PLD 1968 SC 37. It was urged that the earlier judgments of this Court and the
Tribunal in regard to the regularization of temporary Godown staff or the daily wages employees were
distinguishable and were in personam and not in view. Reference was made to the cases of Managing
Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003
PLC (C.S.) 796, Government of Pakistan through Establishment Division, Islamabad and 7 others v.
Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212 Muhammad Sohail and 2 others v.
Government of N.-W.F.P. and others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government
of Punjab and 18 others 1996 SCMR 1145 and Pir Bakhsh v. The Chairman, Allotment Committee and
others PLD 1987 SC 145. The terms and conditions of service of the employees were governed by letters
of their appointment and not otherwise in view of the case of Dr. Anwar Ali Sahto and others v.
Federation of Pakistan and others PLD 2002 SC 101. These persons were hired, from time to time, on
work charge basis/daily wages for a particular project and for a specified duration: Therefore, they could
not be considered as regular employees irrespective of their length of service The learned counsel relied
on the cases of WAPDA and others v. Khanimullah and others 2000 SCMR 879. Reference was also made
to the Black's Law Dictionary Revised 4th Edition (1968, page 1518) wherein 'seasonal employment' was
defined as occupations which could be carried on only on certain seasons or fairly definite portion of the
year and did not include such occupations as might be carried on throughout the entire year. The
learned counsel emphasized that the employment for a specific project and a certain period came to an
end automatically on completion of project or, expire of the specified period in view of the law aid down
in the cases of the State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111 and Marubeni Power
Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249. He also referred to the cases of
General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi
and another 1992 PLC (Labour) 1028 (D.B.) Karachi and Nasir Jamal and 23 others v. Pak Suzuki Motor
Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi) in support of the proposition that there
was nothing to imply a permanent appointment of a person who was re-employed after a short gap of
earlier termination and that where a person hired on behalf of the borrower could not be treated to be
in the employment of the Bank. Some of these persons were daily wages employees being paid salary
only with reference to the number of working days excluding holidays. Therefore, they could not be
treated to be the Bank employees. Reference was made to the cases of Muhammad Yaqoob v. The
Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539, Sui Northern Gas Pipelines Ltd. v. Abdul Sattar
and 2 others 1996 PLC (C.S.) 162 (Lahore).

11. The learned counsel for the Bank further argued that the Tribunal had unjustifiably treated appeals
of these employees to be within time who had wasted their time in filing their departmental appeals
which were not required in view of section 2-A of the Act, 1973 and rule laid down in the cases of Syed
Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197 and Ghulam Abbas and others (supra).

156
The employees were required to file their appeals before the Tribunal within 30 days of termination of
their services or, as the case might be, the refusal to regularize their service by the Bank. An employee
Fiaz Ahmed (C.P. No. 1841 of 2003) had filed his appeal before the Tribunal on 25-6-2002 beyond the
limitation period of 30 days of his termination from service with effect from 19-5-2002. Similarly, Civil
Petitions Nos.1934, 1937 and 1938 of 2003 of the employees were also liable to be dismissed as their
appeals before the Tribunal were rightly held to be time-barred. The question of limitation was not to be
ignored in service matters. Reliance was placed on the cases of Abdul Sattar and another v. Sui Northern
Gas Pipelines Limited and others 2001 SCMR 1935, Muhammad Riaz Khan v. Government of N.-W.F.P
and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and
another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and
others 2003 SCMR 1471, Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389, Sheikh
Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and Hakim Muhammad Buta and another v. Habib
Ahmad and others PLD 1985 SC 153.

12. We have heard the learned counsel for the parties at length and have also perused the relevant
record. We find that the employees/petitioners were recruited, by the Bank by issuing appointment
letters indicating, in some cases, that they were to be governed by the Service Rules of the Bank for
disciplinary matters. They were not selected or recommended by the borrowers. Therefore, on no
principle of law and enquiry, they could be treated to be the employees of the borrowers. It would
hardly make any difference even if the salaries of the temporary employees/Godown staff or the daily
wages employees were debited to the borrowers account. For all practical purposes and legal
consequences they were placed under the administrative control of National Bank of Pakistan. A
somewhat similar question was considered by this Court in the case of Mir Muhammad Khan v.
Secretary to the Government and others 1997 SCMR 1477. In the precedent case, the services of an
employee of Afghan Refugees Organization were terminated after he had rendered more than 10 years
of temporary service. A plea was taken that the employees of the said Organization were not
Government servants as their salaries were not paid from the Annual Federal Budget and that annual
expenditure incurred was reimbursed by the United Nations High Commissioner for Refugees. This Court
repelled the contention by holding that employees of the said Organization were civil servants and were
entitled to pensionary benefits.

13. The record shows that many of the employees were appointed and re-appointed temporarily or on
daily wages for short periods reemployed for same or similar purposes, from time to time, with short
breaks .of service. The total length of service of these employees was stretched over a period from 10
years to 20 years. The nature of the functions performed by these employees fell in category-II of the
Staff Service Rules which included Assistants/Cashiers/Godown. Keepers/Machine and Telephone
Operators. Bank Guards/Chowkidars Messengers and other inferior staff. However, they were recruited
on fixed emoluments which were ridiculously lower than the normal pay scales prescribed for the

157
regular incumbents of the posts in that category. The Bank took policy decisions several times for
regularization/induction or absorption of such employees and also inducted/absorbed many of them in
service on regular basis. The National Bank (Personal Management Wing) (Administrative Division),
Headquarters, Karachi, issued a letter dated 7-7-1996 clearly indicating therein that the Central Union
Committee in its meeting held on 29-2-1996 at Karachi had decided that 1000 daily wages staff and the
temporary Godown staff (700 posts in clerical and 300 posts in non-clerical cadre) as on 29-2-1996
would be absorbed on seniority and provincial quota basis subject to the fulfilment of qualifications
prescribed for the posts. It was brought to our notice that on the strength of letter dated 7-7-1996 some
of the appointees on daily wages and temporary Godown staff were absorbed by the Bank on regular
basis whereas these employees were left out. Again the National Bank of Pakistan, Head Office, Karachi
issued Office Circular No.10/2003 dated 1-8-2003 notifying the Memorandum of Agreement arrived at
between the Bank and the Collective Bargaining Agents (C.B.A.) for regular absorption of temporary
Godown staff and daily wages employees. It was agreed by the respondent-Bank that all persons of
clerical staff who had completed three years service with minimum qualification of Secondary School
Certificate (Matriculation) or equivalent with a satisfactory record of service would be given
employment by the Bank with effect from 15-9-2003 in regular cadre in line with their qualification and
experience with a special concession to females and handicapped in whose case the qualifying period of
such service was fixed as one year. It was further decided that in case of non clerical staff, such persons
if matriculate with minimum five years bank experience as on June, 2002 would be given employment
by the Bank with effect from 15-9-2003 in regular clerical cadre in line with their qualification and
experience. However, the total number of such regular employment by the Bank to such persons in the
regular cadre would not exceed the figure of 1500. The maximum 15 days' gap was permitted between
termination and re-appointment.

14. In the case of Zonal Chief National Bank of Pakistan and others (C.P. No.1833-L of 2001) decided on
23-10-2001, the services of a number of such employees were terminated by the Bank while other
employees were regularized. The Tribunal reinstated them in service which order was upheld by this
Court. In the case of Ghulam Rasool (supra), a Chowkidar of the National Bank was treated to be an
employee on stopgap arrangement, therefore, his services were terminated by the Bank. The Tribunal
passed an order reinstating him in service which was maintained by this Court and leave to appeal was
declined. A some-what similar matter was considered by this Court in the case titled as National Bank of
Pakistan and another v. Malik Ali Sher (C.P. No.849-L of 1993) decided on 18-5-1994. In the said case,
the respondent Malik Ali Sher was employed by the Bank as a Godown Keeper against a post which was
of permanent nature. His services were terminated. The Labour Court reinstated him in service and this
Court declined to grant leave to appeal to the Bank.

15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation
wherein social and economic 'justice is guaranteed to its citizens. The temporary Godown staff and the

158
daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed
by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to
circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries
and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of
appointment or termination to the employees so as to preclude them to 'have access to justice. There
was no equilibrium of bargaining strength between the employer and the employees. The manner in
which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was
adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the
Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of
Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed
which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the
Constitution also provide, inter alia, that the State shall secure the well being of the people by raising
their standards of living and by ensuring equitable adjustment of rights between employers and
'employees and provide for all citizens, within the available resources of the country, facilities for work
and adequate livelihood and reduce 'disparity in income and earnings of individuals. Similarly, Article 3
of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of
exploitation and the gradual fulfilment of the, fundamental principle, from each according to his ability,
to each according to his work. It is difficult to countenance the approach of the Bank that the temporary
Godown staff and the daily wages employees should be continued to be governed on disgraceful terms
and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act
1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and
in fear of being shown the door had no option but to accept and continue with the appointment on
whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC
304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law
impugned therein amounted to a contract between the Government and the civil servant and thus they
involved his consent. It was observed that in fact it as not in the nature of a free consent between the
agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil
servant had no choice of a bargain on those provisions when joining the service. He could not get it
changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the
employer being placed in a position of authority and strength could always coerce employees to waive
their legal protection and accept, contractual terms at the pains of losing his job.

16. In Ghulam Abbas (supra a number of Management Trainees were ordered to-be absorbed. It was
held that the protection of Labour Laws was available before the Tribunal while dealing with the cases of
workmen. In the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002
SC 101, it was held that even to contract employees could be reinstated in service in appropriate cases if
such appointment had become permanent by efflux of time. A similar view was taken in Abdul Sattar
and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935.

159
17. In the present cases we do not consider it necessary to decide the question whether the judgments
earlier passed by this Court or the Tribunal in the cases of employees of the Bank were in rem or in
personam. However, the principles of distinction between a judgment in rem and a judgment in
personam have already been laid. See tine cases of Federation of Pakistan through Secretary, Ministry of
Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34
(S.C.), Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218, M.A.
Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145, Pit Bakhsh (supra) PLD 1983 SC
684, Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567, Mst. Muni v. Habib Khan PLD 1956 Lah.
403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684.

18. In our view, the conditions of three years length of service with not more than 15 days break
between the consecutive appointments and termination of service imposed by the Tribunal for
regularization of service of employees are quite reasonable and are also in line with the' policy decisions
taken by the Bank itself from time to time. The employees woke up after a deep slumber of more than a
decade to seek redress of their grievances. Therefore, it would be unfair and inequitable to grant them
monetary hark-benefits of service from the dates of their initial appointment.

19. The employees whose appeals have been dismissed by the Tribunal as time-barred fall in two
categories. The Civil Petitions 1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074,
2077, 2080, 2164, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 are of the first category
in which the appeals against termination from service were dismissed by the Tribunal as time-barred.
The delay was sought to be condoned merely on the ground that the orders of their termination from
service were void ab initio,. The learned counsel for these employees has failed to satisfy us as to how
the orders of termination of service of such employees could be termed as void or without jurisdiction.
In the case of Sarfaraz v. Muhammad Aslam 2001 SCMR 1062, it was held that proceedings against a
void order were required to be initiated within reasonable time. There is no rule of universal application
that in all cases of void orders, question of limitation is to be treated to be a mere 'technicality and a
litigant is entitled to invoke the jurisdiction of a Court or the Tribunal of competent jurisdiction at his
sweet will at any time without showing any exceptional circumstances for the delay. Reference may also
be usefully made' to the cases of Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment
Division and two others PLD 1990 SC 692, Dr. Anwar Ali Sahto (supra) and Abdul Wahid v. Chairman,
Central Board of Revenue, Islamabad and another 1998 SCMR 882. Therefore, the impugned judgment
of the Tribunal dismissing the appeals of these employees as time-barred does not warrant interference
by this Court.

160
20. However, we find that the appeals in Civil Petitions Nos. 1939, 1991, 1992 and 1995 of 2003 falling in
the second category were also dismissed by the Tribunal as time-barred. In these cases, the petitioners
had moved the National Industrial Relations Commission under the Industrial Relations Ordinance, 1969,
for redress of their grievances for regularization/reinstatement in service. The controversy as to the
application of section 2-A of the Act of 1973 remained in a state of fluidity for a considerable period of
time. The Tribunal itself had declined to exercise its jurisdiction in old cases. The matter was resolved by
this Court in the cases of Syed Aftab Ahmed v K.E.S.C. 1999 SCMR 197, Muhammad Afzal v. Karachi
Electric Supply Corporation and 2 others 1999 SCMR 92, Muhammad Yaqub v. Pakistan Petroleum Ltd.
and another 20QO SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines
Corporation, Karachi 2000 SCMR 944 by holding that section 2-A would operate retrospectively.
Therefore, the National Industrial Relations Commission dismissed their petitions whereupon the Bank
passed orders dated 2-7-2002, 30-4-2002 and 29-2-2002 of their termination from service. These
petitioners filed their appeals before the Tribunal on 6-7-2002, 8-6-2002 and 29-4-2002 after filing the
departmental appeals. In the facts and circumstances of these cases, the Tribunal was not justified to
refuse to condone the delay and to dismiss the appeals of these petitioners as barred by time and to
decline them the relief of reinstatement/regularization in service.

21. For the foregoing reasons:---

(i)' The Civil Petitions Nos. 1772, 1789 to 1795, 1839, 1840, 1841 to 1843, 1884 to 1896, 1901,
1910 to 1912, 1916 to 1938, 1944 to 1945, 2002,- 2021 to 2073, 2075 to 2076, 2078 to 2079,
2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177,
2179, 2180, 2182 to 2185, 2449 to 2145, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499
to 2506, 2530 and 2606 of 2003 filed by the employees seeking financial back-benefits and
waiver of conditions of ,regularization/reinstatement are disposed of with the direction to the
National Bank to regularize/absorb them in service with effect from 15-9-2003, subject to the
conditions as laid down in para. 10 of the impugned judgment. The National Bank is directed to
issue them appointment letters within one month. Moreover, previous service rendered by
them with the Bank shall be counted towards retirement/pensionary benefits.

(ii) Civil Petitions Nos.1939, 1991, 1992 and 1995 of 2003 of the employees are converted into
appeals and the same are allowed. Consequently, the impugned judgment of the Tribunal
dismissing their appeals as time-barred is set aside. They are reinstated in service from the date
of their termination with back-benefits. They shall be regularized/absorbed in service by the
Bank with effect from 15-9-2003 in terms of sub-para I) above.

161
 (iii) Civil Petitions Nos. 1909, 1913 to 1915, 1940 to 1942, 1946, 1993 'to 1994, 1996 to 1998,
2074, 2077, 2080, 21.64, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 of 2003
of the employees as well as the Civil Petitions Nos.2188 to 2432 of 2003 filed by the Bank are
dismissed.

M.H./I-96/5 Order accordingly.

162
163
2008 S C M R 1118

[Supreme Court of Pakistan]

Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Moosa K. Leghari, JJ

THE STATE and others----Petitioners

Versus

M. IDREES GHAURI and others----Respondents

164
Criminal Appeals Nos.438 to 442 of 2003, decided on 28th January, 2008.

(On appeal from the judgment, dated 9th January, 2002 passed by the Lahore High Court, Lahore, in
Criminal Appeals Nos.1913, 1914 and 1915 of 2000).

(a) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme
Court as questions raised by both the parties required reappraisal of entire evidence.

(b) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority---Illegal gain, absence of---Effect---

Act of grant of proprietary rights of land without having power of Collector by itself and without proof of
essential ingredients of illegal gain and undue favour would not constitute an offence of corruption and
corrupt .practices within the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999.

165
(c) Criminal trial---

----Essential ingredients---Actus rea and mens rea---Scope---Concept of criminal administration of justice

is based on assumption that criminal act is injurious not just to an individual but to society as a whole---
Violation of criminal law which is built upon constitutional principles of substantial as well as procedural
law, has consequence of punishment---Prosecution in the light of constitutional principle is under heavy
duty to establish violation of criminal law to award punishment---Striding of law to bring action within
its compass is in conflict with the concept of fair treatment---It is primary duty of the court to ascertain
whether alleged offence was outcome of an act which was in violation of some law which can be termed
as actus rea of the crime (guilty act) and if this essential element of crime is missing, the breach may not
be subject to sanction of criminal law---Person who is blamed to have committed an offence if is not
accountable in criminal law for his action, he cannot be subjected to prosecution---Mens rea (guilty
mind) is another essential component of crime without proof of which a person cannot be held guilty of
an offence and similarly without proof of concurrence to commit crime, offence is not complete---In
addition to such basic components of crime, harm caused in consequence to an act is also considered
essential element of crime because act, if is harmless, it may not constitute a crime.

(d) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority--Object and scope---Prosecution,

duty of---Misuse of authority in general, .means wrong and improper exercise of authority for the
purpose not intended by law---In order to prove charge of misuse of authority, at least two basic
ingredients i.e. mens rea and actus rea of crime have to be necessarily established and in case any one
of them is found missing, offence is not made out---Mens rea in context to misuse of authority means to
act in disregard of law with conscious knowledge that act was being done without authority of law and

166
except in case of strict liability, element of mens rea is necessary constituent of crime---Offence of
corruption and corrupt practices within the meaning of section 9 (a)(vi) of National Accountability
Ordinance, 1999, is not an offence of strict liability, therefore, use of. authority without object of illegal
gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a
deliberate act to constitute an offence---Mens rea for an offence under S. 9(a)(vi) of National
Accountability Ordinance, 1999, is found in two elements i.e. conscious misuse of authority and illegal
gain or undue benefit---In absence of any one of such basic components of crime, misuse of authority is
not culpable---Prosecution must establish mens rea and actus reus of crime to establish charge---
Without proof of such elements of crime, mere misuse of authority has no penal consequence.

(e) National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)-Expression "corruption and corrupt practices"---Meaning---Corruption is an act which is done

with intent to give some advantage inconsistent with law and wrongful or unlawful use of official
position to procure some benefit or personal gain---Expression corrupt practices is series of
depraved/debased/morally degenerated acts.

(f) National Accountability Ordinance (XVIII of 1999)---

---Ss. 9(a)(vi) & 14(d)---Misuse of authority---Shifting of onus to accused---Principle--Unless prosecution

successfully discharges initial burden of proving allegation in a reasonable manner, accused cannot be
called to disprove charge by raising presumption of guilt.

167
(g) National Accountability Ordinance (XVIII of 1999)---

----S.9(a)(vi)---Misuse of authority---Illegal gain/undue benefit---Proof---No direct or circumstantial

evidence was brought on record to suggest that accused exercised his power for consideration of illegal
gain or undue benefit for himself or for any other person---Effect---Such case would not fulfil test of
S.9(a)(vi) of National Accountability Ordinance, 1999, to justify criminal prosecution.

(h) National Accountability Ordinance (XVIII of 1999)---

----S. 14(d)---Assets disproportionate to known sources of accused---Presumption---Prosecution of a

person without distinction of criminal and civil liability in transaction is misuse of process of law and
similarly stretching law in favour of prosecution is unjust and unfair---Courts, without ascertaining true
character of transaction and drawing distinction in civil and criminal liability, must not proceed to raise
presumption of guilt in terms of S.14 (d) of National Accountability Ordinance, 1999.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

168
(i) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(vi) & 10---Reappraisal of evidence---Misuse of authority---Illegal gain or pecuniary advantage-

--Proof---Accused without having powers of Collector, exercised the same and allotted State land to
affectees of a Park---Powers of Collector had been notified in favour of accused subsequently---Accused
was tried for committing offence of misuse of authority---Trial Court as well as High Court convicted and
sentenced accused for committing offence under S. 9 (a) (vi) of National Accountability Ordinance, 1999-
--Validity---Without any evidence of obtaining any illegal gain or pecuniary advantage for himself or for
any other person by dishonest and illegal means, was the result of misconception of law---No basic
elements of an offence of corruption and corrupt practices was found in transaction in question within
the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999---Conviction and sentence awarded
to accused was set aside and he was acquitted of the charge---Appeal was allowed.

(j) Islamic jurisprudence---

----Right to honour---Scope---Right to honour in Islam has been declared a sacred right---Not only
violation of such right is punishable and to be compensated but violation is also to be prevented---On
one hand protection is to be provided to victim and on the other hand, one who violates such right is
made accountable---In criminal administration of justice, this is common principle that in case of liability
with penal or quasi penal consequences, oppressive use of law in respect of honour and reputation of a
person is not justified and denial of safeguard of just and fair treatment must be prevented in larger
interest of justice which is the most fundamental of all rights in Islam and cannot be abridged by any
limitation.

169
(k) National Accountability Ordinance (XVIII of 1999)---

----Preamble---Special law-Scope-Duty of Courts---Protection provided to NAB authorities---Extent---

National Accountability Ordinance, 1999, is a special law and use of same in oppressive manner must be
tested on the touchstone of fundamental right of a person as guaranteed under the Constitution---
Misuse of raw cannot be overlooked or ignored by courts being custodian of the Constitution---Courts
are under legal duty to defend, preserve and enforce rights of people and their constitutional
guarantees---Notwithstanding protection provided to NAB authorities under the law in respect of their
functions, use of power by them in an unbridled manner for prosecution of innocent persons in
disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and courts
must prevent such oppressive use of penal law through judicial determination.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel.

(l) Criminal trial---

----Act done in good faith---Penal consequences---Scope---Act done in good faith, which is not in
violation of criminal law and also is not result of criminal motivation, has no penal consequence---If a
person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mind.

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(m) Jurisprudence---

----Criminal act---Connotation---Violation of criminal law with consequences of some penalty and an

action as a result of criminal motivation is called criminal act---Wrong exercise of power or, an act
without lawful authority which is not result of any bad motivation is not an act actionable in criminal or
administrative law.

Mian M. Ilyas, D.F.G. for the State (in Criminal Appeals Nos.438, 439 and 140 of 2003).

Sardar Muhammad Ishaq Klian, Senior Advocate Supreme Court for Respondent (in Criminal Appeals
Nos.438, 439, 440 of 2003).

Sardar Muhammad Ishaq Senior Advocate Supreme Court for Appellant (in Criminal Appeals Nos.441
and 442 of 2003).

171
Mian M. Ilyas, D.P.G. for the State (in Criminal Appeals Nos.441 and 442 of 2003).

Date of hearing: 28th January, 2008.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.--- These connected Criminal Appeals bearing Nos.439 to 442 of 2003
involving common questions of law and facts have been directed against two separate judgments
rendered on 9-1-2002 by a learned Division Bench of the Lahore High Court, Lahore, in Criminal Appeals
Nos.1913 of 2000 and 1914 of 2000 arising out of two independent references pertaining to the same
transaction, filed by the NAB under section 18 of the NAB Ordinance, 1999, against Major (R) Tariq Javed
Afridi, appellant in Criminal Appeals Nos.441 of 2003 and 442 of 2003 (hereinafter to be called
"appellant") and his co-accused Muhammad Idrees Ghauri, since acquitted.

2. The appellant has questioned the legality of the conviction and sentence awarded to him in the above
references for committing an offence of corruption and corrupt practices under section 9(a)(vi) read
with section 10(a) of the NAB Ordinance, 1999 whereas the State has filed Criminal Appeals Nos.439 and
440 of 2003 for the enhancement of the sentence of the appellant and Criminal Appeal No.438 of 2003
(arising out of Criminal Appeal No.1915 of 2000 before the High Court) against the acquittal of

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Muhammad Idrees Ghauri, co-accused of the appellant and we intend to dispose of all these appeals
together through this single judgment.

3. The charge against the appellant was that he while posted as Managing Director, Cholistan
Development Authority, Bahawalpur, (hereinafter to be referred as the "C.D.A.") by misuse of his official
authority, committed an offence of corruption and corrupt practices within the meaning of section
9(a)(vi) read with section 10(a) of NAB Ordinance, 1999 (hereinafter to be called as Ordinance). The co-
accused of the appellant was tried on the basis of similar charge.

The precise allegation against the appellant was that he having sent a reference to the Board of Revenue
(B.O.R.), Government of Punjab, Lahore for conferment of the powers of Collector under the
Colonization of Government Lands (Punjab) Act, 1912 (hereinafter to be mentioned as "Act") and
without waiting for the formal sanction of B.O.R., proceeded to exercise .the powers of Collector. The
appellant allegedly in collusion with his office Superintendent, Muhammad Idrees Ghouri, acquitted
accused, without the knowledge and permission of B.O.R., created a new Chak No.68-Alif/D.B. under
Colonization of Government Lands (Punjab) Act,' 1912, to accomplish the ulterior motive of making
allotment of State land to the affectees of Lal Sohanra Park with dishonest intention for illegal gain and
pecuniary advantage knowingly that there was no allotment scheme of B.O.R. in operation and ban was
also imposed on the allotment of State land.

4. The charge against the appellant in the Reference (bearing No.22 of 2000), subject-matter of Criminal
Appeals Nos.438, 439 and 441, was framed as under:--

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"Firstly that during the period from July, 1998 to March, 2000, you Major (Retd.) Tariq Javed Afridi, son
of Malik Nadir Shah Afridi, resident of House No.48-A, Street No.16, Cavalry Ground Extension, Lahore
Cantt., above-named accused No.1, while posted as Managing Director, Cholistan Development
Authority, Bahawalpur, in collusion and in connivance with you, Muhammad Idrees Ghouri and
Muhammad Boota, while posted as Superintendent, Cholistan Development Authority, Bahawalpur and
Naib Tehsildar Cholistan Development Authority, Bahawalpur above-mentioned accused Nos.2 and 3
respectively, being holder of public office, knowingly and voluntarily made allotments of the plots which
were under your administrative control, to persons who did not qualify the requisite condition for such
grants as laid down by the Colonization of Government Land (Punjab) Act, 1912, by exercising powers of
Collector under the Colonization of Government Land (Punjab) Act, 1912, which was never conferred
upon you (accused, Major (Retd.) Tariq Javed Afridi), by corrupt, dishonest, illegal means and in abuse of
your position/authority, and thereby you all above-named three accused acted deceitfully, fraudulently
and dishonestly, caused colossal loss to the State exchequer Cholistan Development Authority
Bahawalpur and as such committed the offence of corruption and corrupt practices as defined in section
9 punishable under section 10 of NAB Ordinance, 1999 read with schedule of offences appended to the
NAB Ordinance read with all the relevant provisions of earlier enactments mentioned in its section 35,
within the cognizance of this Court.

Secondly, that you Major (Retd.) Tariq Javed Afridi, above-mentioned accused No.1, in collusion and in
connivance with you, Muhammad Idrees Ghouri and Muhammad Boota, above named accused Nos.2
and 3, being holder of public office as aforesaid, respectively, knowingly and voluntarily allotted
alternate land measuring 20 squares of land which were under your administrative control, to 40
persons, alleged to have been affectees of National Park Lal Sohanra, although they were not genuine
affectees and were not entitled to the same by fraudulently and dishonestly changing the list of
affectees, by corrupt dishonest illegal means and in abuse of your position/authority, and thereby
committed act of corruption and corrupt practices as defined in section 9 and punishable under section
10 and the schedule appended to NAB Ordinance, 1999 read with all the relevant provisions of earlier
enactments mentioned in its section 35 within the cognizance of this Court. And I hereby direct that you,
above-named three accused, be tried by this Court on the aforesaid charge."

5. The Accountability Court at Lahore on conclusion of trial having found the appellant guilty of the
charge under section 9(a)(vi) of the Ordinance, convicted and sentenced him under section 10(a) of the

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said Ordinance, to R.I. for 3 years with a fine of 2.000 million and in default of payment of fine, he was
directed to undergo R.I. for a period of two years. In consequence thereto, the appellant also earned
disqualification in terms of section 15 of the Ordinance for a period of 10 years to hold any public office.
The appeal filed by the appellant in the High Court was partly allowed, in the following manner:--

"For the foregoing discussion, we hold that the trial Court has rightly convicted the appellant for the
offence under section 9(a)(vi) read with section 10(a) of the NAB Ordinance as we uphold this
conviction. As regards the question of sentence, we feel that balance must be struck between undue
harshness and undue leniency. On behalf of the defence a chart has been placed on the record to show
that counting the remissions granted to the appellant from time to time he has undergone sentence of 5
years, 5 months and 26 days. The chart submitted by the prosecution, which is duly attested by the
Deputy Superintendent of District Jail, Lahore shows that till 20-9-2001 the appellant had undergone
sentence of 4 years, 3 months and 17 days. Thereafter he remained behind the bars for a period of more
than three months. As a result of conviction the appellant has already lost his job and otherwise stands
disqualified for a period of 10 years to hold any public office as provided under section 15 of the
Ordinance. Therefore, we feel that the sentence already undergone by the appellant is sufficient to
meet the ends of justice. So far as the sentence of fine is concerned, the prosecution has not been able
to show that the appellant had received any pecuniary benefit or advantage on the process of the
conferment of proprietary rights of execution of conveyance deeds in favour of allottees. Further there
is no evidence on the record to show that the appellant is living beyond his known sources of income,
hence the sentence of fine is set aside. The appeal is partly allowed with the above modification in the
quantum of the appellant's sentence. He will be released forthwith from the jail if not required to be
detained in any other criminal case."

6. In the connected Reference (Reference No.21 of 2000), out of which Criminal Appeals Nos.440 and
442 of 2003 have arisen, the charge was framed as under:---

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"That during the period from 13th July, 1998 to 20th March, 2000, you Major (Retd.) Tariq Javed Afridi
son of Malik Nadir Shah Afridi, resident of House No.48-A, Street No.16, Cavalry Ground Extension,
Lahore Cantt., above-named accused, while posted as Managing Director, Cholistan Development
Authority, Bahawalpur, being holder of Public Office, knowingly and voluntarily granted 559 proprietary
rights, 78 Conveyance Deeds and 168 Conveyance Deeds about the lands/plots mentioned therein and
which were under your administrative control, in violation of Notification dated 19-3-1995, issued by the
Secretary Colonies Department Government of the Punjab, by exercising powers of Collector which
were never conferred upon you under the Colonization of Government Lands (Punjab) Act, 1912, by
corrupt dishonest illegal means and in abuse of your position/authority and thus, allotted deceitfully and
dishonestly, and thereby caused colossal loss to the State exchequer, Cholistan Development Authority,
Bahawalpur, and as such committed the offence of corruption and corrupt practices within the meaning
of section 9, and punishable under section 10 of NAB Ordinance, 1999 and schedule appended thereto
read with all the relevant provisions of earlier enactment mentioned in its section 35, within the
cognizance of this Court."

7. The trial Court also having found the appellant guilty of the charge in this reference, convicted and
sentenced him as under:--

"R.I. for 6 years with a fine of Rs.80,00,000 under section 10(a) of the Ordinance and in default of
payment of fine, he was directed to undergo R.I. for a period of three years under section 9(a)(vi) of the
NAB Ordinance, 1999, read with section 10(a) of the Ordinance and in default of payment of fine, he was
directed to undergo R.I. for a period of three years and also was disqualified under section 15 of the
Ordinance for a period of 10 years to seek any public office etc. with benefit of section 382-B, Cr.P.C."

8. The appellant on dismissal of the appeals preferred by him against the conviction and sentence
awarded to him by the trial Court before the High Court, has filed two separate appeals before this
Court and State also being not satisfied with the judgment of the High Court assailed the same before
this Court. Leave was granted in this connected appeals vide order, dated 23-4-2003 as under:--

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"Through the captioned petitions leave to appeal is sought against a common order, dated 19th of
January, 2002, whereby a learned Division Bench of the Lahore High Court upheld the conviction of
petitioner Major retired Tariq Javed Afridi for offences under section 9(a)(vi) read with section 10(b) of
the NAB Ordinance but reduced his sentence to already undergone by him and the sentence of fine was
set aside.

The precise allegation levelled against petitioner Major retired Tariq Javed Afridi is that in his capacity as
M.D. Cholistan Development Authority, Bahawalpur, he had granted proprietary rights/conveyance
deeds in favour of as many as 800 persons while exercising powers of Collector which were never
conferred upon in terms of Colonization of Government Lands (Punjab) Act, 1912, and in violation of
Notification dated 19th of March, 1995. Case of the petitioner before the Accountability Court was that
cases for the grant of proprietary rights were pending since long, and he had decided the dame in a
bona fide manner on the basis of reports submitted to him from time to time by the concerned revenue
field staff and the Colonization Officer/Collector who had endorsed their recommendations in favour of
each allottee. As regards the exercise of Collector's powers by him, petitioner's assertion was that he
had applied for the conferment of such powers by the Board of Revenue, and during the interregnum,
he had been exercising those powers on the assumption that conferment of power was merely a
formality which ultimately had to be granted in his favour. It was contended that cases of entitlement of
805 persons had already been determined since 1980, and only consequential orders for the execution
of sale-deeds remained to be accomplished. On the point of loss to the national exchequer, it was
contended that admittedly an amount of Rs.70 million approximately was realized from aforesaid
persons.

Kh. Haras Ahmed, Advocate Supreme Court for the petitioner Major retired Tariq Javed Afridi contends
that it was merely an irregularity and petitioner's act does not fall within the purview of section .9 of the
NAB Ordinance at the most, he could have been proceeded under the Efficiency and Discipline Rules. He

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next argued that petitioner did not cause any wrongful loss to any institution or authority and did not
derive any pecuniary advantage for himself.

After hearing the learned counsel in all these petitions, and going through judgments of both the Courts
below, we are of the view that questions raised in the petitions filed by Kh. Haras Ahmed, Advocate
Supreme Court and Mr. Shaukat Javed Malik, Advocate Supreme Court (Criminal Petitions Nos.63, 61,
64, 146 and 147-L of 2002) require reappraisal of the entire evidence, therefore, we grant leave to
appeal in these petitions.

As regards Criminal Petition No.170-L of 2002 Hussain and 74 others v. Major Retired Tariq Javed Afridi
and another., let it be heard along with said petitions in which leave to appeal has been granted today."

9. Mian Muhammad Ilyas, learned Deputy Prosecutor-General, in support of Criminal Appeals Nos.438
to 440 of 2003, filed by State has contended that the High Court having taken a wrong view of the
evidence, reduced the sentence of the appellant in improper exercise of jurisdiction and asserted that in
the cases of corruption and corrupt practices falling under section 9(a)(vi) of the Ordinance, the
insistence on direct evidence of high standard is not the requirement of law rather on discharge of initial
burden by the prosecution, the onus is shifted to the accused to disprove the allegation and on his
failure, Court can raise a presumption of his guilt under section 14(d) of the Ordinance and that once an
accused facing the charge of corruption and corrupt practices is found guilty, the question whether the
evidence of corruption was direct or circumstantial may not be a relevant consideration or a valid
reason for taking a lenient view in the matter of sentence. Learned Deputy Prosecutor General argued
that apart from the admission of appellant the prosecution has brought ample evidence, oral as well as
documentary on the record to establish the charge and in the light thereof, the High Court in appeal in
absence of very strong mitigation, was not at all justified to reduce the sentence awarded to the
appellant by the trial Court. He asserted that the defence plea of appellant to have not acted in bad
faith, would seriously reflect upon his bona fide as nothing is said to be done or believed in good faith,
which is done or believed without due care and attention, therefore, the exercise of the power of the

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Collector by the appellant knowingly that he could not exercise such powers under the law, would give
rise to a legitimate presumption that he acted for an ulterior motive and extraneous consideration. In
short, the learned Deputy Prosecutor General argued that in the cases under the NAB Ordinance, in
absence of any proof of 'bona fide, the presumption of guilt can be raised on the basis of evidence
available on record and nominal sentence in such cases, would defeat the purpose and spirit of law.

10. Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court, counsel for the appellant,
on the other hand, has contended that the trial Court as well as the High Court without proper
appreciation of the evidence available on record, by misinterpreting and misconstruing the provisions of
section 14(d) of NAB Ordinance, raised a wrong presumption of guilt of the appellant and argued that
there was no evidence direct or circumstantial of an illegal gain or pecuniary advantage which are
essential component of an offence under section 9(a)(vi) of the Ordinance. Learned counsel submitted
that since an act in absence of element of bad faith and mens rea is not a crime therefore, the
presumption of guilt under section 14(d) of the Ordinance, could not be raised for mere reason that
appellant without formal authority of law, exercised the power of Collector under Colonization of
Government Lands (Punjab) Act, 1912 and forcefully argued that High Court due to the misconception of
law, despite having come to the conclusion that appellant did not obtain any illegal gain or pecuniary
advantage, was misled in forming the opinion that he was guilty of committing an offence under section
9(a)(vi) of the Ordinance. Learned counsel added the BOR having not reversed the order passed by the
appellant by virtue of which proprietary rights were given to the affectees of Lal Sohanra Park and
conveyance deeds were executed in their favour, has virtually rectified the irregularity if any in the said
orders with the result that the charge, stood vanished and submitted that the appellant on the basis of
reports given by the subordinate staff proceeded to pass the orders in the cases, which were pending
for grant of proprietary rights since long with the sole object to bring to an end the sufferings of the
affectees of Lal Sohanra 'Park, but unfortunately the trial Court as well as the High Court taking an
extreme perverse view of the law and facts of the case, held that exercise of Dower of Collector without
formal approval of BOR was an act of misuse of authority in terms of section 9(a)(vi) of the Ordinance.

11. The leading facts of the case are that appellant while discharging the functions of Managing Director
of Cholistan Development Authority (C.D.A.) also exercised the powers of Collector under the
Colonization of Government Lands (Punjab) Act, 1912 without formal conferment of such powers in
consequence to which he was put to face the criminal prosecution for the charge of corruption and

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corrupt practices. The defence plea of the appellant was that in view of the past practice, he being
under the bona fide impression that M.D. C.D.A., was competent to exercise the power of Collector
exercised such powers,' which were also subsequently conferred on him, therefore, he committed no
offence. In the light thereof, the real question for determination would be whether the appellant
assumed the powers of Collector with mala fide intention and for some ulterior motive or he did
exercise the power of Collector in good faith without any consideration of illegal gain or undue benefit.
There is no cavil to the proposition that an illegal order in a particular set of fact, may have the penal
consequence but the question required to be adhered in the present case, was as to whether the act of
grant of propriety rights of the land without the power of Collector, by itself would constitute an offence
of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance without
proof of essential ingredient of illegal gain and undue favour to constitute such an offence and the
answer would certainly be in the negative. The concept of criminal administration of justice is based' on
the assumption that criminal act is injurious not just to an individual but society as a whole and violation
of the criminal law which is built upon constitutional principles of the substantial as well as procedural
law, has the consequence of punishment, therefore, the prosecution in the light of constitutional
principle is under heavy duty to establish the violation of criminal law to award the, punishment. The
striding of law to bring an action within its compass is in conflict to the concept of fair treatment,
'therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act
in violation of some law which can be termed as actus reus of the crime (guilty act) and if this essential
element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a
person who is blamed to have committed an offence if is not accountable in criminal law for his action,
he cannot be subject to the prosecution. The mens rea (guilty mind) is another essential component of
crime without proof of which a person cannot be held guilty of an offence and similarly without the
proof of concurrence to commit the crime, the offence is not complete. In addition to the ct3ve basic
components of a crime, the harm caused in consequence to an act is also considered an essential
element of a crime because the act if is harmless it may not constitute a crime. The above components
of an offence of corruption and corrupt practices are not traceable in the series of transaction in the
present case.

12. The charge against the appellant was that he by misuse of his authority, committed an offence of
corruption and corrupt practices within the meanings of section 9(a)(vi) punishable under section 10(a)
of the Ordinance. The misuse of authority in general, means wrong and improper exercise of authority
for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at
least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established
and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in
context to the misuse of authority means to act in disregard of the law with the conscious knowledge
that act was being done without authority of law and except in the case of strict liability, the element of

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mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the
meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of
authority without the object of illegal gain or pecuniary benefit or undue favour to any other person
with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an
offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e. conscious misuse of
authority and illegal gain or undue benefit and in absence of anyone of these basic components of
crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and
actus reus of the crime to establish the charge, as without proof of these elements of crime, mere
misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not
been as such defined in the Ordinance but in general terms, the corruption is an act which is done with
intent to give some advantage in consistent with law and wrongful or unlawful use of official position to
procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/
debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless
the prosecution successfully discharges the initial burden of proving the allegation in a reasonable
manner, the accused cannot be called to disprove the charge by raising a presumption of guilt. In the
present case, the NAB authorities on the basis of order passed by the appellant by virtue of which land
was allotted to the affectees of Lal Sohanra Park, launched prosecution against the appellant for the
charge of committing an offence under section 9(a)(vi) of the Ordinance whereas the appellant in his
defence plea asserted that he having found that the rights of allottees were acknowledgeable in law,
exercised the powers of Collector in a good faith with bona fide intention and perusal of record would
show that no direct or circumstantial evidence was brought on record to suggest that appellant
exercised the power of Collector for the consideration of an illegal gain or an undue benefit for himself
or for any other person and consequently, the case would not fulfil the test of section 9(a)(vi) of NAB
Ordinance to justify the criminal prosecution.

13. The allegation without specific evidence that appellant in connivance with his co-accused acted f

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PLD 2007 Supreme Court 642

Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal Sardar Muhammad Raza Khan,
Faqir Muhammad Khokhar, M. Javed Buttar, Nasir-ul-Mulk and Rana Fayyaz Ahmed, JJ

PAKISTAN MUSLIM LEAGUE (N) through Khawaja Muhammad Asif, M.N.A. and
others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Interior and others---

Respondents

Constitutional Petitions Nos. 48 and 49 of 2007, decided on 23rd August, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 15---Freedom of movement---Right to enter in the country cannot be denied but a citizen,
can be restrained from going out of the country.

Mian Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 rel.

(b) Constitution of Pakistan (1973)---

182
----Art. 184(3)---Interpretation of Art. 184(3) of the Constitution---Principles---While
interpreting Article 184(3) .of the Constitution the interpretative approach should not be
ceremonious observance of the rules or usages of the interpretation but regard should be had to
the object and purpose for which the Article is enacted i.e. the interpretative approach must
receive inspiration from the triad of provisions which saturate and invigorate the entire
Constitution namely the Objectives Resolution (Article 2-A), the fundamental rights and the
directive principles of State policy so as to achieve democracy, tolerance, equity and social
justice according to Islam.

(c) Constitution of Pakistan (1973)---

----Art. 184(3)---Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution-

--Not dependent only at the instance of aggrieved party---Scope---Exercise of powers by
Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved
party" in the context of adversary proceedings---Traditional rule of locus standi can be dispensed
with and procedure available in public interest litigation can be made use of, if it is brought to
the Court by a person acting bona fide.

(d) Constitution of Pakistan (1973)---

----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution to enforce

Fundamental Rights---Scope and extent---Principles---Provisions of Article 184(3), provide
abundant scope for the enforcement of the Fundamental Rights of an individual or a group or
class of persons in the event of their infraction and it would be for the Supreme Court to lay
down the contours generally in order to regulate the proceedings of group or class actions from
case to case.

(e) Constitution of Pakistan (1973)---

----Art. 184(3)---Invocation of Jurisdiction of Supreme Court under Art.184(3) of the

Constitution---Requirement of existence of an aggrieved party---Scope---Under Article 184(3) of
the Constitution there is no requirement that only an aggrieved party can press into service this
provision---Supreme Court can entertain a petition under Article 184(3) at the behest of any
person.

183
(f) Constitution of Pakistan (1973)---

----Art. 184(3)---Interpretation and scope of Art.184(3) of the Constitution---Article 184(3) is

remedial in character and is conditioned by three prerequisites, namely that there is a question of
public importance; that such a question involves enforcement of fundamental right, and that the
fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution.

(g) Constitution of Pakistan (1973)---

----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the

Constitution--Question of `public importance'---Scope and condition---Not every question of
public importance which can be entertained by Supreme Court, but such question should relate to
the enforcement of Fundamental Rights.

(h) Constitution of Pakistan (1973)---

----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the

Constitution---`Disputed questions of facts'---Scope and extent---Even the disputed questions of
facts which do not require voluminous evidence can be looked into where Fundamental Right
has been breached---Where however, intricate disputed questions of facts involving voluminous
evidence are involved Supreme Court will desist from entering into such controversies.

(i) Constitution of Pakistan (1973)---

----Arts. 184(3) & 199---Jurisdiction of Supreme Court under Art:184(3) of the Constitution is
not bound by procedural trappings and limitations mentioned in Art.199 of the Constitution---
Language of Art.184(3) does not admit of the interpretation that provisions of Article 199 stood
incorporated in Article 184(3) of the Constitution.---Supreme Court while dealing with a case
under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article
199, nor by the limitations mentioned in that Article for exercise of power by the High Court in a

184
case.

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v.
Government of Pakistan PLD 1994 SC .621; Shahida Zahir Abbasi v. President of Pakistan PLD
1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793;
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(j) Constitution of Pakistan (1973)---

----Art. 184(3)---Invocation of Art.184(3) of the Constitution---Element of `public importance' is

sine qua non---Adjective `public' necessarily implies a thing belonging, to people at large, the
Nation, the State or a community as a whole---Issues arising in a case, cannot be considered as a
question of public importance, if the decision of the issues affects only the rights of an individual
or a group of individuals---Issues, in order to assume the character of public importance must be
such that its decision affects the rights .and liberties of people at large---If a controversy is raised
in which only a particular group of people is interested and the body of the people as a whole or
the entire community has no interest, it cannot be treated as a case of public importance---
Principles.

(k) Constitution of Pakistan (1973)---

----Part II, Chap.1 [Arts.8 to 28]---`Political justice'---Concept of `political justice' floats in

Chap. 1 of Part II of the Constitution---Political justice' is very significant and it has been placed
in the category of `Fundamental Rights'---Political parties have become a subject-matter of a
Fundamental .Right in consonance with the said provision in the Objectives Resolution---
Objectives Resolution provides that principles of democracy as enunciated by Islam are to be
fully observed.

Benazir Bhutto v. Federation of Pakistan PLD-1988 SC 416 ref.

(l) Constitution of Pakistan (1973)---

185
----Art. 184(3)---Invocation of Art.184(3) of the Constitution---`Political justice'---Matter of
public importance---Concept of `political justice' deserves consideration which would be a factor
on the basis whereof the jurisdiction as conferred upon the Supreme Court under Art.184(3) of
the Constitution can be exercised.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref.

(m) Undertaking---

----Agreement---Distinction---Undertaking cannot be equated to that of an agreement---

Principles.

An undertaking cannot be equated to that of an agreement which has its own peculiar
characteristics, connotations, import and significance. The striking difference between the two
would be the element of enforcement. The agreement can be enforced legally but an undertaking
cannot because it has got no legal sanctity behind it.

(n) Constitution of Pakistan (1973)---

----Arts. 184(3) & 199---Constitutional jurisdiction---Scope---Such jurisdiction is not available

to enforce the contractual rights and obligations of the parties.

1990 MLD 563; PLD 1992 Lah.68; 1990 CLC 2007; 1990 CLC 560; PLD 1987 Lah. 262; PLD
1986 Quetta 187; PLD 1986 Quetta 181; PLD 1973 Kar. 878; 1971 DLC 250; PLD 1966 Dacca
576; 1985 CLC 2805; NLR 1978 Civ. 1.114; PLD 1969 Dacca 779; PLD 1969 Lah. 823; 1968
SCMR 1136; 1969 DLC 449; 21 DLR 394; 1970 DLC 387; 22 DLR 235; PLD 1962 SC 108;
1962 (2) PSCR 87; 14 DLR (SC) 102; PLD 1958 SC 267; PLR 1958 (2) WP 1369; PLD 1959
SC 147; PLR 1959(2) WP 501; 1959 (1) PSCR 34; 11 DLR (SC) 260; AIR 1953 Punj. 239; AIR
1952 Raj.151; ILR (1951) 1 Raj.755; AIR 1952 Viudh Pra 13 and ILR(195 L)1 Raj 496 ref.

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(o) Constitution of Pakistan (1973)---

----Art. 15---Freedom of movement---Every citizen has undeniable right vested in him as

conferred under Art.15 of the Constitution to go abroad and return back to Pakistan without any
hindrance and restraint---Undertaking -given by a citizen not to come back to Pakistan having no
constitutional legitimacy, such citizen cannot be prohibited from coming to Pakistan---
Reasonable restrictions---Powers of Executive---Scope and extent--Principles.

Every citizen has an inalienable right to enjoy the protection of law and to be treated in
accordance with law and in particular no action detrimental to the life, liberty, body, reputation
or property of any person shall be taken except in accordance with law. No action detrimental to
such Fundamental Rights can be initiated except in due course of law.

Citizens of Pakistan can return to their country as no restraint can be placed on a citizen of
Pakistan to return to his country. Undertaking given by a citizen not to come back to Pakistan
had no constitutional legitimacy, as such citizen cannot be prohibited from coming to Pakistan.
Every citizen has undeniable right vested in him as conferred under Article 15 of the
Constitution to go abroad and return to Pakistan without any hindrance and restraint but it must
be kept in view that it is neither absolute nor unqualified as is indicative from the language
employed in Article 15 of the Constitution as a specific mention has been made "subject to any
reasonable restriction un-posed by law in the public interest", meaning thereby that such right is
subject to the relevant law which is in existence at relevant time but an action which is mala fide
or colourable is not regarded as action in accordance with law. Similarly, action taken upon
extraneous or irrelevant considerations is also not action in accordance with law. Therefore
action taken upon no ground at all or without proper application of the mind of an authority
would also not qualify as an action in accordance with law and would, therefore, have to be
struck down as being taken in an unlawful manner.

There is no inherent power in the Executive, except what has been vested in it by law, and that
law is the source of power acid duty. The structure of the machinery of government, and the
regulation of the powers and duties which belong to the different parts of this structure are
defined by the law, which also prescribes, to some extent the mode in which these powers are to
be exercised or those duties performed. From the all-pervading presence of law, as the sole
source of governmental powers and duties, there follows 'the consequence that the existence or
non-existence of a power or duty is a matter of law and not of fact, and so must be determined by
reference to some enactment or reported case. Consequently there are no powers or duties

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inseparably annexed to the Executive Government. It cannot be argued that a vague, indefinite
and wide power has been vested in the Executive to invade upon the proprietary rights of citizens
and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere
executive order. This is not the position in law. Any invasion upon the rights of citizens by
anybody no matter whether by a private individual or by a public official or body, must be
justified with reference to some law of the country. Therefore, executive action would
necessarily have to be such that it could not possibly violate a Fundamental Right. The only
power of the; Executive to take action would have to be derived from law and the law itself
would not be able to confer upon the executive any power to deal with a citizen or other persons
in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function
strictly within the sphere allotted to them and in accordance with law. No Court or Authority is
entitled to exercise power not vested in it and all citizens have an inalienable right to be treated
in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law
and Constitution, is liable to be struck down.

It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way
as a Fundamental Right. For it is an established principle of British Jurisprudence which may be
treated as constituting a part of the Pakistan law also, that no member of the executive can
interfere with the liberty or a property of a subject except on the condition that he can support the
legality of his action before a Court of Justice.

PLD 1973 SC 49; PLD 1969 SC 14; 21DLRE (SC) 1; PLD 1990 Lah. 432; 1990 MLD 1468;
PLD 1989 Lah. 175; 1988 CLC 545; 1988 Law Notes 247; 1985 PCr.LJ 360; PLD 1976 Kar.
1257; PLD 1967 Dacca 607; 19 DLR 689; 1990 CLC 1772; 'AIR 1931 PC 248; A.K. Gopalan v.
State of Madras AIR 1950 SC 27; 61 Law Journal 171 (203); Kent v. Dulles 357 US 116;
Aseerwatham v: Permanent Secretary; Ministry of Defence and External Affiars and others
Journal of International Commission of Juristis; Vol. VI, No.2, p.319 and Winter (1965 Part) and
Satwant Singh Sawnney v. The Government of India Journal of the International Commission of
Juristis, Vol. VIII, No.2, p.134 ref.

(p) Constitution of 1'nkistan (1973)---

----Part II, Chap.1 [Arts. 8 to 28]---Fundamental Rights---Infringement and curtailment of---

Scope---Principles---Public interest---No infringement or curtailment in any Fundamental Right
can be made unless it is in the public interest and in accordance with valid law---Reasonable
restriction---Concept---Scope.

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The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory
manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal
principle has always to be borne in mind that these guarantees to individuals are subject to the
overriding necessity or interest of community. A balance has to be struck between these rights of
individuals and the interests of the community. If in serving the interests of the community, an
individual or number of individuals have to be put to some inconvenience and loss by placing
restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be
considered to be unreasonable.

No infringement or curtailment in any Fundamental Right can be made unless it is in the public
interest and in accordance with valid law. No doubt that reasonable restriction can be imposed
but it does not mean arbitrary exercise of power or unfettered or unbridled, powers which surely
would be outside the scope of "reasonable restriction" and it must be in the public interest.

A reasonable restriction is one which is unposed with due regard to the public requirement which
it is designed to meet. Anything which is arbitrary or excessive will of course be outside the
bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the
subject in relation to the advantage which the public derives, it is necessary that the Court should
have a clear appreciation of the public need which is to be met and where the statute prescribes a
restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the
sense of not bearing excessively on the subject and at the same time being .the minimum that is
required to preserve the public-interest.

Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472 and East
anal West Steamship Co. v. Pakistan PLD 1958 SC (Pak) 41 ref.

(q) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts, 8 to 28]---Fundamental Rights---Characteristic.

Fundamental Rights guaranteed by the Constitution are not meant merely to be pious
enunciations of certain principles supposed to be the basis of the Constitution. The characteristic
of a Fundamental .Right is its paramountcy to ordinary State-made laws. They are immune from
the pale of legislative enactments and executive actions. They constitute express constitutional

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provisions limiting legislative power and controlling the temporary will of a majority by a
permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of the
Fundamental Rights is protected by Article 8(2) of the Constitution which prohibits the state
which includes the Legislature not to make any law by which awry Fundamental Right may 'be
curtailed or taken away and if any law is made to this effect then to the extent of such
contravention it shall be void. It is not liable to be abridged by any legislative or executive orders
except the extent provided in Art.233 of the Constitution. Fundamental Rights cannot be waived.
No right which is based on public policy, can be waived. Citizens of Pakistan cannot themselves
waive out of the various Fundamental Rights which the Constitution grants them. The
Fundamental Rights are not to be road as if they included the words subject to a contract to the
contrary'.

AIR 1952 Punj. 309; ILR 1952 Punj. 381; AIR 1950 SC 27; 1950 SCR 88, PLD 1989 Kar.404;
AIR 1951 Hyd. 1; AIR 1951 SC 41; 1950 SCR 869 and PLD 1965 SC 527 ref.

(r) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---No Fundamental right can be

surrendered yr waived by means of any agreement or undertaking.

(s) Constitution of Pakistan (1973)---

----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---Concept---Scope.

The idea behind the concept of Fundamental Rights is that the preservation of certain basic
human rights against State interference is an indispensable condition of free society. The
paramountcy to State-made laws is the hallmark of a Fundamental Right. It follows that the aim
of having a declaration of Fundamental Rights is that certain elementary rights of the individual
such as his right to life, liberty, freedom of speech, freedom of faith acid so on, should be
regarded as inviolable under all conditions and that the shifting majorities in the Legislatures of
the country should not be able to tamper with them. Absolute and unrestricted individual rights
do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty.
The collective interests of the society, peace and security of the State and the maintenance of
public order are of vital importance in any organized society. Fundamental Rights have no real

190
meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of
the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be
maintained between the two contending interests at stake; one, the individual liberties and the
positive rights of the citizen which are declared by the Constitution to be Fundamental, and the
other, the need to impose social control and reasonable limitations on the

enjoyment of those rights in the interest of the collective good of the society.

AIR 1951 All. 257; ILR (1951) 1 All. 269; AIR 1950 SC 27; 1950 SCR 88; AIR 1952 Mad. 613
and PLD 1965 Lah. 642 ref.

(t) Constitution of Pakistan (1973)---

----Art. 15---Interpretation and scope of Art.15 of the Constitution---Freedom of movement---

Reasonable restriction---Principles.

The language employed in Article 15 of the Constitution, is free from any ambiguity and no
scholarly interpretation would be needed. "In interpreting a provision of a Constitution the
widest construction possible in its .context, should be given according to the ordinary meaning of
.the words used, and the general words should be held to extend to all ancillary and subsidiary
matters. A Constitution is not to be interpreted in a narrow or technical manner, and a
construction which leads to a legal vacuum is to be avoided".

Right conferred upon a citizen is neither absolute nor unlimited but subject to "reasonable
.restriction" imposed by law in the public interest which means that this right can be restricted by
imposing "reasonable restriction of law" in the public interest. In other words the State has power
to impose reasonable restrictions on the right of freedom of movement of a free citizen where
such restriction is necessary in the interests of the general public. A restriction is unreasonable if
it is for an indefinite or an unlimited period or a disproportionate to the mischief sought to be
prevented or if the law imposing the restrictions has not provided any safeguard at all against
arbitrary exercise of power.

Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely
throughout the country and to reside and settle in any part thereof. The right to enter in the

191
country cannot be denied but a citizen can be restrained from going out of the country. Citizens
of Pakistan have a constitutional right and a sacred prerogative to enter and remain in Pakistan.

Where a fundamental right is sought to be restricted by any law, care should be taken that it
provides sufficient safeguards against casual, capricious or even malicious exercise of the
powers conferred by, it. In this respect it must he remembered that though a law may not in terms
restrict the exercise of certain right under this Article yet if it has the effect of -doing so, it will
be open to challenge. In the case of citizens of Pakistan, there is a fundamental right to enter
Pakistan from outside and, therefore, airy restriction of such right will be an invasion of this
Article. The imposition of restrictions by requirement of permits, etc., is justified as a
reasonable-restriction in the public interest. But a law which subjects a citizen to the extreme
penalty of a virtual forfeiture of a citizenship upon conviction for a mere bleach of the permit
regulations or upon, a reasonable suspicion of having committed such a breach can hardly be
justified upon the ground that it imposes a reasonable restriction upon the fundamental right to
reside and settle in the country, in the interests of the public.

PLD 1959 SC 470; PLR 1960(1) W.P. 253; 11 DLR (SC) 423; 1959 (2) PSCR 275; PLD 1974
Kar. 345; AIR 1953 Assam. 77; ILR (1942)4 Assam 126; 1953 CriL. Jour 657; AIR 1953 Punj.
52; ILR 1952 ' Punj. 362; 1953 Cril. Jour. 421; PLD 1958 Lah 929; PLR .1959 (1)W.P.528; AIR
1964 SC 416; PLD 1957 Lah.388; PLR 1957(1) W.P. 1062; AIR 1961 SC 294; 17 DLR 553;
Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; AIR 1961 SC 293; AIR
1952 SC 115; 1952 SCR 572; PLD 1969 Lah. 908; PLR 1969 (2) W.P.298; 22 DLR (W.P.) 57;
AIR 1952 All. 257; .ILR (1952) 1 All 513; AIR 1952 Cal. 837; 1952 Cri L Jour 1683; AIR 1953
Nag: 185; ILR 1951. Nag. 328; Leo Pfeffer, p. 238; AIR 1954 SC 229 and 1954 SCR 933 ref.

(u) Constitution of Pakistan (1973)---

----Arts. 184(3) & 15---Universal Declaration of Human Rights, Arts. 9 &, 13---International
Covenant on Civil and Political Rights, Art.12(4)---Freedom of movement---`Legal restrictions
in public interest'---Scope---Laches---Effect---Undertaking given by a citizen of Pakistan not to
come back to Pakistan cannot be equated with legal restrictions imposed in `public interest'---
Fundamental rights cannot be denied or infringed or curtailed on the ground of laches---
Principles.

Fundamental Rights cannot be denied or infringed or curtailed on the ground of laches. It

depends upon a citizen to exercise such rights when he so wishes and no time limit can be

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prescribed for claiming such rights because the. Fundamental Rights enshrined in the
Constitution are always considered paramount and cannot be curtailed, usurped or infringed by
any legislative device or executive measurement, however, it is subject to any reasonable
restriction that may be imposed by law in the public interest. The undertaking given by a citizen
not to come back to Pakistan cannot be equated to that of "legal restrictions imposed in the
public interest".

The Fundamental Right granted by Article 15 of the Constitution is backed by international

norms. Article 9 of the Universal Declaration of Human Rights declares: that "No one shall be
subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has
the right to leave any country, including his own, and to return to his country." The Human
Rights Declaration itself draws its inspiration in this regard from the Magna Carta, which, as
early as 121.5, proclaimed: "No man shall be outlawed or exiled ... except by the lawful
judgment of his equals or by the law of the land". Although the Human Rights Declaration is not
a legally binding treaty, its provisions are considered customary international law and binding, as
such, on all member States of the United Nations and therefore on Pakistan. Although the
International Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal force to
many of the rights proclaimed in the human Rights Declaration, does not expressly prohibit
exile, it codifies the right to return. It's Article 12(4) states that no one shall be arbitrarily
deprived of the right to enter his own country". The substance of Article 12(4) implicitly
prohibits forcible exile, since an order that would force a person to leave his country would in
effect restrict his return to the country and therefore would be in violation of this Article. It is
evident that both national and international law forbid forcible exile. For whatever reason, a
government cannot force individuals to leave their own country or prohibit their return.
Notwithstanding national and international efforts for outlaw political exile, the practice persists
in authoritarian and politically under developed societies as an undesirable .legacy of ancient
times.

No restriction can be imposed on the right of citizens of Pakistan to enter into Pakistan who had
given undertaking not to come back to Pakistan, They can come to Pakistan whenever they so
desire.

The Natives' right to return by Dr. Tariq Hassan ref.

Fakhr-ud-Din G. Ebrahim, Senior Advocate Supreine Court, Malik Muhammad Rafique

Rajwana, Advocate .Supreme Court, Zain Sheikh, Advocate Supreme Court and M.S. Khattak,
Advocate-on-Record for Petitioners (in both cases).

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Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court and Arshad Ali Chaudhry,
Advocate-on-Record for Respondent No.1 (in C.P.No.48 of 2007).

Raja Muhammad Ibrahimn Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-
on-Record for Respondent No.1 (in C.P.No.49 of 2007).

Malik Muhammad Qayyum, .Attorney-General for Pakistan, Pir Liaqat Ali Shah, A.G. N.-
W.F.P., Masood A. Noorani, Actg. A.G. Sindh, Ch. Khadim Hussain Qasier, .Addl. A.G.,
Punjab, Raja Muhammad Saeed Akram, A.A.G. Punjab and Mahmood Raza, Addl. A.-G.
Balochistan (On Court Notice).

Date of hearing: 23rd August, 2007.

JUDGMENT

JAVED IQBAL, J.---This judgment will dispose of the above captioned petitions preferred
under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter
referred to as the Constitution) on behalf of petitioners against their alleged forced exile to Saudi
Arabia as similar questions of fact and. law are involved.

2. The following relief has been claimed:-

"(i) Declare that the Petitioner No.2 and his family members including his brother Mian Shahbaz
Sharif, have the inalienable, unqualified fundamental right to remain in Pakistan and participate
in and contest the forthcoming general elections;

(ii) Order that the Respondents may not directly or indirectly obstruct, hamper or resist the return
of the petitioner No.2 and his family members, including his brother Mian Shahbaz Sharif, to

194
their country, Pakistan, or to force them to live in continued exile; and

(iii) Grant such other relief as this Hon'ble Court may deem fit and proper in the interest of
justice."

(Identical relief has been sought in Constitutional Petition No.49 of 2007 hence reproduction
whereof would be of no use).

3. Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court entered appearance
on behalf of petitioners and after mentioning the background, achievements and performance of
Pakistan Muslim League (N) urged with vehemence that every citizen of Pakistan has a right to
enter and move freely throughout the country and to reside and settle in any part whereof without
any embargo or restriction which cannot be imposed as the right conferred upon a citizen under
Article 15 of the Constitution is inalienable. It is next contended that the petitioners were
deported from Pakistan by force and in fact it was a forced exile. Mr. Fakhr-ud-Din G. Ebrahim,
learned Senior Advocate Supreme Court has referred Article 19 of the Indian Constitution and
also relied upon various judgments from Indian jurisdiction in order to support his esteemed
view, as mentioned herein above, such as Ebrahim Vazir v. State of Bombay (AIR 1954 SC
229). Besides that heavy reliance has been placed on the dictum. laid down in case of Mian
Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) whereby a declaration was given in
an unequivocal term that the right to enter in the country cannot be denied but a citizen can be
restrained from going out A of the country and Mian Muhammad Shahbaz Sharif being a citizen
of Pakistan has a Constitutional right to enter and remain in the country. It is also contended with
vehemence that no agreement whatsoever was executed with the' Government of Pakistan and all
the allegations levelled and published in different newspapers are baseless. It is admitted that the
undertaking produced by the Government is signed by the petitioners and its authenticity and
genuineness was not controverted with the submission that such undertaking cannot be equated
to that of an agreement and therefore, it cannot be enforced. It is also contended that no contract
could have been executed in violation of the provisions as contemplated in Article 15 of the
Constitution and besides that no Fundamental Rights could be surrendered or waived. It is also
contended that such undertaking would have no legal sanctity and thus deserves little
.consideration.. In order to substantiate his view point reference has been made to the case law
enunciated in Benazir Bhutto v. .Federation of Pakistan (PLD 1988 SC 416), Benazir Bhutto v.
Federation of Pakistan (PLD 1989 SC 66), Ghulam Sarwar v. Pakistan (PLD 1962 SC 142),
Govt. of Pakistan v. Akhlaque Hussain (PLD 1965 SC 527). It is contended firmly that no
restriction whatsoever can be imposed on the .Fundamental Rights guaranteed to the petitioners
as it would be in violative of the provisions as contemplated in Article, 15 of the Constitution.

195
4. Sahibzada Ahmad Raza Qasuri, learned Sr. ASC entered appearance on behalf of the
Federation of Pakistan and vehemently objected the petitions on the ground of maintainability. It
is also pointed out shat the petitioners should have invoked the Constitutional jurisdiction under
Article 199 of the Constitution as no such petition could have been filed by invoking Article
184(3) of the Constitution, because no point of public importance is involved in the matter. It is
next contended that it is an individual grievance which could have been redressed by the learned
High Court in exercise of its powers as conferred upon it under Article 199 of the Constitution. It
is also pointed out that no prohibitory order has been passed imposing any restriction on the
movement of petitioners and their apprehension is based on speculations and conjectural
presumptions on the basis whereof no relief can be granted. Sahibzada Ahmad Raza Qasuri,
learned Senior Advocate Supreme Court has contended that in fact no cause of action. is
available to the petitioners. Learned Senior Advocate Supreme Court invited our attention to the
conviction and sentence awarded to petitioner Mian Muhammad Nawaz Sharif in different cases.
It is also pointed out that it is not a case of forced exile but on the contrary the petitioner had left
the country with his own consent and that too to the choice of his country where he remained for
more than six years and no attempt whatsoever was made to come to Pakistan. Had it been a
forced exile the petitioner must have approached the forum concerned for the redressal of his
grievances which could not be done for the reasons best known to the petitioner on the basis
whereof it can be safely inferred that it was not a forced exile. In order to substantiate his view
point reference has been made to Zulfigar Mehdi v. Pakistan .International Airlines Corporation
(1998 SCMR 793), Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Muhammad
Hassan v. Government of Sindh (1980 SCMR 400). It is urged with vehemence that. the
Constitution petitions are liable to be dismissed in limine for the reason that the petitioners have
not approached this Court with clean hands and have concealed and suppressed the relevant and
material- facts and failed to mention that earlier petition on the same subject was dismissed being
not maintainable under the provisions as contemplated under Article 184(3) of the Constitution
as it pertained to the individual grievance and no question of public importance was involved.

5. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court entered appearance on
behalf of Federation of Pakistan and heavily relied upon the case of Mian Muhammad Shahbaz
Sharif (supra) and contended that the petitions are not maintainable under Article 184(3) of the
Constitution and the petitioners should have invoked the Constitutional jurisdiction under
Article' 199 of the Constitution as conferred upon learned High Court. It is also pointed out that
the petitions are hit by laches as-the petitioners got up from a deep slumber after a long period
and on this score alone the petitions deserve dismissal. It is also pointed out that the petitioners
had not approached this Court with clean hands and suppressed the real facts by concealing that
no agreement whatsoever was made while the fact is that they had proceeded Saudi Arabia as a
result of deal and the undertaking furnished in this regard has not been controverted. In the
beginning of his arguments Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court
contended that as per judgment of Liaquat Ali Ghanghro v. Province of Sindh (2007 CLC 923)
emergency is still enforced in the country but later on did not press this point.

196
6. Malik Muhammad Qayyum, learned Attorney General at the outset supported the dictum as
laid down in case of Mian Muhammad Shahbaz Sharif (supra) with the further submission that it
is an inalienable right of a citizen of Pakistan to enter into Pakistan and move freely subject to
any reasonable restriction. It is, however, contended that the petitioners had gone abroad at their
own and as a result of agreement executed by the petitioners and Saudi Arabia was their own
choice where they remained for a considerable long time and as such their voluntary migration
cannot be termed as forced exile. It is argued that had it been forced exile the petitioners would
have approached this Court for the redressal of their grievances which was not done. It is also
pointed out that the petitioners specially Mian Muhammad Nawaz Sharif had never made -any
attempt to enter into Pakistan and besides that no prohibitory order has ever been passed
restricting the entry of the petitioner in Pakistan. The learned Attorney General has referred case
of Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Nargis Shaheen v. Federation of
Pakistan (PLD 1993 Lah. 732), Nasrullah Khan Henjra v. Govt. of .Pakistan (PLD 1.994 SC 23),
Govt. of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504) to substantiate his view point..
It is also argued that the petitioners have. failed to honour their commitment and are responsible
for the breach of agreement executed to migrate Saudi Arabia so .that .conviction. and sentence
.awarded in different cases could be avoided. The learned Attorney General remained critical of
their conduct and requested that notice of the same may be taken by the Court as the petitioners
have not approached this Court with clean hands. The learned Attorney General has stressed that
the petitioners had made a deal with the Government after giving an undertaking that they would
not return to Pakistan for a period of ten years and more so they would not participate in the
political activities. The learned Attorney General has relied heavily on ,the undertaking given by
,the .petitioners that they would not return to Pakistan and participate in politics for ten years. It
is also .contended that since no restriction order was passed the petitioners could have come and
no invitation was to be extended by the Government but on their return they will be dealt with in
accordance with law. The learned Attorney General has also drawn the attention of this Court
towards the dismissal of earlier Constitution Petition bearing No.55 of 2003 filed by Mian
Muhammad Shahbaz Sharif which was dismissed by this Court on 7-4-2004, being not
maintainable and according to learned Attorney General no direction was given for the return of
Mian Muhammad Shahbas Sharif and hence the question of creating any hurdle or
implementation of the order which was never passed does not arise. It is also pointed out that the
grievances as canvassed on behalf of petitioners would not affect the public at large being
personal grievance and as such the jurisdiction as conferred upon this Court under Article 184(3)
of the Constitution cannot be exercised. It is stressed time and .again that no question of public
importance with reference to the enforcement of Fundamental Rights is involved hence the
jurisdiction under Article 184(3) of the Constitution cannot be invoked.

7. The learned Attorney General also mentioned that the sentence of Mian Muhammad Nawaz
Sharif was remitted in 2000 but pardon was not granted in hijacking and helicopter cases and the
order of fine, disqualification and property confiscation still holds the field.

8. We have carefully examined the respective contentions in the light of the provisions as

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enumerated in Article 15 of the Constitution and case law enunciated in different cases. First of
all we intend to dilate upon the pivotal question qua the maintainability of the above captioned
petitions under Article 184(3) of the Constitution. The prime objection of the respondents seems
to be that jurisdiction as conferred 'upon this Court, under Article 184(3) of the Constitution
cannot be invoked as no question of public importance is involved and therefore, the petitioners
should have approached the learned High Court by invoking .Constitutional .jurisdiction as
conferred upon it under Article 199 of the Constitution. It is also the case of the respondents that
in cases of individual grievances the question of invocation of the provisions as enumerated in
Article 184(3). of the Constitution does not arise. It is not the first occasion when the question
regarding interpretation of Articles 184(3) and 199 of the Constitution has been raised but on
different occasions and in various cases the above Articles were dilated upon, discussed,
considered and interpreted. In case of Muhammad Nawaz Sharif v; President of Pakistan (PLD
1993 SC 473) while interpreting the provisions as contemplated under Article 184(3) of the
Constitution it was observed as follows:--

"3. In order to appreciate the above controversy, it may be advantageous to quote above clause
(3) of Article 184 of the Constitution, which reads as follows.-

"184(3). Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of any
of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power
to make an order of the nature mentioned in the said Article. "

A perusal of the above-quoted- clause indicates that without prejudice the provisions of
Article 199 of the Constitution, which 'confers a Constitutional jurisdiction on the High
Courts, the Supreme -Court has been empowered to make an order of the nature
mentioned in the above Article 199 provided the following two conditions are fulfilled:-

(i) A question of public importance is involved;

(ii) with reference to the enforcement of any of the Fundamental Rights guaranteed by
Chapter 1, Part II of the Constitution, i.e. Articles 8 to 28."

9. It was also observed that:--

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"Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the Supreme
Court and its object is to ensure the enforcemenrt of fundamental rights referred to therein. This
provision is an edifice of democratic way of life and manifestation of responsibility casts on this
Court as a protector and guardian of the Constitution: The jurisdiction conferred by it is fairly
wide and the Court can make an order of the nature .envisaged by Article 199, in a case where a
question of public importance, with reference to enforcement of any fundamental right conferred
by Chapter 1 of Part II of the Constitution is involved. .Article 184(3) is remedial in character
and is conditioned by three prerequisites, namely----

(i) There is a question of public importance.

(ii) Such a question involves enforcement of fundamental right, and

(iii) The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the
Constitution."

10. It was further observed in the above mentioned case while interpreting the provisions as
contemplated under Article 184(3) of the Constitution as under:-

"3. First, we may understand the nature of Article 184(3). This provision confers power on the
Supreme Court to consider questions of public importance which are referable to the
enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in
Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which
confer similar power with certain restrictions on the High Court. The power conferred depends
upon two questions; one that the case sought to be heard involves question of public importance
and two, the question of public importance relates to the enforcement of Fundamental Rights. It
is not every question of public importance which can be entertained by this Court but such
question should relate to the enforcement of Fundamental Rights. This provision confers a
further safety and security to the fundamental rights conferred. and guaranteed 'by the
Constitution. This shows the importance which Fundamental Rights have in the scheme of the
Constitution. They cannot be curtailed or abridged and any provision of law or action taken
which violates Fundamental Rights conferred by the Constitution shall be void. The nature of
jurisdiction and the relief which can be granted under this Article is much wider than Article
199. It confers a power to make an order of the nature mentioned in Article 199. The word

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'nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not
be strictly in conformity with Article 199 but it may have the same colour end the same scheme
without any restrictions imposed under it. Article 84 is an effective weapon provided to secure
and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists
and a breach has been committed or is threatened. The attributes of Article 199 of being an
aggrieved person or of having an alternate remedy and depending upon the facts and
circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition
under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article
199 can be modified and also consequential reliefs can be granted which may ensure effective
protection and implementation of the Fundamental Rights. Even disputed questions of facts
which do not require voluminous evidence can be looked into where Fundamental Right has
been ' breached. However, in case where intricate disputed questions of facts involving
voluminous evidence are involved the Court will desist from entering into such controversies.
Primarily, the questions involved are decided on admitted or prima facie- established facts which
can be determined by filing affidavits. Evidence in support of allegations can be taken orally in
very exceptional cases where the breach is of a very serious nature affecting large section of the
country and is of great general importance." (Emphasis provided)

11. In case of Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), the provisions
as enshrined under Article 184(3) of the Constitution were interpreted in a comprehensive
manner after having a comparison between Articles 184(3) and 199 of the Constitution, relevant
portion whereof is reproduced herein below:-

"3. The above petitions have been filed under Article 184(3) of the Constitution of the
Islamic Republic of Pakistan, 1973, hereinafter .referred to as the Constitution. The above
provision reads as follows:-

"(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of any
of the Fundamental Rights conferred by Chapter 1 of Part II is .involved, have the power
to make an order of the nature mentioned in the said Article."

A perusal of the above-quoted provision of the Constitution indicates that without

prejudice to the provisions of Article 199, the Supreme Court has been conferred with the
power to entertain a petition under the above provision directly if the following two
conditions are fulfilled:-

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(i) The case involves a question of public importance; and

(ii) The question so involved pertains to the enforcement of any of the Fundamental Rights
contained in Chapter 1 of Part II of the Constitution.

4. It may further be noticed that if the above two conditions are met the above provision of the
Constitution confers power on the Supreme Court to make an order of the nature mentioned in
above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article
199, which confers jurisdiction on the High Courts is much wider than the jurisdiction conferred
on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High
Court not only can enforce a Fundamental Right under clause (2) of the above Article but call
also pass an appropriate order iii the matters covered by sub-clauses (a), (b) of clause (1) of
Article 199 of the Constitution, which provide as follows:--

"199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate
remedy is provided by law,--

(a) on the application of any aggrieved party, .made an order--

(i) directing a person performing, within the territorial jurisdiction of the Court, functions in
connection with the affairs of the Federation, a Province or a local authority, to refrain from
doing anything he is not permitted by law to do, or to do anything he is required by law to do; or

(ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the
Court by a person performing functions in connection with the affairs of the Federation, a
province or a local authority has been done or taken without lawful authority and is of no legal
effect; or

(b) on the application of any person, make an order-

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(i) directing that a person in custody within the territorial jurisdiction of the Court be brought
before it so that the Court may satisfy itself that he is not being held in custody without lawful
authority or in an unlawful mariner, or

(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold
a public office to show under what authority of law he claims to .hold that office." (Emphasis
provided)

5. A High Court; while passing an appropriate order for the enforcement of Fundamental Rights
or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not
required to go into the question, whether the case involves a question of public importance and,
secondly, under the above sub-clauses (a) and (b) of clause (1) of Article 199, it is not necessary
that the impugned action must be relatable to the enforcement of Fundamental Rights."

12. In case of Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) the provisions
enumerated under Articles 184(3) and 199 of the Constitution were examined and it was
observed as under:--

"From the above discussion it is quite clear that the use of the expression `without prejudice to
the provisions of Article 199' in the opening part of Article 184(3) merely indicated that the
power of the High Court under Article 199 ibid was left intact and has not been affected by
conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution
with a case which involved a question of public importance relating to enforcement of
fundamental rights guaranteed under Chapter 1 of Part II of the Constitution. The language of
Article 184(3) does not admit of the interpretation that provisions of Article 199 stood
incorporated. in Article 184(3) of the Constitution. Therefore, this Court while dealing with a
case under Article 184(3) of the Constitution. is neither bound b the procedural trappings of
Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the
High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and
they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction
by this .Court under Article 184(3) of the Constitution is not controlled by the provisions of
Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the
learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article
184(3) of the Constitution and therefore, exercise of power by this Court under the latter
mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The
jurisdiction of this Court under Article 184(3) of tie Constitution is not affected in any manner
either by the provisions of section 133 of the Act or by the conditions contained in Article 199(3)
of the Constitution. The jurisdiction of this Court in a case under Article 184(3) of the

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Constitution arises on existence of two conditions mentioned in this Article firstly, that the Court
considers that the matter brought before it involves a question of public importance and
secondly, that it relates to enforcement of any of the Fundamental. Rights guaranteed under
Chapter 1 Part II of the Constitution. Apart from these two jurisdictional requirements, no other
consideration are relevant for exercise of power by this Court under Article 184(3) of the
Constitution." (Emphasis provided)

13. The element of public importance was also discussed at length and it was observed in case of
Shahida Zaheer Abbasi (supra) as under:--

" it is quite clear that whether a particular case involved the element of "public importance"
is a question which is to be determined by this Court with reference to the facts and
circumstances of each case. There is no hard and fast rule that an individual grievance can never
be treated as a matter involving question of public importance. Similarly it cannot be said that a
case brought by, a large number of people should always be considered as a case of "public
importance" because a large body of persons is interested in the case. The public importance of a
case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on
questions affecting the legal rights and liberties of the people at large, even though the individual
who may have brought the matter before the Court is of no significance. Similarly, it was
observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference
to freedom and liberties guaranteed under Constitution, their protection and invasion of these
rights in a manner which raises a serious question regarding their enforcement, irrespective of
the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group
of individuals. In the case of Employees of Pakistan Law Commission v. Ministry of Works
1994 SCMR 1548, Saleem Akhtar, J., relying on the observations in Benazir Bhutto's case,
supra, on the scope of Article 184(3) of the Constitution observed as follows:--

"In Benazir Bhutto's case it was observed as follows:--

The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to
who shall have the right to move the Supreme Court nor does it say by what proceedings the
Supreme Court may be so moved or whether it is defined to the enforcement of the Fundamental
Rights of an individual which are infracted or extends to the enforcement of the rights of a group
or a class of persons whose rights are violated.

It was further observed that "the inquiry into law and life-cannot, in my view, be confined to the

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narrow limits of the rule of law in context of constitutionalism which makes a greater demand on
judicial functions. Therefore, while construing Article 184(3), the interpretative approach should
not be ceremonious observance of the rules or usages of interpretation, but regard should be had
to the object and the purpose for which this Article is enacted, that is, this interpretative approach
must receive inspiration from the triad of provisions which saturate and invigorate the entire
Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights, and the
directive principles of State Policy so as to achieve democracy tolerance, equality and social
justice according to Islam". (Emphasis provided)

14. The question of public importance was also discussed in case Zulfiqar Mehdi v. Pakistan
International Airlines Corporation (1998 SCMR 793) with the following observations:--

"8. In order to confer jurisdiction on this Court to entertain a petition under Article 184
(3) of the Constitution, it is necessary that two jurisdictional requirements must be
established. Firstly,. that the question raised in the petition is a question of public
importance and secondly, it relates to the enforcement of a fundamental right guaranteed
under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan
PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC
632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v.
Federation of Pakistan (PLD. 1975 SC 66) as follows:-

"Now, what is meant by a question of public importance. The term 'public' is invariably
employed in contradistinction to the terms private or individual and connotes, as an adjective,
something pertaining to, or belonging to the people; relating to a nation, State or community. In
other words, it refers to something which is to be shared or participated in or enjoyed by the
public at large, and is not limited or restricted to any particular class of the community. As
observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit v. Secretary
for India-in-Council (ILR 39 Bom 279) while construing the words 'public purpose' such a
phrase, 'whatever else it may mean must include a purpose, that is an object or aim, in which the
general interest of the community as opposed to the particular interest of individuals is directly
and vitally concerned. This definition appears to me to be equally applicable to the phrase 'public
importance'.

The learned Attorney-General is clearly right in saying that a case does not involve a question of
public importance merely because it concerns the arrest and detention of an important person like
a Member of Parliament. In order to acquire public importance, the case must, obviously raise a
question which is of interest to or affects the whole body of people or an entire community. In
other words the case must be such as gives rise to questions affecting the legal rights or liabilities

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of the public or the community at large even though the individual, who is the subject-matter of
the case may be of no particular consequence. (Emphasis provided)

Seen in this light, there can be little doubt as to the public importance of the questions arising in
this case. I think I will not be far wrong in saying that it is not often that a single case raises so
many questions of public importance touching the liberty of the citizen. In all systems of law
which cherish individual freedom and liberty, and which provide Constitutional safeguards and
guarantees in this behalf, any invasion of such freedom in circumstances which raise serious
questions regarding the effectiveness and availability of those safeguards, must be regarded as a
matter of great public importance."

15. The provisions as contemplated in Article 184(3) of the Constitution were also interpreted in
case of Benazir Bhutto (supra) and it was observed that "Article 184(3) of the Constitution
.empowers a Supreme Court to enforce the Fundamental Rights where the question of public
importance arises in relation thereto. And if looked at from this angle it is hardly of any
importance whether the Executive has passed a prejudicial order or not when the infraction of the
Fundamental rights takes place by the operation of the law itself. In this context what would be
relevant would be the language of the provisions of the impugned Act itself. It will then 'not be a
question of the Court merely granting n declaration as to the validity or invalidity of law in the
abstract. An enactments may immediately on its coming into force take 'away or abridge the
Fundamental Rights of a person by its very terms and without any further overt act being done.
In such a, case the infringement of the Fundamental Right is complete co instant the passing of
the enactment and, therefore, .there can be no reason why the person so prejudicially affected by
the law should not be entitled immediately to avail himself of the constitutional remedy. To say
that a person, whose Fundamental Right has been infringed by the mere operation of an
enactment, is not entitled to invoke the jurisdiction of Supreme Court for the enforcement of his
right, will be to deny him the benefit of a salutary constitutional remedy which is itself his
Fundamental Right. The infractions alleged - cannot be regarded as seeking a declaration in the
air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent
questions. "

16. It was further observed in case of Benazir Bhutto (supra) while discussing Article 184(3) of
the Constitution as follows:-

"Another important question mooted for consideration is as to whether the requirement of an

"aggrieved party" is spelt out from Article 184(3) of the Constitution. The submission of the
learned counsel for the petitioner was. that the word "aggrieved" does not find mention in this
sub-Article, and, therefore, it cannot be read into it while that of the learned Attorney-General

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was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co-terminus
with that of Article 199 which by its -sub-Articles 1(a) and 1(c) envisaged the application to be
made by an "aggrieved party" and that this requirement should also be read into Article 184(3).
In support of his contention, the learned Attorney-General relied on Ch. Manzoor Elahi v.
Federation of Pakistan, PLD 1975 SC 66, Begum Nusrat Bhutto v. Chief of Army Staff and
Federation of Pakistan PLD 1977 SC 657 and Charanjit Lal Chowdhuiy v, The Union of India
and others AIR 1951 SC 41."

17. In the same wake of events it was also observed in case of Benazir Bhutto (supra) that "the
plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who
shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme
Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights
of an individual which are infracted or extends to .the enforcement of the rights of a group or a
class of persons whose rights are violated. In this context the question arises whether apart from
the non-incorporation of sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an
"aggrieved person" is implicit in Article 184(3). as because of the traditional litigation which, of
course, is of an adversary character where there is a lis between the two contending parties, one
claiming relief against the other and the other resisting the claim. This rule of standing is an
essential outgrowth of -Angle-Saxon jurisprudence in which only the person wronged can initiate
proceedings of a judicial nature for redress against the wrong doer. However, in contrast to it,
this procedure is not followed in the civil law system in vogue in some countries. The rationale
of this procedure is to limit it to the parties concerned and to make the rule of law selective to
give protection to the affluent or to serve in aid for maintaining the status quo of the vested
interests. This is destructive of the rule of law-which is so worded in Article 4 of the Constitution
as to give protection to all citizens. The inquiry into law and life cannot, be confined to the
narrow limits of the rule of law in the context of constitutionalism which makes a greater demand
ort judicial functions. Therefore, while construing Article 184(3), the interpretative approach
should not be ceremonious observance of the rules or usages of interpretation,. but regard should
be had to the object and the purpose for which this Article is enacted, that is, this interpretative
approach must receive inspiration from the triad of provisions which saturate and invigorate the
entire Constitution, namely, the Objectives Resolution (Article 2-A ), the Fundamental Rights and
the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social
justice according to Islam. "

18. The rule of stare decisis was also discussed in case of Benazir Bhutto (supra) with the
following observations:-

"As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the
lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can
exist to take it out from that practice such as in the case where there was a denial of justice as a

206
result of the proceedings being dilatory.

As the human right norm is higher than the law then any violation and its consequent
enforcement can only be controlled by an in-built limitation in the provision itself. A rule of
practice which has received recognition as a principle of law is not higher than the norm and the
machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it
until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a
Court of lower hierarchy exercising concurrent jurisdiction. The reason is salutary that at one and
the same time the petitioner cannot be allowed to invoke the two forums in regard to the same
relief. She has to choose one or the other. However, there can also be an abuse of this practice if
there is an indiscriminate filing of petitions b y persons motivated to stultify the exercise of
judicial power under Article 184(3) of the Constitution. How then the practice can be strictly
adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his
Fundamental Rights. The measure of applicability of the practice has to be judged in the light of
the particular facts and circumstances of each case.

In spite of a Judge's fondness for the written word and his- normal inclination to adhere to prior
precedents one cannot fail to recognise that it is equally important to remember that there is need
for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become
mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in
criminal, fiscal and constitutional matters where the liberty of the subject is involved or some
other grave injustice is likely to occur by strict, adherence to the rule.

Too rigid adherence to precedent may lead to injustice in a particular case and also unduly
restrict the proper development of the law."

19. It was observed in case of Benazir Bhutto (supra) by per Abdul Kadin Sheikh, J. Chat "it is
evident from the language of Article 184(3) that it provides a direct access to the highest judicial
forum in the country for the enforcement ' of Fundamental Rights. It caters for an expeditious and
inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive
interference. It gives the Court very wide discretion in the matter of providing art appropriate order
or direction including declaratory order to suit the exigencies of particular situations. There can be
no doubt that declaration of Fundamental Rights is meaningless unless there is art effective
machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often
said that without 'remedy' there is no right. It is for this reason that Constitution-makers provided a
long list of Fundamental Rights and the machinery for their enforcement. That machinery is the
superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the
Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan.

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Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any
condition or stipulation for obtaining relief and redress under Article 184(3). No strait jacket
formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled
out is that in case the Supreme Court was itself of the view in a given case that a question of public
importance with reference to the enforcement of any of the Fundamental Rights conferred by
Chapter 1 of -Part II is involved, it should directly interfere, and any rigid formula or strait jacket
formula prescribed for enforcement of the Rights would be self defeating. The language of Article
184(3) is "open ended ", and the Framers of the Constitution did not intend any rigid or
ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by
an individual or a group or class of persons."

20. After having discussed the law laid down in the above mentioned cases the judicial
consensus seems to be as follows:--

(i) That while interpreting Article 184(3) of the Constitution the interpretative approach should
not be ceremonious observance the rules or usages of the interpretation but regard should be had
to the object and purpose for which this Article is enacted i. e. the interpretative approach must
receive inspiration from the triad of provisions which saturate and invigorate the entire
Constitution namely the Objectives Resolution (Article 2-A), 'the fundamental rights and' the
directive principles of State policy so as to achieve democracy, tolerance, equity and social
justice according to Islam.

(ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at
the instance of the "aggrieved party" in the context of adversary proceedings. Traditional rule of
locus standi can be dispensed with and procedure available in public interest litigation can be
made use of, if it is brought to the Court by a person acting bona fide.

(iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the
Fundamental Rights of an individual or a group or class of persons in the event of their infraction
and it would be for the Supreme Court to lay down the contours generally in order to regulate the
proceedings of group or class actions from case to case.

(iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into
service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest
of any person.

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(v) That the Article 184(3) is remedial in character and is conditioned by three prerequisites,
namely----

* There is a question of public importance.

* Such a question involves enforcement of fundamental right, and

* The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the

Constitution.

(vi) That it is not every question of public importance which can be entertained by this Court, but
such question should relate to the enforcement of Fundamental Rights.

(vii) That even the disputed questions of facts which do not require voluminous evidence can be
looked into where Fundamental Right has been breached. However, in case where intricate
disputed question of facts involving voluminous evidence are involved the Court will desist from
entering into such controversies.

(viii) That the language of Article 184(3) does not admit of the interpretation that provisions of
Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court I while
dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural
trappings of Article 199 ibid, nor by the limitations mentioned in that Article .for exercise of
power by the High Court in a case.

(McCabe v. Atchison (1914) 285 US 151, S.P. Gupta and others v. President of India and others
AIR 1982 SC 149, Standard Vacuum Oil Company v. Trustees of the Port of Chittagong PLD
1961 Dacca 289, Sneed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347,
Asma Jilani v. Government of the Punjab PLD 1972 SC 139, Muhammad Boota and 77 others v.
Commissioner, Sargodha Division PLD 1973 Lah. 580, Hakim Muhammad Anwar Babri v.
Pakistan PLD 1973 Lah. 817, National Steel Rolling Mills v. Province of West Pakistan 1968

209
SCMR 317, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Abanindra Kumar Maity
v. A.K. Majumdar AIR .1956 Cal. 273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC
223, K.K. Kochumii v. State of Madras AIR 1959 SC 725, Jibendra Kishore v. Province of East
Pakistan PLD 1957 SC 9, Messrs East and West Steamship Company v. Pakistan PLD 1958 SC
(Palo.) 41 and Waris Meah v. The State PLD 1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990
SC 513, 1990 PLC 61, PLD 1988 SC 416, KLR 1988 SC 423, 1988 PSC 809.

21. On the touchstone of the criterion as mentioned herein above the case of petitioners has been
examined. There is no denying the fact that Mian Muhammad Nawaz Sharif was elected twice as
Prime Minister of Pakistan by securing a heavy mandate and Mian Muhammad Shahbaz Sharif
remained as Chief Minister of Punjab. It is also an admitted fact that during the General Election
held in 1997 Pakistan Muslim League (N) obtained about 8.8 million votes and thus it can be
inferred safely that Pakistan Muslim League (N) is one of the biggest parties of Pakistan.
According to Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court the
number of its members is more than four millions but authenticity whereof cannot be determined
by this Court. It is, however, also not disputed that Mian Muhammad Nawaz Sharif remained as
Prime Minister of Pakistan till 12th October, 1999. Mr. Fakhr-ud-Din G. Ebrahim, learned.
Senior Advocate Supreme Court in the case of Mian Muhammad Shahbaz Sharif has referred
the order dated 7.4.2004 passed by this Court in Constitutional Petition No.55 of 2003 which
was dismissed with the observation that "it is not denied by learned Attorney General for Pakistan
and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a
right on every citizen of Pakistan to enter or move freely throughout the country and to reside and
settle in any part thereof. It is a settled proposition of law that the right to enter in the country
cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a
citizen of Pakistan and has a constitutional right to enter and remain in the country. " It is an
admitted fact that the present Provincial and National Assemblies would complete their term on
or about 15th of November, 2007. and General Elections are to be scheduled to be held during
the course of this year and therefore, the petitioners .as leaders of a national political party
elected twice by the people of Pakistan has every right to return to organize their party and to
participate in the General Elections subject to all legal exceptions. We are in agreement with the
view of Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC that the party workers of Pakistan
Muslim League (N) are eagerly and anxiously waiting for their leaders namely Mian Muhammad
Nawaz Sharif and Mian Muhammad Shahbaz Sharif. In the above mentioned scenario if these
petitions are examined the only inescapable conclusion would be that the same are maintainable
under Article 184(3) of the Constitution. It is, however, to be kept in view that the earlier petition
preferred on behalf of Mian Muhammad Shahbaz Sharif was dismissed being non-maintainable
as it was filed in his individual capacity and for the redressal of his individual grievances and the
element of public importance which is sine qua non for the invocation of Article 184(3) of the
Constitution was missing and it is well established by now that the issues arising in a case,
cannot be considered as a question of public importance, if the decision of the issues affects only
the rights of an individual or a group of individuals. The issue in order to assume The character
of public importance must be such that its decision affects the rights and liberties of people at
large. The adjective `public' necessarily implies a thing belonging to people at large, the nation,
the State or a. community as a whole. Therefore, if a controversy is raised in which only a

210
particular group of people is interested and the body of the people as a whole or the entire
community has no interest, it cannot be treated as a case of public importance. 'Now the position
has been changed altogether and the above captioned petitions have been preferred by the
Central Working Committee on behalf of Pakistan Muslim League (N) which has got its own
import, significance and it has assumed a character of public importance which also involves the
question of enforcement of Fundamental Rights. As mentioned herein above while construing
Article 184(3) of the Constitution the interpretative approach should not be ceremonious
observance of the rules or usages. of interpretation, but regard should be had to the object and the
purpose for which this Article is enacted, that is, this interpretative approach must receive
inspiration from the triad of provisions which saturate and invigorate the entire Constitution,
namely the Objectives Resolution (Article 2A), the Fundamental Rights, and the directive
principles of State Policy so as to achieve democracy, tolerance, equality and social justice
according to Islam.

22. The concept of "political rights" and "political justice" cannot be ignored in such like cases.
At a cursory glance one may not find the element of "political justice" in all the .Fundamental
Rights guaranteed by the Constitution but an in depth scrutiny would reveal that the concept of
"political justice" is floating in Chapter-1 of the Constitution concerning "Fundamental Rights"
even otherwise the "political justice" is not a new phenomena and it was observed more than a
decade by Mr. K Justice Zaffar Hussain Mirza (as his lordship then was) that "the expression
political justice" is very significant and it has been placed in the category of fundamental rights.
Political parties have become a subject-matter of a fundamental right in consonance with the said
provision in the Objectives Resolution. Even otherwise, speaking broadly on the model of
Parliamentary form of representative Government prevalent in United Kingdom. It is also clear
from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully
observed. " (Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416}. The concept of
"political justice" deserves consideration in such like cases and therefore, it would be an
additional factor on the basis whereof the jurisdiction as conferred upon this Court under Article
184(3) of the Constitution can be exercised.

23. We have also adverted to the main stance of learned Attorney General that petitioners had
proceeded abroad as a result of an agreement pursuant whereof an undertaking was given that the
petitioners would remain in Saudi Arabia, the country of their own choice, and would not
participate in the politics for ten years. In order to substantiate the said stance heavy reliance has
been placed on the undertaking furnished by the petitioners which is reproduced herein below for
ready reference:--

"I, the undersigned, Muhammad Nawaz Sharif, hereby acknowledge- that I approved the
gentleman's assistance to negotiate on my behalf for my release from incarceration in Pakistan. I,
the undersigned, further acknowledge that I am thoroughly satisfied with the course and results

211
of .the negotiations on my behalf; that I have been kept fully advised on the negotiations; that I
have been in full agreement with the negotiations and that I fully agree with and accept the
result. (Emphasis provided)

Upon my arrival in the country, I have approved to go to, I, the undersigned, hereby covenants
and agree that I will not engage in any business or political activities or other activities of any
nature whatsoever against the interests of Pakistan or relating to my incarceration in Pakistan for
a period of 10 years. (Emphasis provided)

Further I the undersigned agree to stay out of Pakistan for 10 years where my residence will be in
the country I approved but I will be able to travel on the condition. I will come back to my
residence for stay. (Emphasis provided)

I, the undersigned, further agree that I will not disclose to any party either the gentleman or the
country' involved in my release from Pakistan and relocation to in the approved location except
with their prior written consent.

Also, I, the undersigned, hereby specifically release all parties involved from any claim of any
nature whatsoever I .have or may have had relating to the gentleman negotiating on my behalf
and 1ny release from Pakistan and relocation to the country approved by myself."

(Signed this 2nd day of December 2000: Both the undertakings made by the Sharif brothers are
having the same text).

24. A bare perusal of the undertaking would reveal that certain assurances had been given such
as residing in Saudi Arabia and non-participation in political activities in Pakistan for ten years.
It is worth mentioning that the authenticity and genuineness of the undertaking duly signed by
the petitioners has not been questioned by Mr. Fakhr-ud-Din G. Ebrahim, learned Senior
Advocate Supreme Court on behalf of petitioners, however, its evidentiary value and
admissibility was objected to seriously. It is to be noted that an undertaking cannot be equated to
that of an agreement which has its own peculiar characteristics, M connotations, import and
significance. The striking difference between the two would be the element of enforcement. The
agreement can be enforced legally but an undertaking cannot because it has got no legal sanctity
behind it. For the sake of argument if it is admitted that an agreement was executed by the

212
petitioners even then the question would be as to whether it can be enforced by invocation of
Constitution jurisdiction?. The answer would be in negative' for the simple reason that
Constitutional jurisdiction. is not available to enforce the "contractual rights and obligations of
the parties as it squarely falls within the jurisdictional domain of ordinary courts and no relief
can be granted while exercising the Constitutional jurisdiction. The High Court in exercising its
writ jurisdiction will be loath to interfere in matters arising out of contractual obligations merely
for the purpose' of enforcing contractual obligations notwithstanding the very extensive nature of
the power of the .High Court under .that Article. " (1990 MLD 563 (DB), PLD 1992 Lah.68
(DB), 1990 CLC 2007, 1990 CLC 560 (DB), PLD 1987 Lah. 262, PLD 1986 Quetta 187, PLD
1986 Quetta 181 (DB), PLD 1973 Kar. 878 (DB), 1971 DLC 250 (DB), PLD 1966 Dacca 576
(DB), 1985 CLC. 2805, NT.R 1985 Civ. 69, NLR 1978 Civ. 1114 (DB), PLD 1969 Dacca 779
(DB), PLD 1969 Lah. 823 (DB), 1968 SCMR 1136, 1969 DLC 449, 21 DLR 394(DB), 1970
DLC 387, 22 DLR 235 (DB), PLD 1962 SC 108, 1962 (2) PSCR 87, 14 DLR(SC) 102, PLD
1958 SC 267, PLR 1958 (Z) WP 1369, PLD 1959 SC 147, PLR 1959(2) WP 501, 1959 (1)
PSCR 34, 11 DLR (SC) 260, AIR 1953 Punj. 23.9, AIR 1952 Raj.151, ILR (1951) 1
Raj.755(DB),AIR 1952 Vindh Pra 13, ILR(1951)1 Raj. 496 (DB).

25. Be as it may, the petitioners being citizens of Pakistan can return to their country as no
restraint can be placed on a Pakistani citizen to return to his country and the undertaking given
by the petitioners had no Constitutional legitimacy as such the petitioners cannot be prohibited
from coming to Pakistan. Every citizen has undeniable right vested in him as conferred under
Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance
and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative
from the language employed in Article 15 of the Constitution as a specific mention has beep
made "subject to any reasonable restriction imposed by law in the public interest", meaning
thereby that such right is subject to the relevant law which is in existence at relevant tone but "an
action which is mala fide or colourable is not regarded as action in accordance with law.
Similarly, action taken upon extraneous or irrelevant considerations is also not action in
.accordance with law. Therefore action taken upon no ground at all or without proper application
of the mind of an authority would also not qualify as an action in accordance with law and
would, therefore, have to be struck dawn as being taken. in an unlawful manner. " (PLD 1973 SC
49, PLD 1969 SC 14, 21 DLR [SC] 1). It is well settled by now that every citizen has an
inalienable right to enjoy the protection of law and to be treated in accordance with law and in
particular no .action detrimental to the life, liberty, body, reputation or property of any person
shall be taken except P in accordance with. law.. No action detrimental to such Fundamental
Rights can be initiated except in due course of law. In this regard we are fortified by the dictum
laid down in the following authorities:--

(PLD 1990 Lah. 432, NLR 1990 AC 81.2, 1990 MLD 1468, PLJ 1990 Lah. 380, NLR 1990 Civ.
485; PLD 1989 Lah. 175, 1988 CLC 545, PLJ 1988 Lah. 189, NLR 1988 Civ. 203, 1988 Law
Notes 247, 1985 PCrLJ. 360)

213
26. It may not be out of place to mention here that "there is no inherent power in the executive,
except what has been vested in it by law, and that lain is the source of power and duty. The
structure of the machinery of government, and the regulation of the powers and duties which
.belong to the different parts of this structure are defined by the law, which also prescribes, to
some extent the mode in which these powers are to be exercised or those duties performed..
From the all prevading presertce of law, as the sole source of governmental powers and duties,
there follows the consequence that the existence or non-existence of a power or duty is, a matter
of law and not of fact, and so must be determined by reference to same enactment or reported
case. Consequently there are no powers or duties inseparably annexed to the executive
Government. It cannot be argued that a vague, indefinite and wide power has keen vested in the
executive to invade upon the proprietary rights of citizens and that such invasion .cannot be
subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the
position in law. Arty invasion upon the rights of citizens by anybody no matter whether by a
private individual or by a public official or body, must be justified with reference to some law of
the country. Therefore, executive action would necessarily have to be such that it could not
possibly violate a Fundamental Right. The only power of the executive to take action would have
to be derived from law and the law itself would not be able to confer upon the executive any
power to deal with a citizen or other-persons in Pakistan in contravention of a Fundamental
Right. Functionaries of State, are to function strictly within the sphere allotted to them and in
accordance with law. No Court or Authority is entitled to exercise power not vested in it and all
citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an
Authority admitted to be derogatory to law and Constitution, is liable to be struck down. " (PLD
1976 Kar: 1257 (DB), PLD 1967 Dacca 607 (DB), 19 DLR 689, 1990 CLC 1772, 1990 MLD
1468.

27. It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same
way as a Fundamental Right. For it is an established principle of British jurisprudence which
may be treated as R constituting a part of the Pakistan law also, .that no member of the executive
can interfere with the liberty or a property of a subject except on the condition that he can
support the legality of his action before a Court of Justice. (AIR 1931 PC 248, A.K.Gopalan v.
State of Madras AIR 1950 SC 27, [1952] 61 Yale Law journal 171 [203], Kent v. Dulles 357 US
116, Aseerwatham v. Permanent Secretary, Ministry of Defence and External Affairs and others
Journal of the International Commission of Jurists, Vol. VI; No.2, p. 319, Winter (1965 Part) and
Satwant Singh Sawhney v. The Government of India Journal of the International Commission of
Jurists, Vol. VIII, No.2, p. 134 (December 1967 Part).

28. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory
manner but while "interpreting Fundamental rights guaranteed by the Constitution, a cardinal
principle has always to be borne in mind that these guarantees to individuals are subject to the
overriding necessity or interest of community. A balance has to be struck between these rights of

214
individuals and the interests of the community. If in serving the interests of the community, an
individual or number of individuals have to be put to some inconvenience and loss by placing
restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be
considered to be unreasonable. " (Nasirabad Properties Ltd. v. Chittagong Development
Authority PLD 196G Dacca 472).

29. No infringement or curtailment in any Fundamental Right can be made unless it is in the
public interest and in accordance with valid law. No doubt that reasonable restriction can be
imposed but it does not mean arbitrary exercise of power or unfettered or unbridled powers
which surely would be outside the scope of "reasonable restriction" and it must be in the public
interest. The concept of "reasonable restriction" was discussed in case East and West Steamship
Co. v. Pakistan (PLD 1958 SC (Pak.) 41) as follows:-

"A reasonable restriction" in the sense of Article 11 is one which is imposed with due
regard to the public requirement which it is designed to meet, Anything which is arbitrary
or excessive will of course be outside the bounds of reasons in the relevant regard, but in
considering the disadvantage imposed upon the subject in relation to the advantage which
the public derives, it is necessary that the Court should have a clear appreciation of the
public heed which is to be met and where the statute prescribes a restraint upon the
individual, the Court should consider whether it is a reasonable restraint, in the sense of
not bearing excessively on the subject and at the same time being the minimum that is
required to preserve the public interest."

30. It, however, cannot be lost sight of that the "Fundamental Rights guaranteed by the
Constitution are not meant merely to be pious enunciations of certain principles .supposed to be
the basis of the Constitution. The characteristic of a Fundamental Right is its paramountcy to
ordinary State-made laws. They are immune from the pale of legislative enactments and
executive actions. They constitute express constitutional provisions limiting legislative power
and controlling the temporary will of a majority by a permanent and paramount law settled by
the deliberate wisdom of the nation. The sanctity of the Fundamental Rights is protected by
Article 8(2) which prohibits the State which includes the Legislature not to make any law by
which any Fundamental Right may be cur-tailed or taken away and if any law is made to this
effect then to .the extent of such contravention it shall be void. It is not liable to be abridged by
any legislative or executive orders except to the extent provided in Art. 233. Fundamental rights
V cannot be waived. No right which is based on public policy can be .waived. Citizens of
Pakistan cannot themselves waive out of the various fundamental rights which the Constitution
grants them. The fundamental rights are not to be read as if they included the words `subject to a
contract to the contrary'." (AIR 1952 Punj. 309, ILR 1952 Punj. 381 (FB), AIR 1950 SC 27,
1950 SCR 88, PLD 1989 Kar.404 (DB), AIR 1950 SC 27, AIR 1951. Hyd. 1 (FB), PLD 1989
Kar.. 404 (FB), AIR 1951 SC 41, 1950 SCR 869, PLD 1965 SC 527).

215
31. It is worth mentioning that no fundamental right can be surrendered or waived by means of
any agreement or an undertaking as W argued by Raja Muhammad Ibrahim Satti, learned
Advocate Supreme Court and Malik Muhammad Qayyum, learned Attorney General for Pakistan
because "the idea behind the concept of Fundamental Rights is that the preservation of certain
basic human rights against State interference is an indispensable condition of free society. The
paramountcy to State-made laws is the hallmark of a Fundamental Right. It .follows that the aim
of having a declaration of Fundamental Rights is that certain elementary rights of the individual
such as his right to life, liberty, freedom, of speech, freedom of faith and so on, should be
regarded as inviolable under all ,conditions and that the shifting majori--ties in the Legislatures
of the country should not be able to tamper with them. Absolute and unrestricted individual rights
do not exist in X any modern State and there is no such thing as absolute and uncontrolled
liberty. The collective interests of the society, peace and security of the State and the maintenance
of public order are of vital importance in any organized society. Fundamental Rights have no real
meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of
the subjects are themselves in danger. It is for these reasons of State that an equilibriums has to
be .maintained between the two contending interest at stake; one, the individual liberties and the
positive rights of the citizen which are declared by the Constitution to be Fundamental, and the
other, the need to impose social control and reasonable limitations on the enjoyment of those
rights in the interest of the collective good of the society. " (AIR 1951 All. 257, ILR (1951)1 All.
269 (FB), (AIR 1950 SC 27,, 1950 SCR 88), AIR 1952 Mad. 613 (DB), PLD 1965 Lah.
642(FB).

32. Now we intend to discuss the provisions as contemplated in Article 15 of the Constitution for
the purpose of interpretation which is reproduced herein below for ready reference:--

"Art. 15. Freedom of movement, etc. Every citizen shall have the right to remain in, and,
subject to any reasonable restriction imposed by law in the public interest, enter and
move freely throughout Pakistan and to reside and settle in any part thereof.''

33. The language employed in Article 15 of the Constitution is free from any ambiguity and no
scholarly interpretation would be needed. `In interpreting a provision of a Constitution the widest
construction possible in its context, should be given according to the ordinary meaning of the
words used, and the general words .should be held to extend to all ancillary and subsidiary
matters. A Constitution is not to be interpreted in a narrow or technical manner, and a
construction which leads to a .legal vacuum is to be avoided. " (PLD 1959 Supreme Court 470,
PLR 1960(1) W.P. 253, 11 DLR (SC) 423, 1959 (2) PSCR 275, PLD 1974 Kar. 345.

216
34. It is, however, to be rioted that right conferred upon a citizen is neither absolute nor
unlimited but subject to "reasonable restriction" .imposed by law in the public interest which
means that this right can be restricted by imposing "reasonable restriction of law" in the public
interest. In other words "the State has power t o impose reasonable restrictions on the right of
freedom of movement of a free citizen where such restriction is necessary in the interests of the
general public. Thus the law restricting the movement of prostitutes in a part of the town, or
restricting movements of a person under Goonda Act are reasonable restrictions. A restriction is
unreasonable if it is for an indefinite or an unlimited period or a disproportionate to the mischief
sought to be prevented or if the law imposing the restrictions has not provided any safeguard at
all against arbitrary exercise of power. " (AIR 1953 Assam 77, ILR (1942)4 Assam 126, 1953
Cril. Jour 657, AIR 1953 Punj. 52, ILR 1952 Punj.. 362, 1953 Cril Jour. 421(DB), PLD 1958
Lah.929, PLR 1959 (1)W.P.528, AIR 1964 SC 416, PLD 1957 Lah.388, PLR 1957(1) W.P..
1062(DB), For contrary decision see AIR 1961 SC 29.4, 17 DLR 553).

35. The prime contention of Mr. Fakhr-ud-Din G. Ebrahirn, learned Senior Advocate Supreme
Court is that Article. 15 of the Constitution confers a right on every citizen of Pakistan to enter or
move freely throughout the country and to reside and settle in airy part thereof without any
restraint or hindrance. Before the said contention could be discussed it is noticeable that in case
of Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) the provisions as
contemplated under Article 184(3) and Articles 15 and 4 of t h e Constitution were discussed at
.length with the following observations:-- ,

"1.6. Clause (3) of Article 184 and sub-clause (c) of clause (1) of Article 199 of the
Constitution are for the enforcement of any of the fundamental rights conferred by
Chapter 1 of Part IL For their proper appreciation, they are reproduced below:---

"Article 184(3): Without prejudice to the provisions of Article 199, ,the Supreme Court
shall, if it considers that a question of public importance with reference. to the
enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is
involved, have the power to make an order of the nature mentioned in the said Article."

"Article 199(1,): Subject to the Constitution, a High Court may, if it is satisfied that no
other adequate remedy is provided by law, -

(c) on the application of any aggrieved person, make an order giving such directions to
any person or authority, including any Government exercising any power or performing

217
 any function in, or in relation to, any territory within the jurisdiction of that Court as may
be appropriate for the enforcement of any of the Fundamental Rights conferred- by
Chapter 1 of Part II

17. Articles 199 and 184(3) regulate the jurisdiction of the superior Courts and do not
oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions
are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that
the grievance relates to violation of fundamental rights. Secondly, the violation is of
nature of public importance, which- has been interpreted to mean any invasion of
individual freedom, liberty, fundamental rights, including effectiveness and safeguard for
their implementation. Therefore, having regard to the connotation of the words "public
importance", the. facts and circumstances of the each case would have to be scrutinized
on its own merits. "

36. While discussing Article 15 of the Constitution if was affirmed that it bestows a right on
every citizen of Pakistan to enter or move A freely throughout the country and to reside and
settle any part thereof. It A is a settled principle of law that the right to enter in the country
cannot be deified but a citizen can be restrained from going out of the country. The petitioners
are citizens of Pakistan and .have a Constitutional right and a sacred prerogative to enter and
remain in Pakistan.

37. It is, however, to be noted that "where a fundamental right is sought to be restricted by any
law, care should be taken that they provide sufficient safeguards against casual, capricious or
even malicious exercise of the powers conferred by them. In this respect it must be remembered
that though a law may not in terms restrict the exercise of certain right under this Article yet if it
has the effect of doing so, it will be open to challenge (AIR 1961 SC 293, AIR 1952 SC 115,
1952 SCR B 572). Be as it may in "the case of citizens of Pakistan, there is a fundamental right
to .enter Pakistan from outside and, therefore, any restriction of such right will be an invasion of
this Article. The imposition of restrictions by requirement of permits, etc., is justified as a
reasonable restriction in the public interest. But a law which subjects a citizen to the extreme
penalty of a virtual forfeiture of a citizenship upon conviction for a mere breach of the permit
regulations or upon a reasonable suspicion of having committed such a breach can hardly be
justified upon the ground that it imposes reasonable restriction upon the fundamental right to
reside and settle in the country, in the interests of the public. " (PLD 1969 Lah. 908, PLR 1969
(2) W.P.298, 22 DLR (W.P.) 57 (DB), AIR 1952 All. 257, ILR (1952) .1 All 513(DB), AIR 1952
Cal. 837, 1952 Cri L Jour 1683 (DB), AIR 1953 Nag. 185, ILR 1951 Nag. 328 (DB), The
Supreme. Court speaks by Leo Pfeffer, p. 238, AIR 1954 SC -229, 1954 SCR 933).

218
38. We have also adverted to the contention of Raja Muhammad Ibrahim Satti, learned Advocate
Supreme Court that the petitions are hit. by laches and deserve dismissal on this score .alone. We
are not persuaded to agree .with Raja Muhammad Ibrahim Satti, learned Advocate Supreme
Court because Fundamental Rights cannot be denied or infringed or curtailed- on the ground of
laches. It depends upon a citizen to exercise such right when he so wishes and no time limit can
be prescribed for claiming such right. because .the Fundamental Rights enshrined in the
Constitution are always considered paramount and C cannot be curtailed, usurped or infringed by
any legislative device or executive measurement, however,. it is subject to .any reasonable
restriction that may be imposed by law in the public interest. No such reasonable restriction
could be pointed out by the learned Attorney General for Pakistan imposed on the petitioners by
law in the public interest. The undertaking as mentioned herein above cannot be equated to that
of "legal restrictions imposed in the public interest". "The fundamental right granted by Article
15 of the Constitution is backed by international norms. Article 9 of the Universal Declaration
of Human Rights declares: "No one shall be subjected to arbitrary arrest, detention or exile. "
Furthermore, Article 13 states: "Everyone has the right to leave any country, including his,
own, and to return to his country." The Human Rights Declaration itself draws its inspiration in
this regard from the .Magna Carta, which, as early as 1215, proclaimed: "No ... man shall be
outlawed or exiled ... except by the lawful judgment of his equals or by the law of the land ".
Although the Human Rights Declaration is not a legally binding treaty, its provisions are
considered customary international law and binding, as such, ort all member States of the
United Nations and therefore on Pakistan. Although the International Covenant on Civil and
Political Rights (ICCPR), the treaty that gives legal, force to many of the rights proclaimed in
the Human Rights Declaration, does not expressly prohibit exile, it codifies the right to return.
It's Article 12(4) states that "no one shall be arbitrarily deprived of the right to enter his own
country ". The- substance of Article 12(4) implicitly prohibits forcible exile, since an order that
would force a person to leave his country would in effect restrict his return to the country and
therefore would be in violation of this Article. It is evident that both .national and international
law forbid forcible exile. For whatever reason, a government cannot force individuals to leave
their own country or prohibit their return. Notwithstanding national and international efforts to
outlaw political exile, the practice persists in authoritarian and politically tinder-developed
societies as an undesirable legacy of ancient times. (The natives' right to return by Dr. Tariq
Hassan).

39. The upshot of the above mentioned discussion is that no restriction can be imposed on the
right of the petitioners to enter into Pakistan and they can come to Pakistan whenever they so
desire. These are the reasons for our short order dated 23-8-2007 which is reproduced herein
below for ready reference:--

"For reasons to be recorded separately, both the captioned petitions, being maintainable,
are accepted.

219
2. It is declared that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif,
under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 have an inalienable
right to enter and remain in country, as citizens oh Pakistan. Their return/entry into country shall
not be restrained, hampered or obstructed by the Federal or Provincial Government Agencies, in
any manner."

M.B.A./P-18/S Order accordingly.

220
221
 P L D 1988 Supreme Court 6458
[ Shariat Appellate Bench]

Present: Muhammad Afazal Zullah,

Chairman,
Pasim flaaan Shah, Shafiur Rahman,
Pir Muhammad Karam Shah and
Maulana Muhammad Taqi Usmani, JJ

FEDERATION OF PAKISTAN through

Secretary
Ministry of Interior, Government
of Pakistan, Islamabad--Appellant

8
www.Pakistanlawsite.com visited 3 June 2012.

222
versus

THE GENERAL PUBLIC--Respondent

Shartat Appeal No.17

of 1984, decided on 17th January 1988
(On appeal from the Judgment dated
27-3-1983 of the Federal Shariat Court,
Islamabad, passed in S.S.M. No.82 of 1983).

(a) Islamic Jurisprudence--

---Human rights--Limitations--Limitations
on human rights must be subordinated to the
most fundamental of all the human rights in

223
Islam, the one which cannot at all be
abridged by any limitation; namely, right to
justice. [p. 655] A

Pakistan v . Public at Large P L D 1986

S C 240; Verses 107 and 108 of Surah (IX)
"Tauba"; Almaida, Verse 33 of Sura (V);
Ahkam ul Quran, Vol. 2 p.596 by
Ibn-e-Arabi; (Almanar, Vo1.6, p.293);
A1-Quran-ul-Hakeem by Maulana Abdul
Majid Daryabadi; Tadabbur-ul-Quran,
Vo1.2, pp.278-9; Pakistan v. Public at Large
PLD 1987 S C 304 and Capt. (Retd.) Abdul
Wajid and others v . Federation of Pakistan
P L D 1988 S C 167 ref.

(b) Constitution of Pakistan (1973)--

224
---Arts.203-D & 203-F--Security of Pakistan
Act (XXXV of 1952), Ss.ll-A, 11-B &
11-C--Repugnancy to injunctions of
Islam--Legislative control on exercise of
property rights in the relevant provisions
was found justified on the touchstone of the
Islamic Injunctions on the one hand by
Federal Shariat Court and on the other it was
ordered to be omitted on the ground only of
harshness--Held, proper course was to
remove the harshness with the aid of the
Islamic Injunctions regarding another
fundamental right guaranteed by Islam;
namely opportunity of . showing cause
against abridgment of a basic right here, of
property--Supreme Court declined to uphold
the judgment of Federal Shariat Court in so
far as provisions of Ss.ll-A, 11-B & 11-C
were concerned. [p. 657] B, D & E

225
 Pakistan and others v . Public at Large P
L D 1987 S C 304 and Province of Sind v.
Public at Large P L D 1988 S C 138 ref.

(c) Constitution of Pakistan (1973)--

---Arts.203-D & 203-F--Repugnancy to

injunctions of Islam--Remedial amendment
of relevant
provisions--Government/Legislature can be
allowed option to make necessary
amendment, consistent with the spirit of the
Constitutional provisions in this behalf and
serious consequences can be saved, by the
Court permitting the amendment to be
indicated in its judgments, with or without
conditions--Such practice would, however,
be possible only if such amendment has
positive nexus with the provision in
226
question; and, supplies the omission without
which it would remain repugnant to the
injunctions of Islam. [p. 657] C

(d) Constitution of Pakistan (1973)--

---Arts.203-F & 203-D--Security of Pakistan

Act (XXXV of 1952), Ss.ll-A, 11-B &
11-C--Repugnancy to injunctions of Islam--
Amendments can be made in the provisions
on the two points (i) opportunity of hearing
at various stages where right to own, possess
and enjoy property is affected, and (ii) the
final adjudication by judicial forum while
keeping in mind the Supreme Court
Judgment in Pakistan and others v . Public at
Large P L D 1987 S C 304.

227
 Amendments can be made in the
provisions in question, on both the
points--one, opportunity of hearing at
various stages where right to own, possess
and enjoy property is affected; and, two, the
final adjudication by judicial forum. They
would be in accord, mutatis mutandis, with
the amendments which were indicated for
the Press and Publications Ordinance, 1963.
Before the preparation of this judgment, the
hearing of Shariat Appeal No.18-R of 1984
regarding Press and Publications Ordinance
having taken place, it was partly allowed.
The judgment of Supreme Court in that
appeal shall be kept in mind when
considering the amendments to be 4nade in
the provisions in question of the Security of
Pakistan Act. [p 6581 F

228
 The judgment of the Federal Shariat
Court to the extent it held the entire
provisions contained in sections 11-A, 11-B
and 11-C of the Pakistan Security Act, 1952
as against the injunctions of Islam and
directed their "omission" from the statute, is
set aside. The provisions shall continue to
remain on Statute book only if the necessary
amendments /provisions are made therein
with regard to right of opportunity of
hearing and right of appeal before and or
final adjudication by a judicial forum,
whenever an action is proposed to be taken
or is taken, under the provisions in question.
It would also be in accord with the
principles contained in the Holy Qur'an and
the Sunnah as discussed in the impugned
judgment that the words; "where the Federal
Government is of the opinion that ..." are
substituted by the words "where the Federal
Government is satisfied that ....". The right
229
of opportunity of hearing would ordinarily
be provided prior to the adverse action
proposed to be taken under those provisions.
However, exception can be made to the
effect that in case of emergency this
opportunity shall be afforded as soon after
the action as possible. Adequate provision
can also be made regarding the manner of
affording the opportunity of hearing at the
original and appellate stags. [p. 663] K

(e) Islamic Jurisprudence--

---Right of hearing--Dispensation--Principle.

As a corollary to the right of hearing,

acknowledged in Islam, one so-called
variation (there may be others) can be

230
visualised that whenever it is known to the
extent of certainty that if and when an
opportunity is afforded, the person
concerned "surely" would take a certain
position already taken as his defence, the
formalities of summoning him again for a
repetitive performance, could be dispensed
with. Application of this principle would
depend upon the circumstances of the
situation vis-a-vis the Law, each case and
particular action. [p. 662] G

Pakistan and others v. Public at Large P

L D 1987 S C 304; A1-Tauba, Verses 107
and 108; N.-W.F.P. v._ Hussain Pari PLD
1988 SC 144 and Pakistan v. Public at
Large PLD 1986 SC 240 ref.

(f) Constitution of Pakistan (1973)--

231
---Arts.203-D & 203-F--Security of Pakistan
Act (XXXV of 1952 ), Preamble--Power of
Federal Shariat Court and Supreme Court to
decide the question whether or not any law
or provision of law is repugnant to the
injunctions of Islam--Such repugnant law
ceasing to have effect on the day on which
the decision of the Court "takes effect"

Under Article 203-D the Federal Shariat

Court has the jurisdiction to decide the
question whether or not any law or provision
of law is repugnant to the injunctions of
Islam. The word "law" here means all laws,
made by any law-making organ or agency,
except those laws which are excluded by the
definition of law as contained in Article
203-B (c). Thus, barring those exceptions,
any law made by the Legislature including
232
the Pakistan Security Act, 1952, could be
lawfully examined under Article 203-D. If
as a result of this examination and decision
of the Court, such law is held by the Court
to be repugnant to the injunctions of Islam,
it would "cease to have effect" on the day on
which the decision of the Court "takes
effect". Same is the power of the Supreme
Court in appeal preferred under Article
203-F. [p. 662] H
Pakistan v . Public at Large P L D 1986 S C
240 ref.

(g) Constitution of Pakistan (1973)--

---Arts.203-D & 203-F--Repugnancy to

injunctions of Islam--Exception with regard
to right of opportunity of hearing made by
legislature in a provision of law--Held, if the
233
exception or for that matter its purpose, runs
counter to "injunctions of Islam as contained
in the Holy Qur'an and the Sunnah",
Supreme Court and Federal Shariat Court
would be competent to take the necessary
decision and declare such provision under
Art.203-D/203-F of the Constitution as
repugnant to injunctions of Islam. [p. 662] I

(h) Constitution of Pakistan (1973)--

---Arts.203-F, 203-D & 187(1)--Powers of

Shariat Appellate Bench of Supreme Court
highlighted.

When the Shariat Appellate Bench of the

Supreme Court determines matter brought
before it under Article 203-F read with

234
Article 203-D of the Constitution, except for
the relevant limitations contained in Chapter
3-A of the Constitution, it continues to be
the same Supreme Court as is visualized
under Part VII, Chapter 1 of the
Constitution. In that context it has the power
under Article 187(1) "to issue such
directions, orders or decrees as may be
necessary for doing ,complete justice in any
case or matter pending before it". Apart
from other conditions the expression
"complete justice" in the context of the
jurisdiction of the Court under Article 203-F
read with Article 203-D would have to be in
accord with the principles contained in or
derived from the Islamic injunctions as
contained in the Holy Qur'an and the
Sunnah.- [p. 663 ] J

235
 B . Z . Kaikaus v . Federal Government
of Pakistan and others PLD 1982 S C 409
and Abdul Hameed v. The State P L D 1983
S C 130 ref.

Dr. Riazul Hasan Gilani, Deputy

Advocate-General and Ch. Akhtar Ali,
Advocate-on-Record for Appellant.
Nemo for Respondent.
Date of hearing: 17th January, 1988.

JUDGMENT

MUHAMMAD AFZAL ZULLAH

(CHAIRMAN).--This appeal under Article
203-F of the Constitution is directed against
Judgment dated 27-3-1984 of the Federal

236
Shariat Court; whereby under Article 203-D
of the Constitution on suo motu examination
of certain laws including the Pakistan
Security Act (XXXV of 1952), some
provisions thereof were declared to be
repugnant to the injunctions of Islam.

2. The laws examined, which are of similar

character, are as
follows:- .
(1) The Sind Crime Control Act IV of 1974;
(2) The Prevention of Anti-National
Activities Act VII of 1974;

(3) The Punjab Maintenance of Public

Order Ordinance XXXI of 1960;

237
The Sind Maintenance of Public Order
Ordinance XXXI of 1960;
The Baluchistan Maintenance of Public
Order Ordinance XXXI of 1960;
The West Pakistan Maintenance of Public
Order Ordinance XXXI of 1960 (Applicable
to N.-W.F.P.);

(4) The Punjab Control of Goondas

Ordinance XXXV of 1959;
The Baluchistan Control of Goondas
Ordinance XXXV of 1959;
The West Pakistan Control of Goondas
Ordinance XXXV of 1959 (Applicable to
N.-W.F.P.);
(5) The Security of Pakistan Act XXXV of
1952;

238
(6) The West Pakistan Press and
Publications Ordinance XXX of . 1963.

3. The provisions of the Pakistan Security

Act, 1952, which were held repugnant to the
injunctions of Islam wholly or partly, read as
follows: -
"11-A. (1) Where the Federal Government is
of the opinion that any undertaking is being
used, whether with the aid of funds from
foreign sources or otherwise, or is likely to
be used, for the purpose of making, printing,
publishing or otherwise disseminating news,
reports or information, likely to endanger
the defence, the external affairs or the
security of Pakistan, or any part thereof, or
for the purpose of promoting such interests
of any foreign State as are in conflict with
239
the interests of Pakistan, it may, by order,
remove the owner or, if there be more than
one, all or any of them, and, in the case of a
company, all or any of the directors,
managing directors, managing agents or any
other person., from the

control or management of such undertaking,

and appoint a person to take possession of
the whole or any part of the undertaking or
its property, movable or immovable, and
exercise such powers and perform such
duties, including, in the case of a company,
all or any of the powers or duties of the
Board of Directors, as may be set down in
the order, and such appointment may at any
time be revoked, and a fresh appointment
made on such conditions and with such
limitations as the Federal Government may
determine.
240
(2) Where an order has been made under
subsection (1), the Federal Government,
or any authority or person authorized by it
in this behalf, shall, as soon as possible,
make arrangements to transfer, subject to
such conditions as may be deemed fit, and
transfer. by way of sale, in any manner
considered expedient, any right, title or
interest in the

undertaking, or if the undertaking be a

company, in the shares thereof, of any
director or shareholder to any other person
not acting for or on behalf of or in collusion
with. such director or shareholder.

(3) Every sale under subsection (2) shall be

subject to confirmation by the Federal
241
 Government, and such confirmation shall
be notified in the official Gazette.

(4) If such undertaking as aforesaid be a

company, the Federal Government may
give a direction that the shares held by
every or any director or shareholder shall
be seized, wherever the shares may be, for
sale under subsection (2), in such manner
that such director or shareholder shall
effectively cease to hold them.

(5) Where possession has been taken under

subsection (1), or a direction has been
given in pursuance of subsection (4), any
police officer may seize any property of
the undertaking, or the shares thereof, or
any document relating thereto, found
anywhere in Pakistan, and any Magistrate
242
 may, by warrant authorize any police
officer not below the rank of
Sub-Inspector, to enter upon and search
for any such property, share or document
in any premises where the same may be or
may reasonably be suspected to be.

(6) The Federal Government, or any

authority or person authorized by it in this
behalf, may, by order, make such
arrangements as may be considered
expedient to ensure that the continuity of
the functioning of the undertaking
affected by an order under subsection . (1)
is not interrupted during the period
between the date of such order and the
date on which the person appointed under
subsection (1) makes over the control and
management of the undertaking under
subsection (5) of section 11-B, and any
243
 expenditure incurred in connection with
such arrangements, including the
remuneration of any person or persons,
shall be met as the expenses of the
undertaking.

(7) If within fourteen days of the

promulgation of the Security of Pakistan
(Amendment) Ordinance, 1961, or the
publication of a notification under
subsection (3), the person whose right,
title or interest has been transferred by
sale, or the person to whom the sale has
been made, makes to the Federal
Government a representation against the
sale, the Federal Government, after
perusal of the record, may, subject to such
conditions as it may deem fit to impose,
set aside the .sale and order a fresh sale.

244
Explanation (I).--A fresh sale under this
subsection shall be deemed to be a sale
under subsection (2).

Explanation (1I).--The Federal Government

shall not be bound to hear any of the parties
or their counsel or agent or to examine any
witness or document, before making an
order under this subsection.

(8) Before a sale is set aside under

subsection (7), the Federal Government
may require the person making the
representation to pay an amount sufficient
to meet the expenses of the stile, and to
forfeit to the Federal Government such
other amount, not exceeding twenty-five
per cent of the sale price, as may be
determined by the Federal Government.
245
(9) If the purchaser fails to pay the full price
of the sale, the property may be resold,
and any deficiency which may happen on
resale and all expenses attending such
resale may be recovered from him.

(10) Any amount payable under this

section, whether as unpaid price, or as
forfeiture or otherwise, if not paid within
the time specified, if any, shall be
recoverable as arrears of land revenue.

(11) The sale shall be complete after all

proceedings under this section relating to
sale or resale, as the case may be, have
been concluded and all sums due from the
purchaser in whose favour the sale has

246
 been concluded have been paid by or
recovered from him.

11-B.- (1) On the completion of sale the

Federal Government or the authority or
person, as the case may be, arranging the
sale shall deliver possession of the
property, or in the case of shares, of the
certificates relating thereto, to the
purchaser, supported by a sale certificate.

(2) If in consequence of the action taken

under subsection (1) of section 11-A, the
Board of Directors of a company has
ceased to function, the person appointed
thereunder shall, immediately after the
delivery of possession under subsection
(1), call, notwithstanding anything to the
contrary in the Companies Act, 1913, or
247
 the constitution of the company, by public
advertisement, a general meeting of the
company to be held under his
chairmanship for the purpose of electing
directors.

(3) A meeting called under subsection (2)

shall, as far as practicable, be held and
conducted in accordance with the Articles
of Association of the company.

(4) On the conclusion of a meeting held

under this section, a record of the
proceedings shall be made and certified
by the Chairman, and such certificate
shall be conclusive proof of the directors
named therein having been validly
appointed.

248
(5) Immediately after the record of
proceedings is certified under subsection
(4), the control and management of the
company shall be made over to the
directors.

11-C.- (1) Any amount realized as price

from a sale, or from a fresh sale, as the
case may be, under section 11-A, shall,
after deducting the expenses of the sale,
be paid, within such time as may be
specified by the Federal Government, to
the person whose right, title or interest
has been transferred by such sale.

(2) Where the shares of more than one

person have been sold in a single lot, the
amount payable shall, with the
shareholders' consent, be paid to them
249
 against a joint discharge, and in the
absence of such consent, the amount shall
be paid to each shareholder in proportion
to the paid amount of his shares.

(3) If the person to whom any right, title or

interest, is transferred under section 11-A
has deposited any moneys before the sale
to him is set aside, the amount so
deposited or paid shall, after deducting the
amount, if any, due from such person
under any of the provisions thereof, be
refunded to him, and thereupon .all
documents executed and endorsements
made in his favour shall stand cancelled.

4) Where, in order to effect the transfer of

any property, instrument or share, any
document or endorsement is required to be
250
 executed or made by a person whose right,
title or interest, is transferred, the Federal
Government or any authority or person
authorized by it in this behalf, may
execute such document or make such
endorsement, and any document so
executed and endorsement so made shall
be deemed to have been executed and
made by the person whose right, title or
interest is so transferred, and shall be
conclusive proof of such transfer for all
purposes.

(5) In this section, and in section 11-A, the

expression 'expenses of the sale' shall
include expenditure incurred in
connection with any dispute arising out of
the sale, and such other expenditure as the
Federal Government may determine to be
such expenses.
251
(6) The provisions of this section and
sections 11-A and 11-B shall have effect
notwithstanding anything to the contrary
contained in any law other than this Act,
or in any instrument, deed or document.

(7) For the removal of doubt it is hereby

declared that where a person appointed
under subsection (1) of section 11-A is
required to exercise the powers or
perform the duties of the Board of
Directors of a Company, the provisions of
the Companies Act, 1913, shall, as
respects duties not expressly set forth in
the order under subsection (1) of section
11-A, not apply to him.

252
12. Regulation of publication of certain
matters.--(1) Where the Federal Government
is satisfied that in the interest of the defence,
the external affairs or the security of
Pakistan it is necessary so to do, the Federal
Government or any authority empowered by
it in this behalf may, by order addressed to a
printer, publisher or editor, or printers,
publishers or editors generally, require that
all matters relating to a particular subject or
class of subjects affecting the defence, the
external affairs or the security of Pakistan
shall, before being published in any
document or class of documents, be
submitted for scrutiny to any authority
specified in the order, who shall, within
seventy-two hours of its submission, either
approve of its publication or, if it is satisfied
that it is likely to prejudicially affect the
defence, the external affairs or the security
of Pakistan prohibit it and no matter the
253
publication whereof has been so prohibited
shall be published.

(2) Any person affected by an order under

subsection (1) prohibiting the publication
of any matter may, within seven days of
the communication of the order, appeal
against it to the District Judge of the
district in which such person resides.

Provided that where appeals against the

same order have been made by persons who
reside in different districts all such appeals
shall be preferred to the senior of the District
Judges of such districts.

Explanation.--A person shall be deemed to

reside in the district which he ordinarily

254
resides or carries on business or personally
works for gain.

(3) The District Judge to whom an appeal

has been made under subsection (2) shall,
after giving the appellant an opportunity
of being heard, consider the appeal as
speedily as possible and pass such orders
thereon as he may deem fit; and the orders
shall be final.

(4) If any person contravenes any order

made under subsection (1), then, without
prejudice to any other proceedings which
may be taken against such person, the
Federal Government may declare to be
forfeited to Government every copy of
any document published or made in

255
 contravention of such order and any press
used in the making of such document."

(Section 12 as amended in pursuance of the

impugned judgment)

4. Sections 11-A, 11-B and 11-C were

found repugnant to the injunctions of Islam
and direction was given for their "omission".
Section 12 was found partially repugnant
and was ordered to be amended accordingly.
Federation of Pakistan felt aggrieved by this
part of the Judgment and filed this appeal.

5. Learned Deputy Attorney-General has

stated that the Government has accepted the
decision regarding section 12 of the Act and
amendment has been made accordingly.

256
Therefore, only sections 11-A, 11-B and
11-C are now the subject-matter of this
appeal.

6. He raised two-fold contentions; one, that

no reference has been made to injunctions of
Quran and Sunnah in the impugned
Judgment, therefore, as laid down by this
Court in Pakistan v. Public at Large (P L' D
1986 S C 240) it is liable to be set aside.
And two, that the Security of Pakistan Act
having been approved generally and found
not repugnant to the injunctions of Islam in
the detailed discussion in the impugned
Judgment, the provisions in Sections 11-A,
11-B and 11-C have been held repugnant
only on the ground of "harshness", without
justifying it on the touchstone of the
injunctions of Islam.

257
 7. When questioned, whether these
provisions could not be treated as repugnant
to the injunctions of Islam on the ground of
negation of the right of the opportunity of
hearing, before action thereunder is taken,
he relied on verses 107 and 108 of Surah
(IX) Tauba", relating to iMasjid-i-Zarar, to
contend that in the context of 'security' that
right can be dispensed with. In this behalf he
also contended that the wisdom and
intention of the legislature in making an
exception to a .general rule cannot be
questioned before the Federal Shariat Court;
nor, could it exercise the power under
Article 203-D of the Constitution, on that
basis.

8. It is correct that the Federal Shariat

Court tried to give the extent of various
human rights in Islam including those
258
relating to life, liberty, thought, expression,
property, equality, honour and others; and,
we would add dignity of man, soul and
body. It is also correct that an effort has
been made to highlight the limitations on the
exercise of these rights and power of the
State to make laws in that behalf. Learned
Deputy Attorney-General is right in
claiming that the Court justified the
preventive measures generally, as contained
in the provisions like those in Sections 11-A,
11-B and 11-C of the Act.

9. In this context for example amongst

others, Verse 33 of Sura (V) (Almaida) has
been interpreted in paragraph 160 of the
impugned judgment. This verse and the next
Verse 34 read as follows:-

259
"33 -The recompense of those who war
against God and His Messenger and strive in
the land, spreading mischief (therein) is only
that they be slain or crucified or their hands
and their feet should be cut off, from the
opposite sides, or be banished from the land;
This, for them shall be the disgrace in this
world, and for them, in the Hereafter shall
be a great torment.

34 -Except those who repent before you gain

power over them; know that God is
Oft-pardoning, Merciful.

(Translated by S.V. Mir Ahmed Ali).

While commenting on the subject of this

Quranic Verse, it was observed: "Some of

260
the commentators of the Holy Quran include
preventive action also within the scope of
the Verse Q 5:33 about Hiraba. In this
connection the first important observation is
that of Imam Malik. He said that if a
Muharib (belligerent who fights with Allah
and His Prophet) kills somebody, he will be
put to death but if he does not commit
murder he can be awarded the punishment
out of the four sentences described in the
above verse, which is appropriate for him.
He said:

(It is immaterial for the applicability of the

verse) whether the person striving after
corruption does it secretly or clandestinely,
or he does it openly or publicly. (Ahkam ul
Quran, Vo1.2, p.596 by Ibn-eArabi). The
secret or mysterious nature of
mischief-mongering will include preparation
261
also as striving after corruption would
include preparation for spreading corruption
or mischief. The words wal mustattirro fi
zalik i.e. whether he does it clandestinely
used by Imam Mali k, are extremely
significant.

"Allama Rashid Raza writes in the

commentary of Verse 33 of Chapter 5:

(Irrespective of the contradictory and

opposing views and narrations it is manifest
that the order in this verse is general and is
applicable to every man who commits such
acts in an Islamic state, and he is subdued
and arrested in such state that either he is in
fact committing such acts (of belligerency or
he has achieved the capability necessary for
their commission). (Almanar, Vol.6,p.293).
262
It is clear that attainment of capability is
only a stage of preparation from which one
can feel satisfied that if proper preventive
action is not taken the person making such
preparation may embark upon corruption
and mischief-mongering as planned by him.

"Maulana Shabbir Ahmad Usmani includes

criminal conspiracy and seditious
propaganda also within the category of
offences dealt with by this verse.
Propaganda may be something manifest, but
criminal conspiracy may be a preparatory
stage for commission of the criminal offence
in future. (see his commentary on verse
Q.5:33).

"Maulana Abdul Majid Daryabadi said that

expulsion or imprisonment can be ordered
263
even though murder might not have been
committed and the arrest may have been
made when there was either preparation for
it or even attempt. (Al-Quran ul Hakeem, by
Maulana Abdul Majid Daryabadi).

"Maulana Ameen Ahsan Islahi writes in the

commentary of this verse:

"The words of the verse in the Holy Quran

are conclusive proof that the Government is
empowered to take such action as it
considers necessary, keepirig in view the
circumstances and consequences of any
breach of security and peace, extant as well
as expected. The view of those persons is
correct who say that the Government is
vested with the authority to take all effective
measures expedient in the circumstances for
264
maintenance of peace and security, and
elimination of mischief. In such a situation it
is not sufficient consideration that the group
of criminals has only caused financial loss.
What is essentially to be kept in view is the
time, place and objectives and intentions of
the criminals and their likely consequences.
"(Tadabbur ul Quran, Vo1.2, pp.278-9)."

We need not go into the afore-discussed

question because no appeal has been filed
before this Court by any party aggrieved by
the justification of the measures provided in
the Security Laws in general.

10. However, on principle, we would not

hesitate in laying down the rule that all these
limitations on human rights must be
subordinated to the most fundamental of all
265
the human rights in Islam, the one A which
cannot at all be abridged by any limitation;
namely, right to justice. It was ruled by this
Court in Pakistan v. Public at Large PLD
1987 SC 304) that: "Man having been born
in the image of Allah cannot be permitted in
matters of judgment to do injustice." It was
also held in Capt. (Retd.) Abdul Wajid and
others v. Federation of Pakistan (P L D
1988 SC 167) that:-

"The Quran and Sunnah are full of

Injunctions emphasising undiluted justice,
with its much more pronounced importance
in our polity, as compared to Western
jurisprudence. It is one
of main pillars of Islam--after Touhid and
Risalat--like Taqva in one sense."

266
It mould be examined in due course,
whether this rule is relevant and needs to be
observed in the present context of
abridgment of human rights.

12. The first question for determination is;

whether after having held that on the
touchstone of Islamic injunctions the
legislature has the power to control the. right
to enjoy property and freedom of Press,
trade and business for the sake of security,
defence and external affairs or other similar
interests of Pakistan, could the Federal
Shariat Court annul the disputed provisions
on the touchstone of what it thought to be
"harshness"; which was spelled out as
follows:-

267
"These sections cannot be justified in Sharia.
If any judicial authority finds that any
undertaking is being used to endanger inter.
alia the security of Pakistan, it would be
open to that authority to seize and forfeit
such undertaking. But such power cannot be
allowed to be exercised by a Government
merely on the basis of its opinion. This
amounts to encroachment on the Sharia
freedom to own property and to carry on
trade' or business. Clearly the object of
empowering the Government to act on
opinion by excluding judicial trial and to
forfeit one's property would be repugnant to
the Quran and the Sunnah."

It is also necessary here to notice that while

discussing the sanctity of the right to
property, it is observed in the impugned
Judgment as follows:-
268
"(v) RIGHT TO PROPERTY

Alongwith security of life, Islam has also

guaranteed with equal clarity and force the
sanctity and security of the right of
ownership and property, see the address of
the Farewell Hajj . The Holy Qur'an declares
that the taking of some one's property is
completely prohibited unless it is acquired
by lawful means as permitted in the Shariah.
The Quran categorically declares "Do not
devour one another's wealth by false and
illegal means" (2:188)." The Holy Prophet
declared a man to be martyr in the way of
Allah if he is killed while defending his
lawful property (Bukhari). Explaining this
principle of the sanctity of the lawful
property of the people, Imam Abu-Yusuf

269
mentions the legal maxim developed by
Muslim jurists.

(It is not lawful for the Government to take

something out of the possession of someone
save according to an established and
approved right (k. al-Kharaj, discussion On
Ihya' al-Mawat, also Zarqa, Vol.tt, p.1081):
The limits of the right of Government to
property was discussed in detail in
Muhammad Ameen's case (P L D 1981 FSC
23)."

The entire approach of the Federal Shariat

Court on question if individual's right to
property was its sanctity and protection
except where the legislature has to control it
for the defence, security, foreign affairs etc.
270
of Pakistan. This limitation was found
justified on the touchstone of the injunctions
of Islam. Therefore, we do not agree with
the learned Deputy Attorney-General that
the injunctions have not been referred in the
impugned judgment. The rule in this behalf
laid down by this Court relied upon by him,
has in our view, been satisfied. His
argument on that point is, therefore, without
any force.

However, with respect, we find that the

Federal Shariat Court fell into error in the
reasoning from the aforenoticed point
onward. On the one hand legislative control
on exercise of property rights in the relevant
provisions was found justified on the
touchstone of the Islamic injunctions; and,
on the other they were ordered to be omitted
on the ground only of "harshness". The
271
proper course was to remove the harshness
with the aid of the Islamic injunctions
regarding another fundamental right
guaranteed by Islam; namely, opportunity of
showing cause against abridgment of a basic
right--here, of property. And i indeed the
harshness in similar provisions of West
Pakistan Press and Publications Ordinance
XXX of 1963, was removed by the Court in
the same judgment. Remedial measures
were ordered. Failing which only, they
would have ceased to have effect. This
course was not adopted in regard to the
provisions in question in the Pakistan
Security Act. For these reasons, therefore,
the impugned judgment cannot be upheld in
so far as these provisions are
concerned.--Sections 11-AJ 11-B and 11-C.

272
 12. The next question relates to the
remedial amendment in these provisions.
During the arguments, it was at one stage
thought, that once repugnancy to Islamic
injunctions is found in a provision of law,
there is no escape from the same "ceasing to
have effect"; and, that the Government/
Legislature cannot be allowed option to
make necessary amendment in order to save
that effect. It was, on examination,
ultimately agreed and rightly so, that
consistent with the spirit of the
Constitutional provisions in this behalf, the
said serious consequence can be saved, by
the Court permitting the amendment to be
indicated in its judgments, with or without
conditions. This would, however, be
possible only if such amendment has
positive nexus with the provision in
question; and, supplies the omission,

273
without which it would remain repugnant to
the injunctions of Islam.

13. On this view of the matter in this case,

it was essential for the Federal Shariat Court
to spell out the remedial measures fort
removing the element of "harshness". The
defects in that behalf, as~D it appears from
the reasoning in the impugned judgment,
regarding similar provisions in the Press and
Publications Ordinance could be removed
by: (1) Adequate provision for opportunity
of hearing; and (2) Necessary provision for
final determination of the disputes by a
judicial forum. Both these points have been
taken care of in the said Ordinance, by
directing amendments in its various
provisions, including sections 48 and 49
thereof. As to the first point (opportunity of
hearing) it is further pointed out that this
274
Court has discussed the same at length its
basis in injunctions of Islam in Pakistan and
others v. Public at Large (P L D 1987 S C
304). The same can be seen as guidelines in
this case as well. We have also rendered
another decision on this subject in Province
of Sind v. Public at Large (P L D 1988 S C
138). It has been ruled therein that the
observance of the principles regarding
"opportunity of hearing" would be satisfied
in cases of emergency by affording it as
soon after the action as is possible.
Otherwise, the well-established rule in cases
other than those of emergency, remains
intact; that it should be the prior opportunity.
The reasoning of the Federal Shariat Court
for providing effective and final judicial
remedy in original section 12 of the Security
of Pakistan Act and sections 48 and 49 of
the Press and Publications Ordinance, if
applicable to right of trade, profession and
275
expression/ publication, it would be more
pronouncedly applicable to the exercise of
right to property involved in the provisions
in question in this case.

14. Therefore, in the light of foregoing

discussion, amendments can be made in the
provisions in question, on both the
points;--one, opportunity of hearing at
various stages where right to own, possess
and enjoy property is affected; and, two, the
final adjudication by judicial forum. They
would be in accord, mutatus mutandis, with
the amendments which were indicated for
the Press . and Publications 1 Ordinance,
1963.

15. It is clarified that before the preparation

of this judgment. the hearing of Shariat
276
Appeal No.18-R of 1984 regarding Press
and Publications Ordinance having taken
place, it was partly allowed. The judgment
of this Court in that appeal shall be kept in
mind when considering the amendments to
be made in the provisions in question of the
Security of Pakistan Act.

16. This is not all. At this stage it is also

necessary to deal with two other arguments
of the learned Deputy Attorney-General;
one, relating to the right of opportunity of
hearing; and, the other regarding power of
the Court under Article 203-D, vis-a-vis that
of the legislature.

17 . There is detailed discussion on the first

point with the relevant conclusions in the
majority judgment in the case already
277
noted--Pakistan and others v. Public at
Large (P L D 1987 S C 304). Nevertheless
learned Deputy Attorney-General has relied
on the following verse in the Holy Qur'an
(and also on the relevant Sunnah)
S.9--Al-Tauba verses 107 and 108 (the case
of Mosque de Zarar):-

"107 -And there are those who put up a

mosque By way of mischief and
infidelity--To disunite the Believers--And in
preparation for one who warred against
Allah And His Apostle aforetime. They will
indeed swear That their intention is nothing
but good; but Allah doth declare That they
are certainly liars.

108 -Never stand thou forth therein. There is

a mosque whose foundation was laid from
278
the first day On piety; it is more worthy Of
thy standing forth (for prayer) Therein. In it
are men who Love to be purified; and Allah
Loveth those who make themselves pure."

(Translation by Abdullah Yusuf Ali)

18. The Commentary on Verses Nos.107

and 108 at pages 381 and 382 by S.V. Mir
Ahmed Ali is also reproduced below as it
contains the relevant Sunnah also:-

107 -Abu-Amir was a nobleman of the

Khazraj tribe, and was very well versed in
the Torah and the Evangel. He used to
always address the people of Medina about
the advent of the Last Prophet of God,
giving the description of the Holy Prophet

279
Muhammad. But the Holy Prophet
emigrated to edina and all the people
flocked to him and none cared for Abu Amir
in the least and he got envious of the
Prophet of God and became his vehement
opponent. At last after the Battle of Badr he
ran away from Madina and joined the
heathens, at Mecca and participated in the
Battle of Ohod and was the first to shoot the
first arrow on the Muslims. He took part
also in the Battle of Honain but when none
of his efforts were of any avail to him, he
went .to Hercules the Emperor of Rome, to
instigate him against the Muslims. He wrote
letters to the gang of his fellow-hypocrites
saying, that very shortly he would march
with a huge army to crush the Muslims at
Medina and he would need a mosque of his
own to preach his own doctrines, and
.desired them to put a mosque at Quba
(about three miles from Medina) to counter
280
the Mosque built there by the Holy Prophet.
Thus, Tha Laba bin Hatib and the twelve
others of the hypocrites quickly constructed
a Mosque (called the Mosque of Zarar, i.e.,
the Harmful Mosque). But by the time the
Mosque was completed Abu Amir died at
Syria. When the Holy Prophet was about to
start on his expedition to Tabuk the
hypocrites requested the Holy Prophet to
solemnize it by his praying in it. The Holy
Prophet first got .on a mule to go to the
Mosque but the animal would not move
towards it. He then got on a horse-- the
horse also did the same. Then the Holy
Prophet started on foot alongwith some of
his companions but their feet became
wonderfully heavy and they could never
walk. Then the Holy Prophet said: 'God does
not will it,' He would consider the question
of praying in the Mosque after his return
from Tabuk."
281
"108 -When on his return from Tabuk the
hypocrites once again approached him for
his praying in the mosque, then arrived
God's command through this verse. The
Mosque was demolished, for it was founded
just to create dissension among the
believers."

19. As already mentioned, the general

question regarding right of opportunity of
hearing, before any right of a citizen
guaranteed by Islam, is taken away or
abridged, has been upheld in Pakistan and
others v. Public at Large (P L D 1987 S C
304). The limited question raised in this case
by the learned Deputy Attorney-General is
that; if in matters relating to Zarar and
Fasad-fil-Arz and for similar other reasons
for making proper exceptions, the power is
282
exercised by a law-making organ of the
State, the Federal Shariat Court, or for that
matter, the Supreme Court has no
jurisdiction to declare the
exception concerned as against injunctions
of Islam under Article 20:3-D read with
Article 203-F of the Constitution.

20. The question of making exceptions with

regard to a general rule contained in Islamic
injunctions has been dealt with by this Court
in N.-W.F.P. v. Hussan Pari (P L D 1988 S
C 144); and Pakistan v. Public At Large (P L
D 1986 S.C.240). In the former case, it was
held that where Zaroorat is made the basis
for an exception, the Federal Shariat Court
has the power under Article 203-D to
declare that such provision (relating to
exception) is against the injunctions of Islam
if it is not found as a case of Zaroorat, in
283
accordance with the injunctions of Islam.
Some of the wed-known limitations in this
behalf have also been spelled in latter case.
If those limitations are applicable to Courts,
they would, with necessary variations,
depending upon each situation, mutatis
mutandis, be also applicable to the law
making agencies (see page 253 et sequens of
the report).

It is, perhaps, in obedience to the

conditions Nos.(iii) and (iv) at page 254 of
the above-cited case, that the learned Deputy
Attorney-General in support of his plea that
the exception/ Zaroorat is established
vis-a-vis the provision in question, relied on
the case of Masjid-i-Zarar already cited,
from the Holy Qur'an. These conditions are:-

284
''(iii) Whether a relaxation is approvable
on the accepted rules and principles of
Ijtihad and Ijmah, old or new, Zaroorat or
Zarar; Tawil, or Takhsis; Urf and other
recognized methods like Qiyas Ihsan,
Istehsan, Masalah Mursalah etc.?

(iv) Whether in a case a new principle like

the foregoing, is visualised there is
support for the same in the Holy Qur'an
and the Sunnah?

He confined himself to the case of

Masjid-i-Zarar and did not try to seek
support for his contention from any other
material regarding the Islamic injunctions as
contained in the Holy Qur'an and the
Sunnah--their interpretation or' application.
We would, therefore, assuming for .the sake
285
of arguments, that the legislature has the
power to make exceptions with regard to
certain rights guaranteed by Islam, whether
by way of its denial, abridgment or control,
would deal with the case of Masjid-i-Zarar;
so as to see whether it justifies the denial of
the right of hearing in the situation
visualised in sections 11-A, 11-& and 11-C
of the Security of Pakistan Act.

21. As is apparent from the text of Sections

107 and 108 (verses) of Sura 9 as also the
Sunnah in that behalf related in various
commentaries, the Holy Prophet (P. B . U .
H) did not afford formal opportunity of
hearing to those, who were responsible for
constructing the Masjid-i-Zarar before
directing its demolition. The impression is
straightaway gained as if they were not

286
entitled to an opportunity of showing cause
against domolition.

22. It has already been noticed in

connection with the arguments of the
learned Deputy Attorney-General, that the
Federal Shariat Court did concede power of
the legislature similar to that visualised in
the provisions in question, when the
following basic condition is satisfied:-

"Where the Federal Government is of the

opinion that any undertaking is being used,
whether with the aid of funds from foreign
sources or otherwise, or is likely to be used,
for the purpose of making, printing,
publishing or otherwise disseminating news,
reports or information, likely to endanger
the defence, the external affairs or the
287
security of Pakistan, or any part thereof, or
for the purpose of promoting such interests
of any foreign State, it may, by order,
remove the owner or, " (Section 11-A)

23. It is also correct that, amongst others,

reliance was placed on Verse 33 of
Sura-5--Almaida and related material which
deals with those, who wage war against the
State or create disorder in the country or
spread mischief or do similar other acts. And
it is in that context that we, agreeing with
the learned Deputy Attorney-General, have
already held that the subject-matter of the
provisions in question cannot be treated as
repugnant to the injunctions of Islam. He,
however, wants us to hold further that in
addition to the abridgment and control of
right to hold and enjoy ones property
guaranteed by Islamic injunctions, that part
288
of the provisions which denies the right of
hearing to the party concerned should also
be treated as not repugnant to those
injunctions. His interpretation of the words;
"Where the Federal Government is of the
opinion" in fact is that on the basis of the
case of Masjid-i-Zarar, the Federal
Government can entertain, hold and execute
an opinion in the form of an order in cases
covered by the provisions in question, even
when opportunity of showing cause is not
afforded to the accused party.

24. The case .of Masjid-i-Zarar is clearly

distinguishable on more than one grounds.
The persons concerned did have enough
opportunity of satisfying the Prophet (P. B .
U . H .) with regard to their beliefs and
practice, which had already been
demonstrably found to be antiState. They
289
had also enough opportunity of convincing
the Prophet (P. B . U . H) despite their
previous conduct that they were not in the
wrong, when an attempt was made by them
to persuade him to visit and offer the prayer
in the said mosque. Some signs/evidence as
mentioned in the commentary quoted above,
had already appeared within the knowledge
of the persons concerned indicating that
their stand was wrong. Not only this, in
order to remove all doubts, Allah, the all
knowing, Himself became the Witness in the
matter--and this shows how important is the
right of an accused person to defend himself.
The words used in section (Verse) 107 are:-

One translation we have already quoted

wherein means "Allah doth declare". In
another translation the same words mean
290
"God (Himself) bears witness"
--Muhammad Asad's The Message of the
Quran.

25. It is not possible to imagine that after a

verdict was rendered by Allah Himself on a
controversy, then His Messenger (P . B. U .
H . ) would not or could have declined to act
upon it on the basis of any technical or
procedural hindrance. However, in this case
that hindrance also was not there because;
firstly, Allah Himself as a Witness
established that the persons concerned (the
accused) were guilty. And it also establishes
the rule: that in matters of right guaranteed
by Islam no adverse action can be taken
except on the basis of some
material/evidence/proof/testimony, vis-a-vis
misuse of the right. Secondly, even when
.Allah had Himself furnished the evidence
291
by becoming Witness. He felt it necessary
presumably on account of the importance of
the right of hearing that it was further
revealed in Verse-107: that when those
persons would be summoned to answer the
accusation, they would "swear that..." a
particular reply. In other words a principle
was being laid down that though those
persons were entitled to right of hearing, yet
on account of their utterances and previous
opportunity of explaining their position, they
would state what Allah knew and the same
is then rendered in the words of those
persons, in Verse-107 itself. In one
translation already quoted the words are:-

"They will indeed swear That their intention

is nothing But good."

292
but in the other translation by Muhammad
Asad in the Message of the Qur'an, the
translation is as follows:-

"And they will surely swear (to you, 0

believers), 'We had but the best of
intentions'--the while God (Himself) bears
witness that they are lying."--

26. In the light of the foregoing discussion,

it can be safely said that as a corollary to the
right of hearing, acknowledged in Islam, one
so-called variation (there may be others) can
be visualised that .whenever it is known to
the extent of certainty that if and when an
opportunity is afforded the person concerned
"surely" would take a certain position
already taken as his defence, the formalities
of summoning him again for a repetitive
293
performance, could be dispensed with. It is
not necessary to elaborate this principle here
any further, Its application would depend
upon the circumstances of the situation
vis-a-vis the Law, each case and particular
action.

27. The next point raised by the learned

Deputy Attorney-General regarding the
"power of the Court" under Article 203-D as
against that of the legislature, -.vas
discussed in some detail in the case of
Pakistan v . Public at Large (P L D 1986 S C
240) . It is reiterated that under Article
203-D the Court has the jurisdiction to
decide the question whether or not any law
or provision of alaw is repugnant to the
injunctions of Islam. The words "Law" here
means all laws, made by any law-making
organ or agency, except those laws which
294
are excluded by the definition of law as
contained in Article 203-B(c). Thus barring
those exceptions any law made by the
legislature including the Pakistan Security
Act, 1952, could be lawfully examined
under Article 203-D. If as a result of this
examination and decision of the Court such
law is held by the Court to be repugnant to
the injunctions of Islam, it would "cease to
have effect" on the day on which the
decision of the Court "takes effect",--See
Clause (3) of Article 203-D. Same is the
power of the Supreme Court in appeal
preferred under Article 203-F.

28. The only remaining contention raised

by the learned Deputy Attorney-General to
the effect that when a legislature in its
wisdom makes a certain exception with
regard to right of opportunity of hearing as
295
in the provisions in .dispute, the Court has
no power under Article 203-D/203-F to
examine such wisdom or for that matter)
intention of the legislature, is also without
force. It is obvious that if the exception or
for that matter its purpose, runs counter to
"the injunctions of Islam as contained in the
Holy Qur'an and the Sunnah" as already
interpreted in the aforesaid case, the Courts
will be competent to take the necessary
decision and declare it under Article
203-D/203-F of the Constitution. It may be
mentioned here that, as held in the cases of
B . Z . Kaikaus v . Federal Government of
Pakistan and others (P L D 1982 S C 409)
and Abdul Hameed v. The State PLD 1983
S C 130), when the Shariat Appellate Bench
of the Supreme Court determines matter
brought before it under Article 203-F read
with Article. 203-D of the Constitution,
except for the relevant limitations contained
296
in Chapter 3-A of the Constitution, it
continues to be the same Supreme Court as
is visualized under Part VII, Chapter 1 of the
Constitution. In that context it has the power
under.Article 187(1) "to issue such
directions, orders or decrees as may be
necessary for doing complete justice in any
case or matter pending before it".. Apart
from other conditions the expression
"complete justice" in the context of the ~
jurisdiction of the Court under Article 203-F
read with Article 203-D would have to be in
accord with the principles contained in or
derived from the Islamic injunctions as
contained in the Holy Qur'an and the
Sunnah.

29. Accordingly, this appeal is partly

allowed. The Judgment of the Federal
Shariat Court to the extent it held the entire
297
provisions contained in sections 11-A, 11-B
and 11-C of the Pakistan Security Act, 1952
as against the injunctions of Islam and
directed their "omission" from the statute, is
set aside. The provisions shall continue to
remain on Statute book only if the necessary
amendments /provisions are made
therein--as indicated in this judgment with
regard to right of opportunity of hearing and
right of appeal before and on final
adjudication by a judicial forum whenever
an action is proposed to be taken or is taken
under the provisions in question: It would
also be in accord with the principles
contained in the Holy Qur'an and the Sunnah
as discussed in the impugned Judgment that
the words; "where the Federal Government
is of the opinion that ...." are substituted by
the words "where the Federal Government is
satisfied that......... ‘The right of
opportunity of hearing would ordinarily be
298
provided prior to the adverse action
proposed to be taken under those provisions.
However, exception can be made to the
effect that in case of emergency this
opportunity shall be afforded as soon after
the action as possible. Adequate provision
can also be made regarding the manner of
affording the opportunity of hearing at the
original and appellate stages.

30. Sufficient guidelines and directions

have been given in the foregoing discussion
for bringing the provisions in question in
accord with the injunctions of Islam. In
order to afford adequate time for doing the
needful, this decision shall take effect on 1st
January, 1989 and, unless as.discussed in
this Judgment, amendments /provisions are.
made in the Security of Pakistan Act, 1952,
in the meanwhile, Sections 11-A, - 11-B and
299
11-C thereof shall cease to have effect on
the said date--1st January, 1989.

31. There shall be no order as to costs

M.B.A./F-64/S Appeal partly allowed

300
 1994 S C M R 1028
[Supreme Court of Pakistan]
Present: Nasim Hasan Shah, C J., Shafiur
Rahman, Saad Saood Jan, Abdul Qadeer
Chaudhry and Sajjad Ali Shah, JJ

In re: SUO MOTU CONSTITUTIONAL

PETITION
Constitutional Petition No. 9 of 1991(Suo
Motu), heard on 6th February, 1994.

Constitution of Pakistan (1973)---

301
----Arts. 14 & 184(3)---Universal Declaration
of Human Rights in Islam, Art7---Special
Courts for Speedy Trials Act (IX of 1992), S.
10---Dignity of man---Public hanging as
provided by S. 10, Special Courts for Speedy
Trials Act, 1992 of even the worst criminal,
appears to violate the dignity of man and
constitutes therefore, a violation of the
fundamental right contained in Art. 14 of
the Constitution.

The cognizance of the matter was taken up

by Supreme Court suo motu as a question
of public importance namely the validity of
public hanging and execution of
punishments in public arose therein.

302
According to Article 14(1) of the
Constitution of Pakistan (1973) the dignity
and self-respect of every man has become
inviolable and this guarantee is not subject
to law but is an unqualified guarantee.
Accordingly, in all circumstances, the dignity
of every man is inviolable and executing in
public, even the worst criminal, appears to
violate the dignity of man and constitutes,
therefore, a violation of the fundamental
right contained in Article 14.

Again in the "Universal Declaration of

Human Plights in Islam" a document
prepared by a number of leading Muslim

303
Scholars and published in London on April
the 12th,1980, it is stated in the Article 7
thereof as follows:--
"7. The right of protection from torture:
--(a) It is not permitted to torture the
criminal, still less the suspect: "God will
inflict punishment on those who have
inflicted torture in this world."
When the matter came up for final
determination the Deputy Attorney-General
made a statement before Supreme Court
that the Government had decided, as a
matter of policy, that it will not carry out
execution of criminals' sentence to death in
public despite the powers vesting in it to do
so under section 10 of the Special Courts for

304
Speedy Trials Act, 1992. In other words the
public hangings will not be resorted to.
In view of this statement no further action
by Supreme Court appeared to be
necessary. The case stood-disposed of in
the above terms.

Mumtaz Ali Mirza, Deputy Attorney-General

for Appellant.

Date of hearing: 6th February, 1994.

ORDER

305
NASIM HASAN SHAH, C.J.--The cognizance
of this matter was taken up by this Court
suo motu as a question of public
importance namely the validity of public
hangings and execution of punishments in
public arose herein.

2. This matter was heard by this Court on

several occasions and we have heard the
learned Attorney General for Pakistan the
Advocate General of all the Provinces, Syed
Afzal Haider and Qazi Muhammad Jamil
eminent members of the Bars in connection
with this matter. However, decision was
postponed as the learned Attorney-General
requested the Court to await the opinion of
the Council of Islamic Ideology which had
306
been moved by Government to tender its
opinion in the matter.

3. Under section 10 of the Special Courts for

Speedy Trials Act, 1992, it is provided:

"10. Place of execution of sentence.---The

Government may specify the place of
execution of any sentence passed under
this Act, having regard to the deterrent
effect which such execution is likely to
have."

4. Pursuant to the powers conferred by this

provision of law, the Government can order
307
a convict sentenced to death to be
executed in public. Now Article 14 of the
Constitution, which is contained in the
Chapter relating to fundamental rights, by
clause (1) thereof, provides as follows:-

"14. (1) The dignity of man and, subject to

law, the privacy of home, shall be
inviolable."

According to this provision the dignity and

self-respect of every man has become
inviolable and this guarantee is not subject
to law but is an unqualified guarantee.
Accordingly, in all circumstances; the dignity
of every man is inviolable and executing in
308
public, even the worst criminal, appears to
violate the dignity of man and constitutes,
therefore, a violation of the fundamental
right contained in Article 14.

Again in the `Universal Declaration of

Human Rights in Islam' a document
prepared by a number of leading Muslim
scholars and published in London on April
the 12th, 1980, it is stated in the Article 7
thereof as follows:-

"7. The right of protection froze torture.--(a)

It is not permitted to torture the criminal,
still less the suspect: "God will inflict

309
punishment on those who have inflicted
torture in this world".

This case, therefore, appeared, to be fit

one- for exercise of suo motu jurisdiction by
this Court under Article 184(3) of the
Constitution.

6. Today when the matter came up for final

determination the learned Deputy
Attorney-General Mr. Mumtaz Ali Mirza
made a statement before us that the
Government had decided, as a matter of
policy, that it will not carry out executions
of criminals sentenced to death in public
despite the powers vesting in it to do so a/s
310
10 of the Special Courts for Speedy Trials
Act, 1992. In other words the public
hangings will not be resorted to.

7. In view of this statement no further

action by this Court now appears to be
necessary. This case stands disposed of in
the above term's. Order accordingly.

M.BA./C-14/S
Order accordingly.

311
 P L D 2011 Supreme Court 997

Present: Iftikhar Muhammad Chaudhry,

C. J., Anwar Zaheer Jamali, Sarmad
Jalal Osmany, Amir Hani Muslim and
Ghulam Rabbani, JJ

WATAN PARTY and another---

Petitioners

Versus

FEDERATION OF PAKISTAN and

others---Respondents

Suo Motu Case No.16 of 2011 and

312
Constitution Petition No.61 of 2011. [Suo
Motu Action regarding law and order
situation in Karachi]

(a) Islam---

----Teachings---Islam is a religion of peace

and tolerance and stands for safety, security
and sanctity of human life---Islam abhors
unlawful killing of innocent people and
strictly prohibits it.

Surah-Ai-Maidah Verse 32; Surah Al-

Baqarah Verse 84; Surah An-Nisa Verse 93;
The Farewell Sermon (Khutbatul-Wada);
Sahih Bokhari, Vol VIII, p.434, Number 667
and Sahih Bukhari, Vol IX, P.2, Numbr 3
ref.

313
(b) Constitution of Pakistan---

----Preamble, Arts. 2-A & 9---Universal

Declaration of Human Rights, Arts. 3 & 17--
-Constitution of Pakistan, in its very
Preamble, postulates that the principles of
democracy, freedom, equality, tolerance and
social justice, as enunciated by Islam, shall
be fully observed and the fundamental
rights, including equality of status, of
opportunity and before the law, social,
economic and political justice, and freedom
of thought, expression, belief, faith, worship
and association, subject to law and public
morality; shall be fully guaranteed---Such
principles have been made a substantive part
of the Constitution under Article 2-A---State
was duly bound to protect and. safeguard all
these Fundamental Rights including the
314
right to life and liberty; as envisaged by
Article 9 of the Constitution---- "Right to
life and liberty "---Interpretation---State is
duty bound to protect the life and property
of its citizens in accordance with law against
all the atrocities, target killings, homicide
etc.---Primary tasks of any legal government
are defined as the provision of security,
welfare and growth and constitutional order-
--Clear cut interconnection exists between
law and order and economic development---
Principles.

Constitution of Pakistan, in its very

Preamble, postulates that the principles of
democracy, freedom, equality, tolerance and
social justice, as enunciated by Islam, shall
be fully observed and the fundamental
rights, including equality of status, of
opportunity and before the law, social,
315
economic and political justice, and freedom
of thought, expression, belief, faith, worship
and association, subject to law and public
morality; shall be fully guaranteed. Such
principles have been made a substantive part
of the Constitution under Article 2-A. State
was duty bound to protect and safeguard all
these Fundamental Rights including the
right to life and liberty as envisaged by
Article 9 of the Constitution.'

Article 9 of the Constitution provides that no

person shall be deprived of life or liberty
save in accordance with law. Word "life" is
very significant as it covers all facts of
human existence. Word "life" has not been
defined in the Constitution but it does not
mean nor can it be restricted only to the
vegetative or animal life or mere existence
from conception to death. "Life" includes all
316
such amenities and facilities which a person
born in a free country, is entitled to enjoy
with dignity, legally and constitutionally.

Article 9 of the Constitution includes all

such amenities and facilities which a person
born in a free country is entitled to enjoy
with dignity, legally and constitutionally.
The word `life' in the Constitution has not
been used in a limited manner; a wide
meaning should be given to enable a man
not only to sustain life but-to enjoy it. The
State is duty bound to protect the life and
property of its citizens in accordance with
law against all the atrocities, target killings,
homicide, etc. The basic human rights of
life, liberty and enjoyment of one's property
have been recognized nationally as well as
internationally. Article 3 of the Universal
Declaration of Human Rights provides that
317
`everyone has the right to life, liberty and
security of person', no one shall be subjected
to torture or to cruel., inhuman or degrading
treatment or punishment; everyone has the
right to recognition everywhere as a person
before the law; and all are equal -before the
law and are entitled without any
discrimination to equal protection of the
law. Article 17 lays down that `every one
has the right to own property alone as well
as in association with others'. No society can
make any progress in a state of chaos and
disorder. It is manifest to hypothesize that
the law and order condition prevailing in a
country has a direct and significant bearing
on the pace and pattern of economic
development of that country. The existence
of basic socio-economic framework of the
country and the continuation of economic
growth without any hindrance or
interruption depends upon subsistence of
318
better law and order situation. In case of
break-down of peace on account of any
factors negative effect is exerted on the
economic growth. Better law and order as a
determinant of economic development was
spelled out in explicit terms in the theories
of growth advanced by economists who
have mentioned that the structure of the
prevalent value system of a community can
reasonably be considered as an important
condition of law and order, because the
value system defines the basic norms and
ethos of human conduct. For example, if the
value system of a society is predominated by
sectarian or ethnic dispensations, then such a
society would be continuously ridden by law
and order problems, thus putting frequent
twists and turns to the process of economic
growth. Theme of stage, `propensities' and
their linkages' have been extended to the
role of political factors, institutions and the
319
law and order framework in determining the
pattern of economic growth. The primary
tasks of any legal government are defined as
the provision of security, welfare and
growth, and constitutional order. Thus there
is a clear cut interconnection between law
and order and economic development.

Shehla Zia's case PLD 1994 SC 693; Arshad

Mehmood v. Government of Punjab PLD
2005 SC 193; Theories of Socio-economic
Growth, Problems in the Study of Economic
Growth, 1949, JJ. Spangler and W.W.
Rostow in Politics and the Stages of Growth,
1971 ref.

(c) Constitution of Pakistan---

320
----Arts. 9, 14 & 25---Every citizen must be
treated equally, dignity of human life should
be maintained and liberty of life and honour
must be guaranteed as envisaged in the Arts.
9, 14 and 25 of the Constitution.

Commissioner of Income Tax v. Eli Lilly

Pakistan 2009 SCMR 1279 ref.

(d) Constitution of Pakistan---

----Art. 18--Freedom of trade, business or

profession---Article 18 of the Constitution
assures the citizens the right to enter upon
any "lawful profession or occupation" and
"to conduct any lawful trade or business"-
"Lawful"- qualifies the right of the citizen in
the relevant field, which clearly envisages

321
that State can by law ban a profession,
occupation, trade or business by declaring
the same to be unlawful which in common
parlance means anything forbidden by law--
Government has the authority to regulate a
lawful business or trade--Reasonable
restriction, however, does not mean
prohibition or prevention completely---
Principles.

Government of Pakistan v. Zamir Ahmad

PLD 1975 SC 667 and Arshad Mehmood v.
Government of Punjab PLD 2005 SC 193
ref.

(e) Constitution of Pakistan---

----Art. 24(1)---Protection of property

322
rights---No person shall be deprived of his
property save in accordance with law.

Arshad Mehmood v. Government of Punjab

PLD 2005 SC 193 ref.

(f) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience

to Constitution and law---Any democratic
set up consisting of citizens and
functionaries in the country under the
Constitution is bound to show its loyalty to
the State, for to be loyal and faithful to the
State is the basic duty of every citizen under
Article 5 of the Constitution---Article 5(2)
of the Constitution has mandated that
obedience to the Constitution and law is the

323
inviolable obligation of every citizen
wherever he may be and for every other
person for the time being within Pakistan---
Chosen representatives, who have acquired
authority on behalf of their electors as
members of the National Assembly, Senate
or Provincial Assemblies as per mandate of
their oath, which they take before entering
upon office, are bound to bear true faith and
allegiance to Pakistan---Oath of the office of
members of the National Assembly and
Senate as set out in the Third Schedule of
the Constitution provides that. the members
will perform their functions honestly, to the
best of their ability, faithfully and in
accordance with the Constitution and law;
that they' will act in the interest of the
sovereignty, integrity, solidarity, well-being
and prosperity of Pakistan and they will
preserve, protect and defend the
Constitution---While holding a
324
constitutional office, the chosen
representatives of the people have to remain
true to their oath and to observe
constitutional limits in all circumstances.

Shahid Orakzai v. Pakistan through

Secretary Law PLD 2011 SC 365 ref.

(g) Constitution of Pakistan---

----Arts. 101 & 105-Governor to act on

advice---Governor of a Province is to be
appointed as per Article 101 by the
President on the advice of the -Prime
Minister---Governor who is holder of a
constitutional post and acts as the agent of
the President, has to keep the Federation
informed of the affairs of the Province,

325
although as per Article 105, the Governor
shall act on the advice of the Cabinet or the
Chief Minister.

(h) Constitution of Pakistan---

----Arts. 107 & 112---Dissolution of

Provincial Assembly---Scope---provincial
Assembly cannot be dissolved by the
Governor except under circumstances
warranting such dissolution as per Art.112
of the Constitution---Principles.

Muhammad Anwar Durrani v. Province of

Balochistan PLD 1989 Quetta 25 ref.

(i) Constitution of Pakistan---

326
----Art. 232---Proclamation of Emergency
by the President on account of war, internal
disturbance, etc.---Scope.

(j) Constitution of Pakistan---

----Art. 17---Political party cannot be

formed or operate in a manner prejudicial to
the sovereignty or integrity of Pakistan.

(k) Administration of justice---

----Courts can only act upon evidence and

material presented before them, which is to
be collected by the executive---Courts
cannot be blamed if the executive/police fail
327
in their duty---Evidence collected by
executive/police must be evaluated
according to the laws and rules prescribed
by the legislature---Government has to
ensure that cogent evidence to support
prosecution is collected and presented in the
court---Legislature is to provide processes
for the protection of witnesses, Policemen
and Judges and it is for the
executive/government to fully implement
such reforms---Intelligence sharing and
action on intelligence that is uncorrupted by
political or extraneous influence must also
be ensured by the executive---Supreme
Court observed that it was expected that a
new culture of independent, depoliticized,
and non-partisan prosecution comprising
efficient, capable prosecutors will be
established by the Government to aid and
assist the courts--Government must also
depoliticize the administration/prosecution
328
which will be for its own good and for that
of the nation---Courts will keep a watchful
eye and strike down all illegal pressures and
orders that are brought to their notice.

(l) Adversarial proceedings---

----Definition and concept---"Adversarial

proceedings" are defined as proceedings
relating to, or characteristic of an adversary or
adversary procedures.

Concise Oxford English Dictionary, 11th

Edn.; Muhammad Manawar v. Deputy
Settlement Commissioner 2001 YLR 2350;
Peoples' Union for Democratic Rights v,
Union of India [AIR 1982 SC 1473] =
[(1982)3 SCC 235], Bandhua Mukti Morcha

329
v. Union of India [AIR 1984 SC 802],
Peoples' Union for Liberties v. Union of
India [AIR 1996 Cal 89] and State of
Uttaranchal v. Balwant Singh Chaufal
[(2010) 3 SCC 402. ref.

(m) Adversarial process---

----Definition---"Adversarial process" is
defined as a process in which each party to
dispute puts forward its case to the other and
before a neutral Judge, soliciting to prove
the fairness of their cases.

Advanced Law Lexicon; American Heritage

Dictionary of the English Language, 4th
Edn. and Collins English Dictionary-
Complee and Unabridged ref.

330
(n) Adversarial system---

----Definition and Scope.

The adversarial system (or adversary

system) is a legal system where two
advocates represent their parties' positions
before an impartial person or group of
people, usually a jury or judge, who attempt
to determine the truth of the case, whereas,
the inquisitoriar system has a judge (or a
group of judges who work together) whose
task is to investigate the case.

The adversarial system is a two-sided

structure under which criminal trial courts
operate that pits the prosecution against the
331
defence. Justice is done when the most
effective and rightful adversary is able to
convince the judge or jury that his or her
perspective on the case is the correct one.

(o) Words and phrases----

----"Inquisitorial"-Definition "---Definition
and scope.

Concise Oxford English Dictionary, 11th

Edn.; Advanced Law Lxicon 3rd Edn. 2005;
Webster's New World College Dictionary
Copyright 2010 by Wiley Publishing, Inc.,
Cleveland, Ohio and Collins World English
Dictionary ref.

332
(p) Inquisitorial system---

----Scope and application---Distinction

between Inquisitorial and Adversarial
systems.

An inquisitorial system is a legal system

where the court or a part of the court is
actively involved in investigating the facts
of the case, as opposed to an adversarial
system where the role of the court is
primarily that of an impartial referee
between the prosecution and the defence.
Inquisitorial systems are used in some
countries with civil legal systems as
opposed to common law systems. Also
countries using common law, including the
United States, may use an inquisitorial
system for summary hearings in the case of
333
misdemeanors such as minor traffic
violations. In fact, the distinction between an
adversarial and inquisitorial system is
theoretically unrelated to the distinction
between a civil legal and common law
system. Some legal scholars consider the
term "inquisitorial" misleading, and prefer
the word "non-adversarial".

The inquisitorial system applies to questions

of criminal procedure as opposed to
questions of substantive law; that is, it
determines how criminal enquiries and trials
are conducted, not the kind of crimes for
which one can be prosecuted, nor the
sentences that they carry. It is most readily
used in some civil legal systems. However,
some jurists do not recognize this dichotomy
and. see procedure and substantive legal
relationships as being interconnected and
334
part of a theory of justice as applied
differently in various legal cultures.

In some jurisdictions, the trial judge may

participate in the fact-finding inquiry by
questioning witnesses even in adversarial
proceedings. The rules of admissibility of
evidence may also allow the judge to act
more like an inquisitor than an arbiter of
justice.

The proceedings, which are initiated as

public interest litigation in civil or criminal
matters cannot be treated as adversarial
because of the definition of nature of the
proceedings where without contest between
the parties a final finding has to be recorded.

335
(q) Constitution of Pakistan---

---Arts. 184(3) & 199---Public interest

litigation---Proceedings---Nature---
Proceedings under public interest litigation
is inquisitorial in nature where the court may
even delve into fact finding so as to promote
public interest-Proceedings which are
initiated as public interest litigation in civil
or criminal matters cannot be treated as
"adversial" because of the definition of
nature of the proceedings where without
contest between the parties a final finding
has to be recorded.

Tabacco Board v. Tahir Raza 2007 SCMR

97; Ch. Muneer Ahmad v. Malik Nawab
Sher PLD 2010 Lah. 625 and Philips
Electrical Industries of Pakistan Ltd. v.
336
Pakistan 2000 YLR 2724 ref.

(r) Constitution of Pakistan---

----Art. 148---Law and order situation and

enforcement of fundamental rights of
citizens---Held, under the Constitution, it is
the obligation of the Federation to protect
every Province against internal disturbances
as well as external aggression and to ensure
that the Government of every Province is
carried on in accordance with the
provisions of the Constitution.

(s) Constitution of Pakistan---

----Arts. 184(3) & 199---Enforcement of

337
fundamental rights---Supreme Court, in
exercise of its jurisdiction under Art.184(3)
of the Constitution, which is in the nature
of "inquisitorial proceedings", has the same
powers as are available to the High Court
under Art.199 of the Constitution.

Muhammad Nawaz Sharif v. President of

Pakistan PLD 1993 SC 473; Syed Wasey
Zafar v. Government of Pakistan PLD 1994
SC 621; Bank of Punjab v. Haris' Steel
Industries (Pvt.) Ltd. PLD 2010 SC 1109
and Federation of Pakistan v. Munir Hussain
Bhatti PLD 2011 SC 752 ref.

(t) Constitution of Pakistan---

----Part II, Chap.1 [Arts. 9 to 28]---

338
Ensuring good governance, maintaining
law and order situation and providing
security to the persons is a primary duty of
the Government.

Mohtsham, Saeed M., Vision and Visionary

Leadership-An Islamic Perspective;
Federation of Pakistan v. Haji Muhammad
Saifullah Khan PLD 1989 SC 166; Khawaja
Ahmad Tariq Rahim v. The Federation of
Pakistan PLD 1992 SC 646 and Benazir
Bhutto v. Federation of Pakistan PLD 1968
SC 416 ref.

(u) Penal Code (XLV of 1860)---

----Ss. 386, 387 & 388---Anti-Terrorism

Act (XXVII of 1997), S.6(1)(k)---Offences

339
of extortion of money, which can also be
considered as bhatta, is covered by Ss.386,
387 & 388 of P.P.C. and falls within
definition of "terrorism" given in S.6(1)(k),
Anti-Terrorism Act, 1997---Such crime can
be controlled by applying said laws strictly.

Bracy v. Gramley, Warden [502 US 899

(1997)] ref.

(v) Constitution of Pakistan---

----Preamble---Different institutions, as per

scheme of the Constitution are required to
fulfil their commitment because
Constitution is based on the principle of
trichotomy of powers i.e. Legislature,
which is responsible to legislate the laws,

340
Executive/Government headed by the
Prime Minister in the Federation and the
Chief Ministers in the Provinces to fulfil
their duties, and the Judiciary, which has to
interpret the Constitution and the law---
Violation of constitutional provisions by
any of the organs/functionaries of the State
is not permitted by law.

Sindh High Court Bar Association v.

Federation of Pakistan PLD 2009 SC 876
ref.

(w) Constitution of Pakistan---

----Part II, Chap. 1 [Arts.9 to 28]---

Enforcement of fundamental rights/civil
rights---Duty of executive---If the

341
executive fails to do so, they have to face
consequences envisaged by the
Constitution---Executive functionaries who
have also taken oath in the Province and
Federation to protect and preserve the
Constitution cannot be allowed to defeat
any provision of the Constitution, whatever
the circumstances may be.

(x) Constitution of Pakistan---

----Art. 5---Loyalty to State and obedience

to Constitution and law- Article 5 of the
Constitution commands that loyalty to State
is the basic duty of every citizen and
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--
342
-Executive/public functionaries are bound
to enforce the Constitution while protecting
the Fundamental Rights of the citizens
without, any fear or favour or compromise
.for subjective purpose---Executive
Authorities cannot be allowed to be
negligent to an extent where ultimately the
sovereignty and integrity of the country is
jeopardized.

Abdul Majeed Zafar v. Governor of Punjab

2007 SCMR 330 and Ch. Zahur Ilahi v.
Zulfiqar Ali Bhutto PLD 1975 SC 383 ref.

(y) Constitution of Pakistan---

----Arts. 5(2) & 184(3)---Public interest

matter---Incidents of violence, commission

343
of crimes, bloodshed and looting occurring
in the society---Without claiming any
immunity, in the public interest
proceedings, the Prime Minister as well as
the Chief Minister (of the Province), both
are bound to follow the Constitution under
Art.5(2) of the Constitution by ensuring
security and safety of persons and property
of the citizens---Principles.

(z) Constitution of Pakistan---

----Art. 5(2)---Loyalty to State and

obedience to Constitution and law---
Whosoever is ruling the country under the
Constitution, he being the Leader of the
House, is bound to know the constitutional
commitments and provisions of law because
of the fact that he or they have taken oath(s)
344
to preserve, protect and defend the
Constitution, including Fundamental Rights
as well as to show obedience to the
Constitution and law under Article 5(2)
notwithstanding their holding of any high
office.

Ch. Zahoor Ilahi v. Zufiqar Ali Bhutto PLD

1975 SC 383 ref.

(aa) Constitution of Pakistan---

----Preamble, Part II, Chap.] [Arts.9 to 28]---

Under the Constitution, it is not possible
now for the Armed Forces to dismiss the
Government by adopting extra-
constitutional measures, but at the same time
the chosen representatives also owe a duty

345
to the Constitution and if they feel that on
account of any political expediency they can
allow the continuance of the position of law
and order in the Province, it will be at their
own risk and cost, otherwise under the
Constitution they are bound to secure lives
and properties, ensuring the proprietary
rights, freedom of movement, etc., and
failing which constitutionally such
government is likely to lose their right of
ruling.

Sindh High Court Bar Association v.

Federation of Pakistan PLD 2009 SC 876
ref.

(bb) Constitution of Pakistan---

346
----Art. 148(3)---Obligation of Provinces
and Federation---Federal Government, under
Art.148(3) of the Constitution is bound to
assist the Provincial Government during
period of disturbances.

(cc) Press statement---

----Such statement having not been

controverted by anyone, will be presumed to
have been accepted.

Mubashir Hussain v. Federation of Pakistan

PLD 2010 SC 265 ref.

(dd) Adversarial proceedings---

347
----Criminal case in an adversarial
proceeding is likely to be decided on merits
after recording of evidence.

Federation of Pakistan v. Gul Hassan Khan

PLD 1989 SC 633 ref.

(ee) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt

with in accordance with law---To enjoy the
protection of law and to be treated in
accordance with law is the inalienable right
of every citizen, wherever he may be, and of
every other person for the time being within
Pakistan and in particular no action
detrimental to the life, liberty, body,
reputation or property of any person would

348
be taken except in accordance with law---
Fundamental Rights of the citizens have to
be enforced by the court in the discharge of
judicial functions.

Sardar Farooq Ahmad Khan Leghari v.

Federation of Pakistan PLD 1999 SC 57 and
Syed Jalal Mehmood Shah v. Federation of
Pakistan PLD 1999 SC 395 ref.

(ff) Constitution of Pakistan---

----Art. 17(2)---Freedom of association--

Held, under Art.17(2) of the Constitution it
is the duty of the Federal Government to
declare that a political party has been
formed or is operating in a manner
prejudicial to the sovereignty or integrity of

349
Pakistan and within fifteen days of such
declaration, refer the matter to the Supreme
Court whose decision on such reference
shall be final.

(gg) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces

and Federation---Federal Government is
duty bound under Article 148(3) of the
Constitution to protect every Province
against internal disturbances and to ensure
that the Government of every Province is
carried on in accordance with the provisions
of the Constitution.

(hh) Constitution of Pakistan---

350
----Art. 148(3)---Obligation of Provinces
and Federation---Bloodshed, arson,
kidnapping/abduction for ransom,
widespread violence, illegal collection of
money (bhatta) from traders, etc., were
being committed within the knowledge of
the State through Provincial
Government/Executive but it remained a
silent spectator and prima-facie failed to
take appropriate action, may be for some
political reasons---Constitution does not
allow the Executive to compromise its
position at the cost of innocent citizens who
lost their lives, property, liberty and dignity
because of the expediency of the Provincial
or Federal Government.

(ii) Constitution of Pakistan---

351
---Art. 148(3)---Obligation of Provinces and
Federation---Pakistan having written
Constitution, which is implemented through
the Federation and the Provincial
Governments by strictly adhering to its
provisions without any political
considerations, the situation of law and
order can be managed.

(jj) Constitution of Pakistan---

----Art. 17---Political Parties Order [18 of

2002], Art.15---Political parties---If the
Government succeeds in establishing that
any political party is operating in a manner
prejudicial to the sovereignty or integrity of
Pakistan, provisions of Art. 17 of the
Constitution read with S.15, Political Parties
Order, 2002 can be invoked.
352
(kk) Islamic jurisprudence---

----Crimes---If anyone killed a person not in

retaliation of murder, or to spread mischief
in the land, it would be as if he killed all
mankind, and if anyone saved a life, it
would be as if he saved all mankind, which
is to be accepted by all the Muslims---Life
of a human being is very precious, therefore,
Allah has condemned the killing of even a
single human being and has equated it with
the killing of the whole humanity, and vice
versa, if a man is saved, the whole humanity
will be deemed to have been saved.

Sura Almaida Verses 22 and 23 ref.

353
(ii) Words and phrases---

----"Executive"-Definition.

American Heritage Dictionary of the

English Language, 4th Edn.; Collins English
Dictionary; Cultural Dictionary and Oxford
Guide to the US Government ref.

(mm) Words and phrases---

----"State"-Definition.

Advance Law Lexicon; Corpus Juris

Secondum and Collins English Dictionary
ref.

354
(nn) State---

----Concept.

(oo) Government---

----Concept.

As against the term "State", a government is

an institution whose existence precedes that
of the State. A government is a person or
group of persons who rule or administer (or
govern) a political community or a State.
For government to come into being there
must be an existence of public on the
territory of a State. Ruling within a
355
household is not government. Government
exists when people accept (willingly or not)
the authority of some person or persons to
address matters of public concern; the
administration of justice, and defence
against external enemies being typical
examples of such matters.

(pp) Constitution of Pakistan---

----Arts. 90, 129 & 7---Executive authority

of the Federation and Provinces and
institution of State---Scope---Institution of
State is distinguished from executive
authorities as defined in Art.7 of the
Constitution.

Article 90 of the Constitution defines

356
"executive authority" as "subject to the
Constitution the executive authority of the
Federation shall be exercised in the name of
the President by the Federal Government
which consists of Prime Minister and
Federal Ministers, who shall act through the
Prime Minister who shall be the chief
executive of the Federation." Whereas in
relation to the Provincial Government,
Article 129 with the substitution of
Governor with the President defines the
Executive Authority of the Province
consisting of the Chief Minister and
Provincial Ministers, who shall act through
the Chief Minister. Both these executive
authorities represent the Federal and
Provincial Governments whereas the
institution of State is distinguished from
executive authorities as defined in Article 7
of the Constitution.

357
(qq) Constitution of Pakistan---

----Art. 184(3) & Part II, Chap.] [Arts.9 to

28]---Jurisdiction of Supreme Court under
Art.184(3) of the Constitution---Scope---
Under Article 184(3), Supreme Court
exercises same powers, which are available
to a High Court under Article 199(1)(c) of
the Constitution---Supreme Court can make
an order giving such direction to any person
or authority including any government
exercising power or performing any function
find, in relation to, any territory within its
jurisdiction as may be appropriate for the
enforcement of Fundamental Rights
conferred by Chap. 1 of Part II of the
Constitution.

Muhammad Nawaz Sharif v. President of

358
Pakistan PLD 1993 SC 473; Syed Wasey
Zafar v. Government of Pakistan PLD 1994
SC 621; Bank of Punjab v. Haris Steel
Industries (Pvt.) Ltd. PLD 2010 SC 1109;
Federation of Pakistan v. Munir Hussain
Bhatti PLD 2011 SC 752; Zulfiqar Mehdi v.
Pakistan International Airlines Corporation
1998 SCMR 793; Benazir Bhutto's case
PLD 1988 SC 416; Asma Jilani v.
Government of the Punjab PLD 1972 SC
139 Fauji Foundation v. Shamimur Rehman
PLD 1983 SC 457 and Jibendra Kishore v.
Province of East Pakistan PLD 1957 SC 9
ref.

(rr) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding

law and order situation in Karachi and
359
petitions under Art.184(3) of the
Constitution---Nature of proceedings---Such
proceedings are not against the State but to
consider whether the Provincial Government
of Sindh had failed to enforce the
Fundamental Rights of the citizens.

(ss) State---

----Successful State---Scope---Successful
State maintains a monopoly on the
legitimate use of physical force within its
borders.

Max Weber ref.

(tt) Constitution of Pakistan---

360
----Arts. 184(3) & 199---Jurisdiction of
Supreme Court under Art.184(3) of the
Constitution---Scope---Court is empowered
under Article 184(3) to consider any
question of public importance with reference
to enforcement of any of Fundamental
Rights, conferred by Chapter 1, Part II and
can make an order of the nature mentioned
in Article. 199---Supreme Court under
Article 184(3) is not dependent only at the
instance of the "aggrieved party" in the
context of adversarial proceedings and while
dealing with a case under Article 184(3) of
the Constitution, court is neither bound by
the procedural trappings of Article 199 nor
by the limitations mentioned in the said
Article for exercise of power by the High
Court in any case---Court is empowered to
examine as to whether Province has failed to
enforce Fundamental Rights.
361
Pakistan Muslim League (Nawaz) v.
Federation of Pakistan PLD 2007 SC 642
ref.

(uu) Constitution of Pakistan---

----Art. 245---Armed Forces also fall within

the definition of the executive.

Liaqat Hussain v. Federation of Pakistan

PLD 1999 SC 504 ref.

(vv) Pakistan Armed Forces (Acting in

Aid of Civil Powers) Ordinance (XIII of
1998)---

362
----S. 6 & Sched.---Constitution of Pakistan
Art.184(3)--- Pakistan Armed Forces
(Acting in Aid of Civil Powers) Ordinance,
1998 as in so far as it allowed the
establishment of the Military Courts for
control of the civilians, charged with the
offences mentioned in section 6 and the
Schedule to the said Ordinance is
unconstitutional, without lawful authority
and of no legal effect---Supreme Court has
jurisdiction to examine an instrument on the
basis of which power to try the accused is
conferred upon the executive or the Armed
Forces.

(ww) Constitution of Pakistan---

----Art. 148(3)---Obligation of Provinces

363
and Federation---Federal Government has to
protect the Provinces against internal
disturbances--Such protection, if required by
a Province in terms of Article 148(3) of the
Constitution in view of the given facts and
circumstances and the scenario presupposes
prompt protection and failure to do so makes
the Federal Government responsible.

Khawaja Ahmad Tariq Rahim v. The

Federation of Pakistan PLD 1992 SC 646
and Benazir Bhutto v. Federation of Pakistan
PLD 1988 SC 416 ref.

(xx) Administration of justice---

----All criminals, howsoever influential,

have to be dealt with across the board

364
without any discrimination or compromising
the position of the law on the subject.

(yy) Constitution of Pakistan---

----Art. 148(3)---Obligation of Province and

Federation---Provincial Government as well
as the Federal Government are duty bound
to protect and preserve the Constitution,
which confers such rights upon individuals--
-When violation of the Fundamental Rights
is admitted, ultimately blame lies with the
executive authorities, both Provincial and
the Federal, for non-implementation of their
rights.

(zz) Constitution of Pakistan---

365
----Art. 232---Proclamation of Emergency
on account of war, internal disturbances---
Held, except adherence to the constitutional
provisions in any situation prevailing in the
country, no extra-constitutional steps have to
be followed.

Sardar Farooq Ahmad Khan Leghari v.

Federation of Pakistan PLD 1999 SC 57 ref.

(aaa) Constitution of Pakistan---

----Art. 184(3)---Suo motu action regarding

law and order situation in Karachi and
petitions under Art.184(3) of the
Constitution---Supreme Court, from the
material produced before the court and the
information conveyed during hearing of the

366
case by Inter-Services Intelligence of
Pakistan followed by intensified arguments
advanced by the counsel appearing for the
Provincial and Federal Governments,
Attorney General, Advocate General,
counsel for the Province of Sindh and
counsel for the interveners, the Inspector
General of Police, the DG Rangers, the
Presidents of the Sindh High Court Bar
Association and the Karachi Bar
Association as well as all others observed
and gave directions in that regard.

Supreme Court observed and directed:

that violence in Karachi during the (current)

year and in the past is not ethnic alone but it
is also a turf war between different groups
having economic, socio-politico interest to
367
strengthen their position/aggrandizement,
based on the phenomenon of tit for tat with
political, moral and financial support or
endorsement of the political parties, who are
claiming their representation on behalf of
public of Karachi including components and
non-components of Provincial Government/
Executive;

that recent violence in Karachi represents

unimaginable brutalities, bloodshed,
kidnapping and throwing away dead bodies
and torsos in bags; as illustration, indicating
toll of 306 lives in one month; detection of
torture cells video of which has been
produced; receiving bhatta to strengthen the
ranks of one group against the other;
grabbing land; drug mafia etc., destroying
moveable and immovable properties of the
citizens, establishes that the Fundamental
368
Rights of the citizens enshrined in Articles
9, 14, 15, 18 and 24 of the Constitution have
not been protected/enforced by the
Provincial Government/Executive authority
and this failure has made the lives and
properties of the citizens insecure, inasmuch
as Federal Government/ Executive has also
not protected Province of Sindh against
internal disturbance, thus the government of
Province of Sindh, on this account, too,
failed to carry out functions in accordance
with the provisions of the Constitution
[Article 148(3)];

that both the Provincial and Federal

Governments/Executives have to find out
solutions of the present scenario as per
provisions of the Constitution;

369
that to come out of instant grave situation of
law and order in Karachi, police force being
principal law enforcing agency has to be de-
politicized and strengthened so that they
could, with full commitment, dedication,
zeal and zest, perform its bounden duty, and
unless there is a de-politicized police, the
situation of law and order is likely to
become more aggravated, no sooner the
assistance of Rangers is withdrawn;

that any further failure to protect the lives

and property of the citizens is likely to cause
unprecedented disaster, therefore, all efforts
should be made to avoid the same in the
interest of the nation and country, which is
supreme as per the mandate of the
Constitution and the law;

370
that in respect of banning any political party
including MQM, against whom all the
interveners mostly had voiced complaints is
not within domain of the Supreme Court at
this stage as in terms of Article 17(2) of the
Constitution every citizen, not being in the
service of Pakistan, shall have the right to
form or be a member of a political party,
subject to any reasonable restrictions
imposed by law in the interest of the
sovereignty or integrity of Pakistan and it is
the responsibility of the Federal Government
to act under Article 17 for action against any
party violating this Article. The Supreme
Court will only review such issue at any
other appropriate stage or proceeding if then
necessary to determine whether the actions
of any party are directly or indirectly
prejudicial to the sovereignty or integrity of
Pakistan within the meaning of the Article.
The Supreme Court will remain, in
371
appropriate proceedings, the ultimate arbiter
of this question but will not allow any
government to avoid its duty under the law
and the Constitution;

that as per material brought before the court,

there are criminals who have succeeded in
making their ways in political parties
notwithstanding whether they are
components or non-components of
government, and are getting political and
financial support allegedly from such
parties, therefore, the political parties should
denounce their affiliation with them in the
interest of the country and democratic set up
and they should not allow them to use their
names as militant outfits of the political
parties. Failure to do so may entail
consequences of a penal nature against the
party or person responsible, whether in
372
office or not;

that to avoid political polarization and to

break the cycle of ethnic strife and turf war,
boundaries of administrative units like
police stations, revenue estates, etc., ought
to be altered so that the members of
different communities may live together in
peace and harmony, instead of allowing
various groups to claim that particular areas
belong to them and declaring certain areas
as no go areas under their fearful influence.
Subsequent thereto, on similar
considerations, in view of relevant laws,
delimitation of different constituencies has
also to be undertaken with the same object
and purpose, particularly to make Karachi,
which is the hub of economic and
commercial activities and also the face of
Pakistan, a peaceful city in the near future.
373
The Election Commission of Pakistan may
also initiate the process on its own in this
behalf;

that equal chances should be provided to

different communities of Karachi to
participate in economic and commercial
activities instead of confining the same to
different political groups on the basis of
parochial, racial, tribal, sectarian, partisan
and provincial prejudices;

that Karachi is full of arms and ammunition

of prohibited and non-prohibited bores
including licensed and illicit, therefore,
Karachi has to be cleansed from all kinds of
weapons by adhering to the laws available
on the subject, and if need be, by
promulgating new legislation. All licensed
374
arms genuinely required for security
concerns and personal safety may be
retained but these must also be registered
with NADRA. All other licenses, where
such need cannot be shown, or where
multiple licences have been issued to the
same individual (as distinct from security
firms) if not justified, or which are used for
unnecessary display at ceremonies or
elsewhere for aerial firing should be
cancelled after summary and expeditious
proceedings in accordance with law;

that there is a need for a fresh

comprehensive law to eliminate and punish
land grabbers and encroachers. This is one
of Karachi's greatest problems. The court
has already dealt with some cases suo motu
and otherwise, and will continue to do so
whenever necessary or appropriate.
375
Sometimes Supreme Court is the last hope
of the citizens or a community which turns
to it for redress when all other avenues are
denied to them. But overall it is the duty of
both Governments to formulate such law
and initiate it in the appropriate Assembly;
and thereafter to implement it fully without
showing any favour or immunity to any
person whether a political favourite, ally or
for any other personal or party
consideration;

that monitoring of the criminal cases should

take place in view of the observations made
in the case of Sheikh Liaqat Hussain v.
Federation of Pakistan (PLD 1999 SC 504).
Besides, the appointments of the Presiding
Officers of the Anti-Terrorism Courts
should also not be delayed for any reason, as
it was experienced during the hearing of the
376
case that those appointments were delayed
for a period of nearly two years. However,
under the direction issued by the court, the
Presiding Officers were appointed and it is
expected that such delays shall not be
allowed to occur in future;

that since innocent citizens have lost their

lives, number of .which comes to 1310
during the current year. Similarly, a good
number of citizens have been injured and/or
lost their valuable property, both movable
and immovable, therefore, Provincial
Government/Executive shall constitute a
Commission to assess their losses and on its
recommendation, compensation must be
paid to the sufferers without partisan
consideration, as early as possible;

377
Supreme Court directed that there must be
no `no go areas' at all in Karachi. If any is
found or credibly reported to the court the
Police and, if required by the Provincial
Government, the Rangers shall take strong
and decisive action to eliminate it.
Moreover, if such an area is proved to exist
to the satisfaction of the court, Supreme
Court may require the Inspector General
Police himself, and if necessary the DG
Rangers also, to personally lead the
operation into such areas. The Police and
Rangers are therefore, expected to conduct
the on-going operation across the board
without showing any favour to any one and
without being influenced from any quarter,
be it political or otherwise. In case they are
asked to obey any illegal orders, or to show
leniency to any criminal, it will be their duty
to bring it to the notice of the court and
appropriate orders will be passed
378
accordingly;

that an independent and a depoliticized

investigation agency be deputed to conduct
investigation of cases fairly, honestly and
without being influenced in any manner.
Similarly, the prosecution agency
comprising competent prosecutors and the
Provincial Government/Executive must
provide protection to the witnesses so that
they may depose against the perpetrators of
crimes without any fear, enabling the courts
to decide cases against them in accordance
with law. The prosecutors, particularly for
the Anti-Terrorism Courts should be
appointed in a highly transparent manner
according to the Constitution and the law.
Appointments of prosecutors are required to
be undertaken without any political whims
and considerations;
379
that DG NADRA and the Inspector General
Police will set up a special joint cell with
specialized officials and experts along with
sufficient manpower to establish several
teams to visit on the spot and identify illegal
foreigners so that they may be dealt with
strictly in accordance with law after a proper
hearing and opportunity to present proof of
their citizenship. They should attempt to
conclude this exercise preferably in one
year;

that the Inspector General Police shall

collect the record and facts about the
disappearance or elimination of all police
and other officials who took part in the
Karachi operations of 1992 and 1996 or
were witnesses in ethnic or related crimes
and present a report to the court within the
380
next one month also showing whether their
families were compensated or not;

that the Provincial Government shall place

on record of the court copies of all judicial
inquiries instituted in the matter of law and
order in Karachi since 1985. These shall be
retained for perusal and for any necessary
action or appraisal of the situation at any
time in the future;

that the Provincial Government/Executive

shall ensure smooth running of economic
and commercial activities and shall take
necessary steps that provide protection to
businessmen against uncalled for and illegal
shutter down and strikes. During arguments,
it was also brought to the Court's notice that
due to illegal strikes and shutter down calls,
381
the normal life of citizens of Karachi is
paralyzed, and allegedly it causes loss of
billions of rupees in a day, therefore, it is
observed that the Government and the
political parties shall evolve a respectable
way out to avoid such a situation in future;
and

that a Committee be constituted by the

Provincial Government/Executive, headed
by the Chief Justice of Sindh High Court,
who shall be assisted by the Chief Secretary,
the heads of the security agencies i.e. para-
military organizations and Inspector General
Police, to supervise and ensure that law
enforcement agencies take action
indiscriminately, across the board against
the perpetrators involved, in causing
disturbances in Karachi. The Chief Justice
shall convene the meeting at least once a
382
month to review the implementation of
present judgment and copy of the
proceedings shall be transmitted to the
Registrar of Supreme Court for perusal of
Judges and passing appropriate orders at a
later stage, if need be.

Barrister Zafarullah Khan, Advocate

Supreme Court for Petitioners (in
Constitution Petition No.61 of 2011).

Maulvi Anwar-ul-Haq, Attorney General for

Pakistan, Syed Ashiq Raza, D.A.-G., M.
Shoaib Shaheen D.A.G., Raja Aleem
Abbasi, D.A.-G., Ms. Asma Jehangir,
Advocate Supreme Court/President SCBA
and Anwar Mansoor Khan, Senior Advocate
Supreme Court/President, SHCBA, Abdul
Fattah Malik A.G. Si,ndh, Shahadat Awan,
383
P.G. Sindh, Wajid Ali Durrani, I.G.P.,
Sindh, Saud Ahmed Mirza, Addl. I. G.
Sindh and Anwar Subhani, Legal Consultant
(On Court Notice).

Abdul Hafeez Pirzada, Senior Advocate

Supreme Court [assisted by Abdul Sattar
Pirzada, Advocate] for Province of Sindh.

Dr. Babar Awan, Senior Advocate Supreme

Court and A.S.K, Ghouri, Advocate-on-
Record for the Federation.

Arif Chaudhry, Advocate Supreme Court

and A.S.K. Ghouri; Advocate-on-Record for
M/o Interior.

384
Syed Iftikhar Hussain Gillani, Senior
Advocate Supreme Court for Applicant (in
C.M.A. No.4108 of 2011).

Abdul Mujeeb Pirzada, Senior Advocate

Supreme Court and Mazhar Ali B. Chohan,
Advocate-on-Record for Applicant (in
C.M.A. No.531-K of 2011).

Muhammad Aqil, Advocate, President

KBA, Syed Haider Imam Rizvi, Advocate,
Gen. Secy. and Iftikhar Javed Qazi,
Advocate Supreme Court, Vice Chairman
Sindh Bar Council for Applicants (in
C.M.A. No.532-K of 2011).

Ghulam Qadir Jatoi, Advocate Supreme

Court/Advocate-in-Record for Applicant (in

385
C.M.A. No.533-K of 2011).

Khawaja Naveed Ahmad, Advocate

Supreme Court and Mazhar

Ali B. Chohan, Advocate-on-Record for

Applicant (C.M.A. No.535-K of 2011).

Irfanullah Marwat, Applicant in person (in

C.M.A. No.541-K of 2011).

Syed Iqbal Haider, Senior Advocate

Supreme Court and K.A.Wahab, Advocate-
on-Record for Applicant (in C.M.A.
No.544-K of 2011).

386
Faisal Kamal Aalam, Advocate Supreme
Court and Ghulam Qadir Jatoi, Advocate-
on-Record for Applicant (in C.M.A.
No.546-K of 2011).

Rasool Bux Palijo, Advocate Supreme Court

and Ghulam Qadir Jatoi, Advocate-on-
Record for Applicant (in C.M.A. No.552-K
of 2011).

Jamil Ahmad Virk, Advocate Supreme

Court and Mazhar Ali B.

Chohan, Advocate-on-Record for Applicant

(in C.M.A. No.555-K of 2011).

Javed Ahmad Chhattari, Advocate

387
(Applicant) (in person) (in C.M.A. No.558-
K of 2011).

Ashraf Samoo, Advocate/President Malir

Bar Association for Applicant (in C.M.A.
No.560-K of 2011).

Mst. Surriya (Applicant) in person (in

C.M.A. No.561-K of 2011).

Dr. Farogh Naseem, Advocate Supreme

Court Dr. Kazi Khalid Ali, Advocate
Supreme Court and Izhar Alam Farooqi,
Advocate-on-Record for Applicant (in
C.M.A. No.565-K of 2011).

Afaq Ahmed (through Jail) for applicant (in

388
C.M.A. No.569-K of 2011).

Dates of hearing: 26th & 29-30 August, 5-9

& 13 September, 2011.

JUDGMENT

IFTIKHAR MUHAMMAD
CHAUDHRY, C.J.---Islam is a religion of
peace and tolerance and it stands for safety,
security and sanctity of human life. Islam
abhors unlawful killing of innocent people
and strictly prohibits it in a number of
Quranic verses and Ahadith. In Surah Al-
Maidah Verse 32, Allah says:--

389
 "Because of that, We ordained for the
Children of Israel that if anyone killed a
person not in retaliation of murder, or to
spread mischief in the land - it would be
as if he killed all mankind, and if anyone
saved a life, it would be as if he saved
the life of all mankind. And indeed, there
came to them Our Messengers with clear
proofs, evidences, and signs, even then
after that many of them 'continued to
exceed the limits (e.g. by doing
oppression unjustly and exceeding
beyond the limits set by Allah by
committing the major sins) in the land."

Some of the other verses of the Holy Quran

are as under:-

"And (remember) when We took your

390
 covenant (sayings: Shed not the blood of
your (people), nor turn out your own
people from their dwellings. Then, (this)
you ratified and (to this) you bear
witness." [Sura Al-Baqarah Verse 84]

"And whoever kills a believer

intentionally, his recompense is Hell to
abide therein; and the Wrath and the
Curse of Allah are upon him, and a great
punishment is prepared for him." [Sura
An-Nisa Verse 93]

The Holy Prophet [SAW] said -

"O People, just as you regard this month,

this day, this city as Sacred, so regard
the life and property of every Muslim as

391
a sacred trust. Return the goods entrusted
to you to their rightful owners. Hurt no
one so that no one may hurt you.
Remember that you will indeed meet
your Lord, and that He will indeed
reckon your deeds……." [The Farewell
Sermon (Khutbatul-Wada)]

"The biggest sins are: To join others in

worship with Allah; to be undutiful to
one's parents; to kill somebody
unlawfully; and to take an oath Al-
Ghamus." [Sahih Bukhari, Vol VIII,
P.434, Number 667]

"Narrated Abdullah bin Umar: One of

the evil deeds with bad consequence
from which there is no escape for the one
who is involved in it is to kill someone
392
 unlawfully." [Sahih Bukhari, Vol IX,
P.2, Number 3]

2. This aspect of the Islamic teachings, as

well finds its reflection in the Constitution
of the Islamic Republic of Pakistan 1973.
The Constitution, in its very Preamble,
postulates that the principles of democracy,
freedom, equality, tolerance and social
justice, as enunciated by Islam, shall be fully
observed and the fundamental rights,
including equality of status, of opportunity
and before the law, social, economic and
political justice, and freedom of thought,
expression, belief, faith, worship and
association, subject to law and public
morality; shall be fully guaranteed. These
very principles have been made a
substantive part of the Constitution under
Article 2A. Thus, it is the duty of the State
393
to protect and safeguard all these
Fundamental Rights including the right to
life and liberty as envisaged by Article 9 of
the Constitution, which has been interpreted
by this Court in Shehla Zia's case (PLD
1994 SC 693) as under:--

"Article 9 of the Constitution provides

that no person shall be deprived of life or
liberty save in accordance with law. The
word "life" is very significant as it
covers all facts of human existence. The
word "life" has not been defined in the
Constitution but it does not mean nor can
it be restricted only to the vegetative or
animal life or mere existence from
conception to death. Life includes all
such amenities and facilities which a
person born in a free country is entitled
to enjoy with dignity, legally and
394
constitutionally. For the purposes of
present controversy suffice to say that a
person is entitled to protection of-law
from being exposed to hazards of
electromagnetic fields or any other such
hazards which may be due to installation
and construction of any grid station, any
factory, power station or such like
installations. Under the common law a
person whose right of easement, property
or health is adversely affected by any act
of omission or commission of a third
person- in the neighbourhood or at a far
off place, he is entitled to seek an
injunction and also claim damages, but
the Constitutional rights are higher than
the legal rights conferred by law be it
municipal law or the common law. Such
a danger as depicted, the possibility of
which cannot be excluded, is bound to
affect a large number of people who may
395
 suffer from it unknowingly because of
lack of awareness, information and
education and also because such
sufferance is silent and fatal and most of
the people who would be residing near,
under or at a dangerous distance of the
grid station or such installation do not
know that they are facing any risk or are
likely to suffer by such risk. Therefore,
Article 184 can be invoked because a
large number of citizens throughout the
country cannot make such representation
and may not like to make it due to
ignorance, poverty and disability. Only
some conscientious citizens aware of
their rights and the possibility of danger
come forward."

3. In case of Arshad Mehmood v.

Government of Punjab (PLD 2005 SC 193)
396
also, the Court observed that the word `life'
used in Article 9 of the Constitution includes
all such amenities and facilities which a
person born in a free country is entitled to
enjoy with dignity, legally and
constitutionally. The word `life' in the
Constitution has not been used in a limited
manner; a wide meaning should be given to
enable a man not only to sustain life but to
enjoy it. The State is duty bound to protect
the life and property of its citizens in
accordance with law against all the
atrocities, target killings, homicide, etc. The
basic human rights of life, liberty and
enjoyment of one's property have been
recognized nationally as well as
internationally. Article 3 of the Universal
Declaration of Human Rights provides that
`everyone has the right to life, liberty and
security of person', no one shall be subjected
to torture or to cruel, inhuman or degrading
397
treatment or punishment; everyone has the
right to recognition everywhere as a person
before the law; and all are equal before the
law and are entitled without any
discrimination to equal protection of the
law. Article 17 (ibid) lays down that every
one has the right to own property alone as
well as in association with others. It is worth
mentioning here that no society can make
any progress in a state of chaos and disorder.
It is manifest to hypothesize that the law and
order condition prevailing in a country has a
direct and significant bearing on the pace
and pattern of economic development of that
country. The existence of basic
socioeconomic framework of the country
anal the continuation of economic growth
without any hindrance or" interruption
depends upon subsistence of better law and
order situation. In case of break-down of
peace on account of any factors negative
398
effect is exerted on the economic growth.
Better law and order as a determinant of
economic development was spelled out in
explicit terms in the theories of growth
advanced by economists such as J.J
Spangler and W. W. Rostow. In his Theories
of Socio-economic Growth, Problems in the
Study of. Economic Growth, 1949, J.J.
Spangler has mentioned that the structure of
the prevalent value system of a community
can reasonably be considered as an
important condition of law and order,
because the value system defines the basic
norms and ethos of human conduct. For
example, if the value system of a society is
predominated by sectarian or ethnic
dispensations, then such a society would be
continuously ridden by law and order
problems, thus putting frequent twists and
turns to the process of economic growth.
W.W. Rostow, in Politics and the Stages of
399
Growth, 1971, has extended the theme of
stage, `propensities' and their linkages to the
role of political factors, institutions and the
law and order framework' in determining the
pattern of economic growth. The primary
tasks of any legal government are defined as
the provision of security, welfare and
growth, and constitutional order. Thus there
is a clear cut interconnection between law
and order and economic development.

4. Article 14 of the Constitution of Pakistan

ensures dignity of every individual. In the
case of `Commissioner of Income Tax v. Eli
Lilly Pakistan' reported as 2009 SCMR
1279, this Court observed that:

"It is the duty and obligation of the State

on account of the various provisions of
400
 the Constitution to provide the
atmosphere based on honesty by
providing equal protection of law. Every
citizen must be treated equally, dignity
of human being life should be
maintained, and liberty of life and
honour must be guaranteed as envisaged
in the Articles 9, 14 and 25 of the'
Constitution."

5. Articles 15 and 18 of the Constitution,

respectively relate to freedom of movement
etc. and freedom of trade, business or
profession and have been interpreted by this
Court in the case titled "Government of
Pakistan v. Zamir Ahmad" reported as PLD
1975 SC 667, in the following words:--

"Article 18 of the Constitution of

401
Pakistan, which relates to the freedom of
trade, business or profession, which
corresponds to Article 15 of the interim
Constitution, and which incidentally held
the field at the relevant time, assures the
citizens the right to enter upon any
"lawful profession of occupation" and
"to conduct any lawful trade or
business". It is important to point out that
the word "lawful" qualifies the right of
the citizen in the relevant field. This
clearly envisages that the State can by
law ban a profession, occupation, trade
or business by declaring it to be unlawful
which in common parlance means
anything forbidden by law. Prostitution,
trafficking in women, gambling, trade in
narcotics or dangerous drugs are
common place instances of unlawful
profession or trade. These are inherently
dangerous to public health or welfare.
402
 Therefore, on the wording of Article 18
of the Constitution, the right to enter
upon a profession or occupation or to
conduct trade or business can hardly be
described to be a Constitutional or
Fundamental Right when such right may
be denied by law. In this respect our
Constitution stands in sharp contrast with
the corresponding provision of the Indian
Constitution which omits the use of word
"lawful" in the relevant Provision."

The same principle was enunciated by this

Court in the case of Arshad Mehmood
(supra). This Court observed that the
Government has the authority to regulate a
lawful business or trade. Reasonable
restriction, however, does not mean
prohibition or prevention completely.
Article 24(1) of the Constitution envisages
403
that no person I shall be deprived of his
property save in accordance with law.

6. Any democratic set up consisting of

citizens and functionaries in the country
under the Constitution is bound to show its
loyalty to the State, for to be loyal and
faithful to the State is the basic duty of every
citizen under Article 5 of the Constitution.
This Court in the case of Shahid Orakzai v.
Pakistan through Secretary Law (PLD 2011
SC 365) held that Article 5(2) of the
Constitution has mandated that obedience to
the Constitution and law is the inviolable
obligation of every citizen wherever he may
be and for every other person for the time
being within Pakistan. The chosen
representatives, who have acquired authority
on behalf of their electors as members of the
National Assembly, Senate or Provincial
404
Assemblies as per mandate of their oath,
which they take before entering upon office,
are bound to bear true faith and allegiance to
Pakistan. The oath of the office of members
of the National Assembly and Senate as set
out in the Third Schedule provides that the
members will perform their functions
honestly, to the best of their ability,
faithfully and in accordance with the
Constitution and law; that they will act in
the interest of the sovereignty, integrity,
solidarity, well-being and prosperity of
Pakistan and they will preserve, protect and
defend the Constitution. Therefore, while
holding a constitutional office, the chosen
representatives of the people have to remain
true to their oath and to observe
constitutional limits in all circumstances.

7. As per the scheme of the Constitution, all

405
the federating units, namely, Balochistan,
Khyber Pakhtunkhwa, Punjab and Sindh are
the essential components of the Federation
by virtue of the parliamentary system of
government prevalent in the country. The
Federal Government is being run through
Prime Minister and Federal Ministers and
their executive authority extends to the
matters with respect to which Parliament has
power to make laws, etc. Similarly the
Provincial set-up is being run through Chief
Minister and the Provincial Ministers. The
Governor of a Province is to be appointed as
per Article 101 by the President on the
advice of the Prime Minister. It is to be
noted that the Governor who is holder of a
constitutional post and acts as the agent of
the President, has to keep the Federation
informed of the affairs of the Province,
although as per Article 105, the Governor
shall act on the advice of the Cabinet or the
406
Chief Minister.

8. Under Article 130 of the Constitution the

Chief Minister of the Province has to be
elected by the votes of the majority of the
total membership of the Provincial
Assembly. The member who gets majority
votes of the total membership shall be called
upon by the Governor to assume the office
of the Chief Minister and holds office
during. the pleasure of the Governor,
however, at any time, if the Governor is of
the opinion that the Chief Minister is not
commanding majority in the House, he shall
summon the Provincial Assembly and
require the Chief Minister to obtain a vote of
confidence from the Assembly. The Chief
Minister shall cease to hold office if a
resolution for vote of no-confidence is
passed by a majority of the total
407
membership of the Provincial Assembly as
per Article 136. The President can suspend
the functions of the Provincial Assembly
subject to availability of the circumstances
under Article 234. The Governor shall not
exercise his powers under this clause unless
he is satisfied that the Chief Minister does
not command the confidence of the majority
of the members of the Provincial Assembly.
In case the Governor intends to act against
the Chief Minister, then it is incumbent upon
him to summon the Provincial Assembly
and require the Chief Minister to obtain a
vote of confidence from the Assembly as
referred to above. Reference may also be
made to the case of Muhammad Anwar
Durrani v. Province of Baluchistan reported
as PLD 1989 Quetta 25 wherein the Court
while interpreting Articles 107 and 112 of
the Constitution observed as under:

408
"Under Article 107 of the Constitution,
duration of Provincial Assembly is five
years. Therefore, dissolution of
Provincial Assembly before its
constitutional period must be justified on
the definite reasons provided by the
Constitution extraordinary powers of
dissolution of Assembly, must be
exercised carefully, faithfully and in
accordance with the provisions of the
Constitution. According to their
admissions, the Chief Minister had no
clear majority except with the casting
vote of the Speaker. In such
circumstances, Constitution properly
demanded that advice of such Chief
Minister should have been weighed with
caution and sanctity of basic charter
should have been maintained. An
Assembly is an important organ of the
State and every effort should have been
409
 explored which is possible under the law
to save the Assembly from dissolution
Governor, before taking extreme action
of dissolution of Assembly under the
advice of Chief Minister, ought to have
advised him to seek vote of confidence
before his advice was accepted. We have
come to the conclusion that a Chief
Minister who had not obtained vote of
confidence from majority members of an
Assembly could' not advise the Governor
to dissolve the Assembly under Art.
112(1) of the Constitution."

However, a Provincial Assembly cannot be

dissolved by the Governor except under
circumstances warranting such dissolution
as per Article 112.

410
9. A Proclamation of Emergency may be
issued by the President of Pakistan
providing for imposition of emergency due
to internal disturbance beyond the power of
Provincial Government to control, a
resolution from Provincial Assembly of the
Province shall be required, however, if the
President acts on his own, the Proclamation
shall be placed before both houses of
parliament for approval of each house within
10 days. As per Article 232(7), a
Proclamation of Emergency is to be laid
before a joint sitting and shall cease to be in
force at the expiration of two months, unless
before the expiration of that period it has
been approved by resolution of the joint
sitting. A proclamation issued under Article
234 may, by like resolution, be extended for
a further period not exceeding two months at
a time, but no such Proclamation shall in
any case remain in force for more than six
411
months. It is competent for the Majlis-e-
Shoora (Parliament), in terms of Article
234(5) of the Constitution, in joint sitting to,
inter alia, confer on the President the power
to make laws with respect to any matter
within the legislative competence of the
Provincial Assembly. Under Article 245 of
the Constitution, the Federal Government
also intervenes in the affairs of the
Provinces and may call upon the military to
act in aid of civil administration.

10. The Federation and Provinces are

equally responsible to adhere to the
provisions of the Constitution, particularly
for ensuring the enforcement of
Fundamental Rights as guaranteed by the
Constitution. The Federal and the Provincial
Governments, though not directly, but
indirectly share their responsibility in
412
running the affairs of the Province in
accordance with the relevant provisions of
the Constitution.

11. The National as well as Provincial

Assemblies have to uphold constitutional
norms but unfortunately, in the past, the
political parties were blamed for having
failed to assert their role in bringing true
democratic rule based on the norms of social
justice, peace and tranquility and on account
of non-adherence to the constitutional
provisions, which, resulted in dissolution of
these bodies. In the years 1958, 1977 and
1999, when the Army Generals, in their
wisdom, dismissed the Governments,
dissolved the Assemblies and imposed
martial law in the country. Each time, the
matter came up before this Court, but
legality was accorded to the acts of the
413
Generals. It was, however, for the first time
in November, 2007 when like action taken
by the then Chief of Army Staff was not
accepted by the Superior Judiciary, which
ultimately led to the ouster of the retired
General and restoration of the democratic set
up in the country.

12. Primarily, it is the responsibility of the

Provincial Government to maintain law and
order in the territories of the respective
Provinces for the purpose of smooth running
of economic and social life and without
disturbance in the daily affairs because if the
life and liberty of the citizens is, in any part
of a Province at stake, highhandedness
continues to remain unabated; atrocious acts
like target killings, torture, extortion, etc.,
become the order of the day and then neither
the Provincial Government can discharge its
414
duties nor the people consider themselves
safe and protected. Virtually, in that case,
discomfort painfully envelops the whole
Province and decay soon creeps in breaking
the very fabric of human life of the citizens.

13. The city of Karachi is the Capital of the

Province of Sindh, and undoubtedly the hub
of-great economic and financial activities.
Karachi continues to be an important
financial and industrial centre for Sindh and
the whole country and handles most of the
overseas trade of Pakistan and the Central
Asian countries. It accounts for a .large
portion of the GDP of Pakistan. Karachi's
population has continued to grow and is
estimated to have exceeded 18 million
people. According to a legend, this city
started as a fishing settlement, where a
fisherwoman, Mai Kolachi, settled and
415
started a family. The village that grew out of
this settlement was known as Kolachi-jo-
Goth (The Village of Kolachi in Sindhi).
When Sindh started trading across the sea
with Muscat and the Persian. Gulf in the late
18th century, Karachi gained in importance;
a small fort was constructed for its
protection with a few cannons imported
from Muscat. The fort had two main
gateways: one facing the sea, known as
Khara Dar (Brackish Gate) and the other
facing the adjoining Lyari river, known as
the Meetha Dar (Sweet Gate). The location
of these gates corresponds to the present-day
city localities of Khaaradar (Khara Dar) and
Meethadar (Mitha Dar) respectively. By
passage of 'time, it grew into a bigger city.
The foundations of a city municipal
government were laid down and
infrastructure development was undertaken.
New businesses started opening up and the
416
population of the town began growing
rapidly. In 1878, the city was connected to
the rest of British India by rail. Public
building projects such as Frere Hall (1865)
and the Empress Market (1890) were
undertaken. In 1876, Muhammad All Jinnah,
the Founder of Pakistan, was born in the
city, which by now had become a bustling
'city with mosques, churches, courthouses,
markets, paved streets and a magnificent
harbour. By 1899 Karachi had become the
largest wheat 'exporting port in the east. The
population of the city was about 105,000
inhabitants by the end of the 19th century,
with a cosmopolitan mix of Muslims,
Hindus, Europeans, Jews, Parsis, Iranians,
Lebanese, and Goans. By the turn of the
century, the city faced street congestion,
which led to South Asia's first tramway
system being laid down in 1900. In later
years, so Karachi prospered as a major
417
centre of commerce and industry during the
Raj, attracting communities of: Africans,
Arabs, 'Armenians, Catholics from Goa,
Jewish, Lebanese, Malays, and Zoroastrians
(also known as Parsees) in addition to a
large number of businessmen. As the
movement for independence almost reached
its conclusion, the city suffered widespread
outbreaks of communal violence between
the majority Muslims and the minority
Hindus, who were often targeted by the
incoming Muslim refugees. In response to
the perceived threat of Hindu domination,
self preservation of identity, language and
culture in combination with Sindhi Muslim
resentment towards wealthy Sindhi. Hindus,
the Province of Sindh became the first
Province of India to pass the Pakistan
Resolution, in favour of the creation of the
Pakistani State. The ensuing turmoil of
independence led to the expulsion of most of
418
Karachi's Hindu community. While many
poor low caste Hindus, Christians, and
wealthy Zoroastrians (Parsees) remained in
the city, Karachi's native Sindhi Hindu
community fled to India and was replaced
by Muslim refugees who, in turn, had been
uprooted from regions belonging to. India.
District Karachi was chosen as the capital
city of Pakistan and it accommodated a huge
influx of migrants and refugees from India
to the newly formed country. As a
consequence, the demographics of the city
changed drastically. However, it still
maintained a great cultural diversity as its
new inhabitants arrived from different parts
of India. In 1958, the capital of Pakistan was
shifted from Karachi to Islamabad and
Karachi thus became the capital of Sindh.
During the 1960s Karachi, was seen as an
economic role model around the world.
Many countries sought to emulate Pakistan's
419
economic planning strategy and one of
them, South Korea, copied the city's second
"Five-Year Plan" and World Financial
Centre in Seoul is designed and modeled
after Karachi. With economic growth and
prosperity, peace and tranquility reigned in
the city, business places were full of activity
till late night with a lot of hustle and bustle
seen all around and it came to be known as
the city of lights. Being a big port city, it
contributed, roughly stating, about 60- 70
per cent of the total revenue of the country.

14. The 1980s and 90's saw an influx of

illegal Afghan refugees from the Afghan
war into Karachi. Political tensions erupted
and the city was wracked, at different points
of time, with violence among groups widely
speculated to be aligned with various
political parties. In this behalf, a reference is
420
made to the report of the Commission of
Enquiry into Karachi Affairs filed by Syed
Iqbal Haider, ASC, which reflects, inter alia,
the figures relating to population,
geographical area, roads, vehicles, housing,
police, number of riot cases of the years
from 1985 to 1989, number of persons
killed/injured, number of police
officers/men martyred/injured, damage to
private and public property including
vehicles, petrol pumps, houses, shops,
factories, cinemas, offices, schools, banks,
police stations, railway stations, telephone
exchanges, hospitals, imposition of curfews
on account of clashes between religious
groups (Shias & Sunnis), clashes between
police and residents, ethnic riots, drug
mafia, firing and looting, etc.

15. The law and order worsened during the

421
period from 1992 to 1994 when Operation
Clean up was, allegedly, launched against
Mohajir Qaumi Movement (MQM).
Constitution Petition No.46 of 1994 was
filed before this Court by MQM (Mohajir
Qaumi Movement) through Senator Ishtiaq
Azhar, Convener Central Coordination
Committee. It was submitted in the said
petition, inter alia, that the law and order
situation in Karachi was deteriorating day by
day, the workers of MQM were abducted,
arrested and murdered and their dead bodies
were not handed over to their relatives. It
was further submitted that thousands of
members of MQM were denied protection
from illegal arrest without any warrant,
extra-judicial detention, death in custody,
etc. It was asserted that Fundamental Rights
of the petitioner contained in Articles 9, 10,
14, 15, 16, 17, 18, 19, 22, 24 and 25 were
violated, therefore, a declaration was sought
422
that the petitioner be allowed to function in
accordance with the scheme of the
Constitution. A voluminous reply was filed
on behalf of the Federation and the Province
denying the allegations attempting to
present, allegedly; their side of the case
citing horrifying instances holding MQM
responsible for the worsening situation. The
case was fixed on various dates, but
ultimately it was not pursued and vide order
dated 26-10-1999, the above petition was
dismissed for non-prosecution.

16. It appears that on account of the

worsening law and order situation, another
operation was conducted during the year
1996 and similar action continued thereafter
also. In this context, Constitution Petitions
Nos. 6 & 13 of 1999 were filed by the MQM
wherein complaints of physical torture of the
423
MQM workers and activists by the law
enforcement agencies were agitated and
directions to the law enforcement agencies
for pre- and post-interrogation medical
examination of all persons taken into
custody by them by an independent medical
practitioner of their choice to enable them to
obtain certificate about their physical
condition, were sought. It was pleaded that
no suspect be subjected to any kind of
interrogation until such a certificate is
handed over to the next of his kin and in the
event of evidence of physical torture, the
respondent Governments be directed to
register appropriate criminal cases against
the members of the law enforcement
agencies in whose .custody the suspect was
entrusted for interrogation. Protection was
also sought against arrest of elected
representatives of MQM unless any
incriminating material was available to
424
justify such an action. The case came up for
hearing on 14-1-1999, but the representative
of the petitioner stated that the case was to
be argued by another counsel, therefore,
request for adjournment was made.
Thereafter, the petitioners never approached
this Court for fixation of the petitions.

17. Critical/serious and dismal condition of

law and order, once again emerged on
account of various factors for the past few
months, particularly in the months of July
and August 2011 as widely reported in the
print and electronic media, e.g. Al-Akhbar,
The Daily Express, The News, The Daily
Nawa-e-Waqt, The Daily Jang, The Daily
Times, The Frontier Post, The Daily Nation,
The Daily Sahafat, Aaj Ki Awaz and various
News Channels, e.g., Express, GEO,
SAMA, PTV, AAJ, Dunya, Dawn, etc., that
425
the lives and properties of the people of
Karachi are not safe, frequent killings of
innocent citizens have made their lives
miserable; citizens are being abducted for
ransom; beheaded dead bodies of innocent
people with arms and legs tied and wrapped
in sacs, are being recovered in large
numbers; street crimes are in abundance and
different groups are involved in target
killings. Recovery of a large number of dead
bodies almost everyday; brutality and
heinousness of the offences; passivity of the
Government functionaries; involvement of
gangs in money extortion, nefarious and
bloody activities of land mafia and drug
mafia; damage to valuable properties of the
citizens; shifting of capital from Pakistan to
Malaysia and Bangladesh (as reported in
some clippings) and transfer of dead bodies
from Karachi to the places of their origins in
different parts of the country causing
426
discomforting stir, harassment and fear in
the minds of people, provide substantial
evidence that Karachi has reached the verge
of destruction posing a threat to the very
stability of Pakistan. Recently, on this issue,
different views were being expressed by the
observers, analysts and anchor persons about
causes of the catastrophe.

18. In that scenario, on a note put up by the

Registrar of this Court, based on press
clippings, CDs and DVDs provided by
private TV Channels showing a dismal
situation within the jurisdiction of several
police stations of Karachi, the instant
proceedings were initiated under Article
184(3) of the Constitution vide order passed
on 24-8-2011 in the following terms:--

427
"I have gone through above noted facts
reported in the print/flashed in the
electronic media, perusal whereof
presents a bleak/.dismal picture of
bloodshed, arson, kidnapping/abduction
for ransom, widespread violence, illegal
collection of money (Bhatta) from
traders, which prima facie are violative
of Articles 9, 14, 15, 18 and 24 of the
Constitution. Prima facie, the Executive
has failed to protect the life, liberty,
dignity, property and freedom of the
general public as is manifested in the
above note/reported. Therefore, let this
note be converted into petition under
Article 184(3) of the Constitution. Notice
be issued to learned Attorney General for
Pakistan to appear and submit a
comprehensive report about the above
incident, which have been taking place in
Karachi for the last more than one
428
month. The report should be based on the
material to substantiate the same, which
should be collected from the Federal and
Provincial law enforcement and
intelligence agencies.

The Chief Secretary and PPO of the

Province of Sindh are directed through
Advocate General to submit details of
the incidents in view of the fact noted
herein above in the office note. They
should also provide the number of
persons who have been killed/injured in
these incidents for the last one month.
They should also place on record copies
of the daily situation reports duly
prepared by the concerned police officers
for the perusal of PPO and the Chief
Secretary.

429
 The F.I.Rs. and other material be also
filed in order to assess violation of the
fundamental rights of the citizens noted
herein above. Notices be also issued to
President, Supreme Court Bar
Association as well as President, Sindh
High Court Bar Association to appear
and assist the Court.

Put up in Court on 26th. August, 2011."

19. On 26-8-2011, this Court, after a

preliminary hearing, in view of ongoing
bloodshed, killing, arson, collection of
bhatta, etc., being committed in Karachi,
passed the following order: -

"2. Learned Attorney General for

430
Pakistan has stated that due to paucity of
time he could not prepare a report as per
the directions of the Court, therefore, he
needs some time. It has been explained.
to him that on account of non-adherence
to the constitutional provisions, reference
to which has been made herein-above,
incidents of brutal murders and
commission of heinous crimes have
occurred in which, according' to the
information laid before the Court by the
media, gangs are involved in extortion of
money, nefarious/bloody activities of
land mafia and drugs mafia and damage
to the valuable properties of the citizens
have taken place, therefore, relevant
material need to be collected for
ascertaining the extent of the violation of
the constitutional provisions as such he
may convey to all the law enforcing
agencies at Federal and Provincial level
431
that they should provide all the necessary
material highlighting the incidents with
reference to the jurisdiction of various
police stations, involvement of the
accused persons, their identity, if
possible, and failure of the police
functionaries to proceed with them in
accordance with law. To achieve this
object, he should convene a meeting with
the concerned functionaries and place a
report on the next date of hearing, as is
directed in order dated 24-8-2011.

3. Mr. Abdul Fattah Malik, learned

Advocate General Sindh, has submitted
copies of DSRs for the period
commencing from 24-7-2001 to 23-8-
2011 and has also filed brief of more
than 232 F.I.Rs. which, according to
him, could be collected by him so far,
432
therefore, he is required to do the needful
before the next date of hearing. Orally,
he has pointed out that during the past
one month 306 people have been killed
and their particulars shall also be
furnished. He is required to furnish the
same indicating the police stations where
people were killed; F.I.Rs., if any, were
registered; how many dead bodies of the
killed person were found; how many of
them were found beheaded and/or their
arms and limbs were chopped and
whether the investigation commenced
and evidence collected or not against the
accused involved. We have pointed out
to him that he should convey to the Chief
Secretary and IGP Sindh who are
primarily responsible to ensure law and
order in the Province that they should
proceed against all types of accused
persons across the board and on the next
433
date of hearing he would arrange a
presentation in the Court room with
reference to details of the police stations
where the incidents have taken place and
the manner in which the victims were
killed, the F.I.Rs. registered and the
names of persons posted in the police
station who are responsible etc. so we
may understand that the police is serious
in conducting the investigation and to
report to/challan the accused; so also in
prosecuting them in Courts on solid
material so that they may not go scot free
on the basis of said information. He is
also directed to submit in the same
manner the details of the injured persons
and the properties destroyed in rowdyism
by the culprits and whether in respect of
such occurrences evidence has so far
been collected or not. The report must be
comprehensive one and there should be a
434
presentation on the Power Point by the
police. It is to be noted that further
proceedings shall, as well, take pace in
respect of violation of the constitutional
position.

4. Mr. Abdul Hafeez Pirzada, learned Sr.

ASC, has stated that he would appear on
behalf of the Province of Sindh through
Chief Executive and shall place
important documents on record on or
before the next date of hearing.

5. Syed Iftikhar Hussain Gillani, learned

Sr. ASC, stated that he intends to file an
application on behalf of Awami National
Party (ANP) to become a party in the
instant case. He may do so and even
otherwise being a Senior Counsel of this
435
Court he can address the argument on the
basis of material if he has in his
possession to assist the Court.

6. Mr. Babar Awan, learned Sr. ASC, has

stated that he will represent the
Federation and he has filed nomination
on behalf of Secretary, Ministry of Law
and Justice, Islamabad.

7. Ms. Asma Jehangir, President

Supreme Court Bar Association of
Pakistan, has stated that there are certain
preliminaries which need to be
completed by the executive in respect of
registration of cases, investigation and
arrest of nominated accused persons.
According to her, the names of all the
accused persons have not been disclosed;
436
no action has been taken against those
accused person's whose names have
appeared in the F.I.Rs. and they have not
been arrested. On this, learned Advocate
General Sindh has replied that few
arrests have taken place. Be that as it
may, he is required to submit on the next
date of hearing, the details of the same
because, unless sufficient evidence is
collected, no useful purpose will be
served by sending them to face trial.

8. Mr. Anwar Mansoor Khan, President

Sindh High Court Bar Association, has
filed copies of resolutions of the Bar
Association as well as press clippings
and has pointed out that during recent
incidents starting from January, 2011,
nineteen Advocates have been murdered.
He has also 'pointed out that even
437
yesterday i.e. 25-8-2011, one of brilliant
Advocates of Sindh High Court namely -
Mr. Muhammad Murtaza Chinnoy has
been brutally (sic) yet according to his
information the investigation has not
been conducted properly. The IGP Sindh
is directed to look into the matter
personally and communicate the report
in this behalf through Advocate General
Sindh on the next date of hearing.
Learned Advocate General Sindh is also
required to submit report mentioning the
names of the culprits involved in the
killings of the Advocates and showing
whether they have been arrested or not.

9. The Chief Secretary and the IGP

Sindh have submitted reports which may
be kept on record. Let the case be
adjourned to. 29-8-2011 to be fixed at
438
 Branch Registry of this Court at
Karachi."

20. It is important to note that in response to

order dated 24-8-2011, the Chief Secretary
in his report on the affairs of Karachi, stated
as under:

* After 9/11, the Phenomenon of

international terrorism emerged in which
bomb blasts, and beheading of foreigners
attracted world attention. The terrorist
groups targeted US diplomats and
carried out suicide attacks at US
consulate thrice. The French engineers
were killed outside the Sheraton Hotel,
even Muharram processions and shrines
were not spared, besides suicide attack at
CID building.
439
* During the briefing sessions, it was
pointed out to me that army operation in
the north and insurgency in Balochistan
had caused internal displacement, in the
garb of which certain criminal/hostile
elements have moved into Karachi and
have also smuggled arms. The hostile
foreign agencies are backing up to cause
chaos in the economic capital of Pakistan
under a clandestine way against the
State. Citing various reasons the
emerging situation, I was told that
Karachi population is approaching 18
million with diverse ethnic communities
competing for resources. This mega city
has been allowed to expand and grown in
an unplanned way by the city managers
in the past. Resultantly, the city lacks
basic infrastructure to support such a
large human settlement and provide
440
 basic civic amenities to all the growing
urban jungle of Katchi Abadies.

* The Police have its own shortcoming and

weaknesses both in terms of man-power
and other resources, and have further
drained due to security challenged in the
post 9/11 scenario.

* In early July, 2011 violent incidents took

place in which 16 people were killed in
Karachi. This was followed by an armed
clash on 22nd July, 2011 between
militant of, two groups in the area of
District East (Malir and Landhi),
resultantly, 14 people lost their lives. The
fragile peace in Orangi Town was
disturbed again due to clash between two
ethnic communities in the last week of
441
 July, 2011 taking a death toll of 37 lives.

* On 17th August, 2011, Five (05) dead

bodies were found in P.S. Garden area.
On the same day, Ex-MNA was shot
dead. These incidents triggered violence
in other area i.e. Kharadar, Lyari, Sher
Shah, Baldia and Chakra Goth.
Resultantly, 62 persons were killed and
95 got injured from 17 to 20 August,
2011, which include 03 policemen, who
embraced Shahadat in line of duty.
During the past one month there has
been incidents of killing.

Cases Persons
Registered Killed
Murder 306
Killing 232
442
 Gum shot 159
injury 98

STEPS TAKEN BY THE CHIEF

SECRETARY, SINDH

* On 8th July, 2011, the government of

Sindh entrusted powers under section 5
of ATA, 1997 to Pakistan Rangers
(Sindh) enabling and making Rangers
responsible to apprehend the criminal
elements involved in firing and killing of
innocent . citizens.

* The Government of Sindh further

authorized Rangers to cordon, search and
use force to control the situation in the
443
 affected areas of Karachi. Copy of the
Notification bearing No.SO(LE-I)/HD/6-
66/11, dated 8th July, 2011 (copy
submitted as Annex A).

* On 25th July, 2011, the President of

Pakistan, while reviewing the Karachi
situation, directed to enhance the
operational capability of Police (Annex-
B). Accordingly, the Government of
Sindh immediately made available and
released Rs.450 million for procurement
of APCs from HIT. These' 15 APCs will
be delivered by end of August, 2011 to
Sindh Police.

* The policy directive on the subject was

issued by the Home Department vide
No.SO(LE-II)/HD/3-1/2011 dated 23
444
 August, 2011, wherein the lead
implementing agency i.e. Police was
reminded of legal responsibility to
ensure safety of people's life and
establish public order as per law,
irrespective of any consideration of
political linkage of anyone involved in
this cycle of violence. Copy of the letter
spelling out the policy of the subject is
attached as Annex `C'.

21. The IGP Sindh also filed a report to the

following effect:--

* Karachi is the 7th largest city of the

world having peculiar/ethnic nature
comprising of Punjabi, Pakhtoon,
Balochi, Sindhi and Urdu speaking
communities. It has a population of
445
 approximately 18th million and spread
over area on 3527 sq. kms.

* The ethnic divide became pronounced

during last few years as a result of influx
of people from other parts of the country.
With this change in demography, there
are over 150 areas where two or more
communities are facing each other.

* It has long history of terrorism/violence

as is indicated of the cases mentioned
below:

HIGH PROFILE CASES

(2004-2007)

446
S. Police Incidents No of No. of
No Station decease Injure
. d d
1. Mithadar Bomb Blast 23 98
2004 in Haidery
Masjid
Situated
inside the
compound
of Sindh
Madrasat-
ul-Islam
2. Brigade Bomb Plast 22 29
2004 in Imam
Bargah Ali
Raza
3. Boat Basin Corps 10 13
2004 Commande
r Motor
Cade Firing
incident at
447
 Clifton
Bridge
4. Site 2004 Bomb 10 44
Blast at
Binoria
restaurant
5. Soldier Bomb 55 125
Bazar 2006 Blast at
Nishtar
Park
6. Various PSs 12 May, 40 127
2007 2007,
arrival of
Chief
Justice in
Karachi
7. Bahaduraba Bomb 119 353
d 2007 Blast in the
welcome
procession
of Ms.
448
 Benazir
Bhutto at
Karsaz,
Main
Shahrah-e-
Faisal
8. Preedy 2009 IED 17 39
explosion
in Ashoora
Procession
near Light
House
Traffic
Signal,
M.A.
Jinnah
Road,
Karachi
9. Saddar 2010 IED 16 19
explosion
Parking
449
 Area in
front of
emergency
JPMC
Karachi
10. Ferozabad IED 11 24
2010 explosion
Ramp
Shahrah-e-
Quaideen
Nursery
Bridge

* During past one month there has been

incidents of killing:

Cases Persons
Registered Killed
Murder/Killing 306
450
 232
Gun shot 159
injury 98

* In response Karachi Police has arrested

26 accused in target killings in the last
month. To date 117 target killers 'have
been arrested and 179 cases have been
deterred and challenged.

* In the last one month 3075 raids have

been conducted wherein 495
Pos/absconders and 1162 criminals have
been arrested. 03 K.Koves, 508
Pistols/Revolvers, 02 Rifles, 13
Repeaters and 03 Hand grenades have
been recovered from criminals.

451
* The prolonged power and water shortage
in Karachi city have also resulted in
frequent public disorder on daily basis,
which engages the police in fire fighting
duties. In the previous months police has
arrested 1142 miscreants involves in
arson and breach of peace.

* Action is also being taken against

extortionists/Bhatta collectors. 70 Bhatta
collectors have been arrested and 43
cases have been detected. In the previous
month 13 extortionists were arrested.

* In spite of the limited resources the

Police and Law Enforcing Agencies have
made hectic efforts to combat the
terrorist activities in the city and have
been able to control the terrorism and
452
 target killing. The law enforcing
agencies are now in full control of the
situation and are prepared to met any
challenging situation for ensuring the
safety of life and property of the citizens.

22. On 29-8-2011, the IGP gave a power

point presentation in the Courtroom,
relevant excerpts whereof are as under:

Causes of Violence

 Recent demographic changes

 Ethnicity, Sectarianism and factional
in-fighting
 Clashes between land and bhatta
mafias

453
 Deep mistrust among the ethnic
groups
 Easy access to illicit weapons and
misuse of Arms Licenses

Types of Killings

 Killings due to personal enmity

 Political motivated killings
 Sectarian killings
 Ethnic killings
 Gang war killings
 Target killing of Police Officials
 Victims of stray/cross fire

454
 ETHNIC INTERFACES/FLASH
POINTS IN KARACHI

Katti Pahari Urdu speaking v.

Pathan
Qasba Colony Urdu speak v.
Pathan
Sharafi Goth Urdu speaking v.
Bloch
Banaras Chowk Urdu speaking v.
Pathan
Quaidabad Urdu speaking v.
Sunni Tehreek
New Karachi Sunni Tehreek v.
Sipah-e-Sahaha
Sachal Urdu speaking v.
Afghanis
Surjani Town Pathan v. Seraiki
speaking
Malir city Urdu speaking v.
455
 Baloch
Landhi Urdu speaking v.
Pathan
Al-Falah Urdu speaking v.
Baloch
Korangi 2½ (Chakra Urdu speaking v.
Goth) Sindhi
Khokharpar/Saudabad Urdu speaking v.
Sindhi

DEAD BODIES FOUND

BEHEADED/TORTURED

FROM 24-7-2011 TO 24-8-2011

POLICE NO. OF
STATION DEAD
BODIES
456
 N.K.I. Area 4
Kalri 2
`SITE-B I
Docks 1
Total: 8

DEAD BODIES FOUND IN GUNNY

BAGS

FROM 24-7-2011 TO 24-8-2011

S.No. POLICE NO. OF

STATION DEAD
BODIES
1. Baghdadi 6
2. Nazimabad 2
3. Dsrakhshan 1
4. Risala 1
457
 5. Nabi Bux 1
6. Kharadar 1
7. Bin 1
8. Sharafi Goth 1
9. Rizvia 1
10. Iabal Market 1
11. Mominabad 1
Total 17

PATTERN OF VIOLENCE

FROM 24-7-2011 TO 24-8-2011

S. DAT AREAS DISPUR PERSO PERSO

N E OF TED NS NS
o. VIOLEN PARTIES KILLE INJUR
CE D ED
458
1 24 Baldia i, Urdu 91 47
July Taimoria Speaking
to 31 Kalakot v.
July Pashtoon
ii. Urdu
Speaking
v. Baloch
2. 1st to Surjani Urdu 38 53
3rd Town Speaking
Aug and
2011 Seraiki v.
Pashtoon
3. 6th Peerabad Urdu 13 16
Augu SITE, Speaking
st Orangi v.
2011 Pashtoon
4. 17the Kharadar Gang war 111 146
to , convertin
24th Mithadar g into
Augu , Lyari, ethnic
st, Chakra violence
459
 2011 Goth (Urdu
speaking
v. Baloch
and
Sindhi).

New Phenomena of abduction and killing

Starting from 17th August, 2011

> Triggered by the kidnapping and killing of

five Baloch residents of Singo Lane, Lyari
(4 of them footballers)

Date Death/Toll Injured

17-8-2011 17 30
18-872013. 29 23
19-8-2011 22 39
20-8-2011 07 15
460
21-8-2011 13 09
22-8-2011 13 10
23-8-2011 08 09
24-8-2011 02 11
25-8-2011 04 02
26-8-2011 02 03
27-8-2011 01 06
28-8-2011 02 04

POLICE SHAHEEN/INJURED

From 24-7-2011 to 24-8-2011

S. Police No. of No. of

No. Station Police Police
Station Injured
1 SITE-B 1
2 Zaman 4 29
461
 Town
3 Rizvia 1
4 Sharafi 1
Goth
5. Awami 1
Colony
6. Pak 1
colony
TOTAL 9 29

23. It has been pointed hereinabove that the

peace of Karachi city had been disturbed by
criminals by committing both heinous as
well as petty crimes. Some of the major
killings have been highlighted in the
presentation given by the IGP, which has
been reproduced hereinabove, including 232
incidents of murder wherein 306 persons
were killed and 98 incidents of gunshots
causing injuries to 159 persons also took
462
place. According to available figures,
approximately, more than 50 dead bodies in
gunny bags have been recovered from
several localities including areas where
dominant majority of people speaking Urdu,
Pashto, Balochi etc. are living. In this
behalf, the IGP Sindh furnished details
along with F.I.R. numbers and the areas
where such dead bodies were found, brief of
which is as under:-

Sl.No. Police Station Number of

Dead bodies
1. Baghdadi 06
2. Nazimabad 02
3. Darakshan 01
4. Risala 01
5. Nabi Bux 01
6. Kharadar 01
7. Bin Qasim 01
463
 8. Sharafi Goth 01
9. Rizvia 01
10. Iqbal Market 01
11. Mominabad 01

24. Some torsos i.e. human bodies without

heads and limbs, rendering it difficult to
identify the same, have also been found.
Besides, buses with passengers have been
set on fire as a result whereof several
passengers were burnt alive while others
died inside the bus due to fear and shock. In
this behalf, reference is made to F.I.R.
No.460/2011 Police Station Jackson, West
Karachi. Similarly, perusal of F.I.R.
No.314/2011 under sections 302/324 PPC
r/w section 7 ATA, dated 5-9-2011
registered at Police Station Pakistan Bazar,
reveals how brutally people were killed by
the criminals. Besides, so many persons
464
were abducted and later their dead bodies
were thrown in the streets. During the
months of July and August 2011 the streets
of Karachi, sorrowfully, saw a large number
of such like dead bodies. Some of abducted
persons were, however, recovered by the
intervention of the law enforcing agencies
and on our direction, their statements were
recorded. Out of them, only four persons,
namely, Muhammad Junaid s/o Muhammad
Hussain, Muhammad Rafiq s/o Muhammad
Hussain, Mehtab s/o Shakeel and Sarfaraz
s/o M. Ahmed agreed to lodge the F.I.R.
whereas rest of them, on account of fear,
were not agreeable to do it. Reference may
be made to the following two statements:

25. When the hearing of this case was in

progress, about four dead bodies were
recovered and on our direction, the IGP
465
submitted a report on 9-9-2011 to the
following effect:

"(1) An unknown dead body was found

(on 5-9-2011) in Red Colour gunny Bag
at Katchara Kundi, Grahaib Nawaz
Dispensary, previous UC-8, Office
Sector-14, B Orangi Town without head,
hands and legs inquest u/s 174, Cr.P.C.
has been conducted. The dead body is
still un-identified. The dead body is kept
in the Edhi Center. A case vide F.I.R.
No: 314/2011 u/s 302/324 PPC r/w 7-
ATA has been registered through State at
Pakistan Bazar Police Station against
unknown accused persons, on 5-9-2011.
The investigation is under way. The
detail report is enclosed at Annex "A"

466
(2) Another dead body was found in a
Bag (Bori) on road between Country
Heights & Yasir View Gulzar-e-Hijri
Scheme No: 33, Karachi. A case vide
F.I.R. No. 580/2011 u/s 302/365/34 PPC,
at Police Station Sachal on the complaint
of one Zabih Khan s/o Haji Sardar
Muhammad was registered against the
nominated accused namely Sikandar
Javed (APMSO), Ahmed Shah, (3)
Umair Siddiki, (4) Zohaib, (5) Liaquat
'Ali Qureshi s/o Ghazi Uddin, (6)
Khutram, (7) Zeeshan. The incident was
witnessed by one Muhammad Hassan
Saleem s/o Muhammad Saleem Hussain,
(2) Syed Obaid-ur-Rehman, along with
other PWS Naseeb Ullah s/o Badshah
Gul. The I.0 arrested one accused person
'namely Ahmed Khan s/o Khan
Muhammad on the pointation of the
complainant. Later on, after the
467
satisfaction of the complainant he was
released being not involved in this
offence. Hectic efforts are underway to
arrest the nominated accused person,
copy of the compressive report is
enclosed at Annex-"B".

(3) The third dead body was found in

Garage behind Car Parking of JPMC
Hospital, Karachi. Proceeding u/s 174
Cr.P.C. was conducted by police. (7-9-
2011). No mark of torture was found on
the dead body. Postmortem was held at
Jinnah Hospital Karachi by MLO vide
TM No: 741 of 2011, dated: 7-9-2011, in
which MLO opined that his death was
occurred due to' asphyxia/strangulation.
In this connection F.I.R. No: 281/2011
u/s 302, PPC was lodged on behalf of
State at Saddar Police Stain u. During
468
investigation no any eye-witness has
appeared/traced as yet. Efforts are
underway and NADRA head office was
contacted to provide assistance, 'who
cooperated and identify the deceased as
Muhammad Farukh Nawaz having CNIC
No: 56302-2990221-9, his temporary
address was provided as CB-58/4,
Kakool Road Abbottabad. The family of
the deceased was traced out by the
District Police' Officer Abbottabad Mr.
Muhammad Kareem Khan. The brother
of the deceased namely Javed (Cell
No.0334- 8963217) was contacted who
disclosed that his brother deceased was a
chartered accountant and was doing his
internship in some organization in
Karachi and living in Defence Garden.
He also disclosed that his brother
returned to Karachi on 7-9-2011, after
celebrating Eid with his family in
469
Abbottabad. Further investigation is
underway. The copy of the report as
enclosed herewith at Annex-"C".

(4) On 7-9-2011, Police Constable

No.18609 namely Javed Iqbal s/o Abdul
Ghafoor was going on his Motor Cycle.
Two unknown Motor Cyclist stopped
him at Bakra Peri Road, near Evergreen
School, Malir City Karachi and opened
fire upon him who sustained bullet
injures and expired on the spot. A case
F.I.R. No.248 of 2011 u/s 302/34, P.P.C.
on 7-9-2011 at Police Station Malir City
on behalf of state is registered. During
investigation two persons from the
locality disclosed involvement of two
criminals namely Kaloo Baloch s/o
Mawali Baloch and Akbar Punjabi s/o
Baloch Khan in this offence. Hectic
470
efforts are underway to arrest them.
Copy of the report is attached herewith at
Annex-" D".

(5) The forth death body was found of

one Faheem-ul-Kareem Advocate along
with two other persons namely Wajid
and Mst. Quratulain from a Flat No.7/C,
14th Commercial Street, DHA, Ph-II,
Karachi. A case vide F.I.R. No.340 of
2011 under section 302/34, PPC at
Police Station Defence is registered. A
detailed report of Mr. Tariq Razzaq
Dharejo, SP Saddar Division South,
Karachi regarding efforts made to trace
and arrest the accused is attached
herewith at Annex-"E". (It has been
taken back)

471
(6) One young man namely Sahreef s/o
Muhammad Anwar Baloch has been
kidnapped from near NA'DRA Office,
near Bahadurabad Police Station. In this
regard F.I.R. No.114 of 2011 u/s 365,
P.P.C. has been registered at Police
Station Kalakot by one Muhammad
Akram s/o Muhammad Anwar. Detail
progress report is attached herewith as
Annex-"F".

The list of 17 kidnappees supplied by

Advocate Mr. Jameel Ahmed Virk on
behalf of the applicants in C.M.A.
No.555 of 2011 w h o have returned to
their homes in injured condition. In this
regard the concerned quarters have
submitted their report and in all 16 cases
the F.I.Rs. have been registered the same
is enclosed herewith as Annex "G". The
472
 investigation is under way.

Further 34 dead bodies have found in

Bags. In this regard a comprehensive
report has already been submitted before
this honourable Court on 26-8-2011.

26. It is noteworthy that the law enforcing

agencies have detected a torture cell during
hearing of the case at Karachi and succeeded
in getting video clips of the most heinous,
gruesome, brutal, horrible and inhuman acts
of the criminals, who are found cutting
throats of men and drilling their bodies. But,
now it is informed that more such cells have
been detected in different parts of Karachi.

27. As far as the injured or wounded persons

473
are concerned, they are countless in number
in all the disturbed areas of Karachi where
different political parties have got dominant
population on the basis of the language
being spoken by them. It may be noted that
the objective of above-noted brutal and
gruesome incidents is to terrorize the
citizens of Karachi and keep the entire
society a hostage.

28. An impression has been created that on

account of demographical reasons, the above
issue has its origin on ethnic divides, but Mr.
Abdul Hafeez Pirzada, Sr. ASC appearing
for the Province of Sindh, and Syed Iftikhar
Hussain Gillani, Sr. ASC for ANP
vehemently dispelled such an impression
and we also tend to agree with them because
we feel that it is a turf war between various
groups on account of their financial and
474
economic interests in the huge economic,
industrial and commercial activities, etc. of
the city of Karachi highlighted in the
presentation given by the IGP, relevant
aspects whereof have been noted herein
above. However, there is, and has for some
time in the past, been a visible element of
ethnic strife in Karachi and some elements
and parties benefited from keeping the
tension alive. There are not only Urdu
Speaking, (When the Court uses the term
`Urdu Speaking' it is for a specific purpose.
As it is the language common to all and
even those who proudly speak Pashto,
Punjabi, Sindhi or Baluchi, can and do speak
Urdu), Pashtun, Sindhis, and Balochis,
Punjabis, Saraikis, but foreigners and others
also live in Karachi and all of them are the
victims of violence, crime, fear and
insecurity, as is evident from F.I.Rs.,
reports, etc. submitted from time to time by
475
the police department. Some of the hardened
criminals, who associate themselves with the
political parties do take support of the
powerful groups/political, parties as is
evident from the reports of the joint
investigation team of various intelligence
agencies including ISI and others. These
reports have been filed by Syed Iftikhar
Hussain Gillani, throwing sufficient light on
the criminal activities of these heartless
criminals such as Ajmal Pahari, Kamran
Madhuri and many others. It is to be noted
that the aforementioned JIT reports were
prepared after 'causing arrests of various
accused persons involved in the commission
of offences this year in the month of March.

29. It goes without saying that if the

involvement of above accused persons
allegedly aligned with a political party is
476
established, it may entail serious
consequences for said political party as well,
because a political party cannot be formed
or cannot operate in a manner prejudicial to
the sovereignty or integrity of Pakistan.

30. It is important to note that the learned

counsel representing various political parties
have though not categorically denied
affiliation of above noted persons with their
parties, but have taken exception to the JIT
report; on the ground that the same are not
admissible in evidence. It is also important
to note that during the discussion, it has
been informed that two notorious accused
persons, namely, Kamran Madhuri and
Sohail Commander involved in criminal
activities were not nominated in the F.I.Rs.,
yet on arrest of one of them he has been
found in injured condition. Investigation is
477
being conducted to collect relevant material
against them. It is also astonishing that most
of the accused persons nominated in crimes
have got their acquittal on the plea of alibi
and false involvement. We are surprised to
know that the law enforcement agencies,
who are supposed to conduct investigation
honestly, had allegedly involved persons
falsely or half-heartedly in the commission
of offences in which their fellow policemen
were murdered. Indeed, they have not shown
any professionalism and have failed to bring
the real culprits to book.

31. It seems that the police primarily being

responsible to enforce law and order has no
intention to deliver. Either they are scared or
they are dishonest or absolutely lack the
requisite skills. It could be that in the year
1992 operation clean up was launched
478
against MQM wherein statedly, the police
had played an active role, but subsequently,
92 police officers/officials disappeared and
up till now there is no clue of their
whereabouts nor is it known that by whom,
and under whose patronage, such persons
were abducted and/or killed. Another reason
appears to be that police force has been
highly politicized, recruitments have been
made on political considerations. It came to
light during hearing of the case that in police
force many police officers have been
recruited on political considerations who
have managed to occupy such posts for
extraneous considerations and senior
officers in the rank of SSP, SP and DSP etc.
have been inducted into the force from other
organizations without following any rules
and even they have not undergone training
for the purpose of policing. To highlight this
aspect, following information has been
479
obtained from the Advocate General,
Sindh:-

1. Mr. Dost Ali Baloch from

Intelligence Bureau, absorbed in Sindh
Police with effect from 14-10-1998,
presently working as Director General
Finance, CPO Sindh Karachi (BS-20).\

2. Mr. Muhammad Malik from FIA,

absorbed in Sindh Police with effect
from 31-10-2007, presently working as
Director General Traffic, Planning &
Regulation, Sindh Karachi (BS-20).

3. Mr. Muhammad Riaz Soomro from

Anti-Narcotic Force, absorbed in Sindh
Police with effect from 26-2-2008;

480
 presently working as SSP, District
Mirpurkhas (BS-19).

4. Mr. Muhammad Ali Baloch

appointed as Assistant Director
(Computer) in Sindh Police on 6-4-1999,
presently working as SSP, District Tando
Muhammad Khan (BS-19).

5. Mr. Abdul Hadi Bullo from OMG,

absorbed in Sindh Police with effect
from 16-7-2003, presently working as
SSP District Matiari (BS-19).

6. Mr. Attaullah K. Chandio, from

Solicitor Department, absorbed in Sindh
Police with effect from 1-6-1995,
presently working as SP, Special Branch,

481
 Mirpurkhas (BS-18).

7. Mr. Shahid Hussain Mahesar on

deputation from Intelligence Bureau,
with effect from 26-7-2009, presently
working as SSP Political (SB) Karachi
(BS-18).

8. Mr. Zameer Ahmed Abbasi on

deputation from National Accountability
Bureau with effect from 31-12-2008,
presently working as SDPQ/Frere,
District South, Karachi Range (BS-17).

9. Mr. Shiraz Asghar Shaikh, on

deputation from PEMRA with effect
from 23-8-2008, presently working as
SDPO/Darakhshan, District South,

482
 Karachi Range (BS- 17).

10. Mr. Faisal Mukhtar Vakaasi on

deputation from National Accountability
Bureau with effect from 31-3-2009,
presently working as Principal, Training
& Recruitment, Karachi Range (BS-17).

11. Mr. I. D. Mangi, on deputation from

ACE, Sindh with effect from 10-4-2009,
presently working as DSP/ACLC,
Karachi Range (BS-17).

12. Major (R) Khurram Gulzar, re-

employed on contract basis as DIGP
(BS-20) for a period of one year with
effect from 27-12-2010.

483
 13. Col.(R) M. A. Wahid Khan, re-
employed as Principal, S.B,B. EPT
Razzakabad, Karachi (BS-19) for a
period of one year with effect from 1-9-
2008. Extension granted for two years
with effect from 1-9-2009.

14. Major Col. (R) Muhammad Ahsan

Umar, re-employed as SSP, District East,
Karachi Range (BS-19) for a period of
two years with effect from 24-9-2010.

32. The IGP stated that presently, the total

strength of police force is 32524, out of
which approximately 12000 are' performing
security duties, including 8000 deployed
with VIPs and only 20000 personnel of
police force were left for the purpose of
policing of 18 million people in Karachi. He
484
stated that by means of the Sindh (Repeal of
the Police Order, 2002 and. Revival of the
Police Act, 1861) Act, 2011 passed by the
Provincial Assembly, the Police Order, 2002
has been repealed in the Sindh Province, as
a result of which the Police Act, 1861 has
been revived and the IGP is helpless in
transferring even a DSP from one place to
another.

33. The majority of the police force

performing duty in Karachi comprises brave
and devoted officers and men. They risk
their lives often targeted by unidentifiable
enemies enjoying mobility in action. They
deserve the respect of the nation. However,
as the IGP conceded that 30-40 percent of
police force are non-cooperative either for
the reasons that they have secured their
appointments on political considerations or
485
they have associated themselves with
different groups including political parties,
having vested interests in the affairs of
Karachi; therefore, at times it becomes very
difficult for him to effectively take action
against the real culprits. When called upon
to explain as to how two accused persons
involved in case F.I.R. No.434 of 2011,
Police Station Zaman Town, have been
released by the Administrative Judge, ATC,
accepting their plea of alibi, where a
concerted attack was launched upon police
officers/officials who were being transported
in a private bus towards the disturbed areas
for controlling riots and bringing peace,
resulting in death of 6-7 policemen, causing
injuries to others, the IGP disclosed that the
investigating officer has been suspended and
the then SHO of the relevant Police Station
has already been moved out and disciplinary
proceedings are in hand against him. This
486
categorical statement in respect of only one
incident is sufficient to infer that the
statement so made by the IPG carries
sufficient weight. If the police
official/officers are not sincere with the
victims belonging to their own rank and file,
what expectation could one have from such
force, which, admittedly, stands politicized,
for initiating forceful action against the
culprits involved in causing target killing,
brutal murders, cutting limbs of human
bodies and putting the dead bodies and
torsos into bags with a view to terrorizing
the society as a whole in general and the
inhabitants of Karachi city in particular.
During the period of one month, i.e. from 24
July to 24 August, 2011, as per information
submitted before the Court about the killing
of people of 306 persons 232 F.I. Rs. have
been registered mostly against unknown
persons and on completion of investigation
487
in many cases, reports have been submitted
declaring the cases for disposal under A
class, which according to the relevant Police
Rules means that the crime is untraceable.
Summary of the said cases is as under:-

S.No Police F.I.R. No. and Status of

. Station Date Investigatio
n.
1. Aram 189/2011. A-Class
Bagh dt/31-7-2011
u/s 302/34
PPC
2. Daraksha 265/2011 dt. A-Class
n 3-8-2011 u/s
302 PPC
3. Eidgah 197/2011 dt. A-Class
27-7-2011 u/s
302/324/34
PPC u/s
488
4. Eidgah . 200/2011 dt. A-Cclass
302/34 PPC
u/s 30-7-2011
5. Eidgah 202/2011 dt. A-Class
1-8-2011 u/s
302/324/34
PPC
6. Eidgah 203/2011 dt. A-Class
302/34 PPC
u/s 5-8-2011
7. Eidgah 206/2011 dt. A-Class
9-8-2011 u/s
324/302/34
PPC
8. Frere 150/2011 dt. A-Class
302 PPC u/s
9-8-2011
9. Garden 144/2011 dt. A-Class
302 PPC u/s
25-7-2011
10. Garden 151/2011 dt. A-Class
489
 364/302, PPC
u/s 2-8-2011
11. Garden - 154/2011 dt. A-Class
364/302 PPC
u/s 5-8-2011
12. Garden 146/2011 dt. A-Class
302/34 PPC
u/s 27-7-2011
13. Kalakot 99/2011 dt. A-Class
24-7-2011 u/s
302/324/34
PPC
14. Kalakot 100/2011 dt. A-Class
302/34 PPC
u/s 25-7-2011
15. Kalakot 102/2011 dt. A-Class
302.34 PPC
u/s 29-7-2011
16. Nabi 137/2011 dt. A-Class
Bux 302 PPC u/s
24-7-2011
490
17. Napier 119/2011 dt. A-Class
24-7-2011 u/s
302/324/34
PPC
18. Napier 124/2011 dt. A-Class
302/34 PPC
u/s 3-8-2011
19. Napier 127/2011 dt. A-Class
302/34 PPC
u/s 9-8-2011
20. Preedy 473/2011 dt. A-Class
302 PPC u/s
9-8-2011
21. Risala 127/2011 dt. A-Class
302/34 PPC
u/s 10-8-2011
22. Boat 391/2011 dt. A-Class
Basin 324/34 PPC
u/s 1-8-2011
23. Boat 323/2011 dt. A-Class
Basin 4-8-2011 u/s
491
 324/34 PPC
24. Boat 324/2011 dt. A-Class
Basin 5-8-2011 u/s
324/34 PPC
25. Defence 276/2011 dt. A-Class
28-7-2011 u/s
324/34 PPC
26. Garden 149/2011 dt. A-Class
31-7-2011 u/s
224/34, PPC
27. Eidgah 193/2011 dt. A-Class
23-7-2011 u/s
302.34 PPC
28. Kaki 176/2011 dt. A-Class
8-8-2011 u/s
147/148/149/4
35 PPC
29. Preedy 474/2011 dt. A-Class
9-8-2011 u/s
384 PPC

492
34. The IGP has also made before this Court
another admission while giving his
presentation, summary of which has been
reproduced hereinabove, that there are no go
areas within the jurisdiction of different
police stations. In this view of the matter, we
are of the opinion that the police without
having any commitment/dedication and
other reasons highlighted hereinabove, is not
in a position to make any break through
unless the whole force is de-politicized and
their morale is boosted by the senior
officers, having credible service/training,
commitment, dedication always ready to
discharge their functions willingly and to the
best of their ability. In the briefing, it has
also been pointed out that so many members
of the police lost their lives in encounters
with the criminals. It is a matter of great
concern that the perpetrators do not feel any
hesitation in killing the police personnel for
493
the purpose of creating' atmosphere of fear,
harassment to terrorize the whole society.
The number of such police officers has been
noted herein above. In addition to it, in
recent incidents on 5th or 6th September,
2011, a dead body of a policeman, namely,
Javed Iqbal was found in the area of Bakra
Peri Road, near Evergreen School, Malir
City Karachi, regarding which F.I.R. No.248
of 2011 was registered at Police Station
Malir City. The killing of the innocent
persons has also not stopped even now, as
has been pointed out that a dead body of an
unknown person, who was badly tortured,
was found lying in the car parking of a
hospital, reference of which has already
been made herein above. There are series of
such incidents, which are taking place, one
after the other. Statedly, one policeman
succeeded in causing arrest of one alleged
accused person, namely, Shah Zore on stated
494
allegation that he was responsible for killing
innocent persons and after his arrest, on his
pointation, a dead body packed in a carton
was recovered, reference of which has been
made in the order dated 9-9-2011. In the
case, where Rangers had succeeded in
identifying a torture cell in Liyari area and a
DVD was prepared in respect of an incident,
reference of which has been made
hereinabove, on watching it, one cannot
explain in words the degree of
shamelessness, cruelty, barbarity and
brutality except summarizing that the
heinous acts of committing sodomy upon the
victims and butchering them with blunt
knives/churris were committed brazenly.
This is just one instance of the brutality and
barbarity, taking place in a torture cell which
has been pointed out to us, and it is not
known that how many other such like torture
cells are being maintained by the criminals
495
in their dens here and there in the vastness
of the city to satisfy their self as a
vengeance. As a matter of tit for tat,
gruesome and cruel methodologies have
been adopted for the purpose.

35. On 7-9-2011, Director General Rangers

Sindh, Major General Aijaz Ahmed
Chaudhry appeared in Court and stated that
the problem in Karachi is very serious,
rather more serious than that of South
Waziristan. However, he submitted that if
there was a will to do it and once the State
decides to bring peace to the city of Karachi,
no criminal could stand before the State and
escape prosecution. He further stated that
the factors which contributed to the problem
of the city of Karachi happened to be that it
is a huge city, it is based on community
system, a lot of development work has been
496
done, but there is unjust development of
infrastructure on the basis of communities
residing in vat ions parts of the city. There -
is polarization to an unprecedented level on
the political, ethnic, and/or religious divides.
According to him one day ethnic problem
occurs and next day religious problem starts.
The situation has reached such a stage where
even the health sector is divided on ethnic
and parochial basis. A patient or injured
person of one community is refused
admission or medical treatment by a hospital
under influence of another community. The
problem can only be solved through
application of special means as well as
requesting political leadership to eliminate
militancy from their wings. The political
face of the city has been taken hostage by
militant groups of political parties. Political
parties are penetrated by the criminals under
the garb of political groups who use party
497
flags. The militants and criminals are taking
refuge in the lap of political and ethnic
parties which use the flags of these parties to
commit illegal activities with impunity. The
paramilitary force is, otherwise, fully
capable of controlling the law and order
situation, the deployment of Rangers be
further extended to allow them to bring
permanent peace in the city. There are
religious gatherings, problems like KESC
issue, ethnic violence, protests/riots over
issues like Watan card distribution, Namoos-
e-Risalat, as a result whereof law
enforcement agencies are over stretched.
The Government machinery has realized the
seriousness of the situation and assured that
Rangers would bring the city back to
normalcy and ensure that people feel safe..
He also suggested the constitution of a high-
level body comprising the Chief Minister
and other stakeholders to monitor progress
498
in maintaining law and order as well as
ensuring good governance' and social
justice. The committee may be bound to
send progress reports to the Chief Justices of
the High Court and Supreme Court for
perusal.

36. The DG Rangers further stated that he

had requested in security conferences that
there should be no bar for the Rangers to
operate anywhere in the city, inasmuch as to
go to the offices of political parties, which
housed ammunition, weapons and criminals,
and now by this notification this power has
been given, According to him, in a recent
briefing on the law and order situation,
restrictions on the operations of the Rangers,
were relaxed, directing that the police,
Rangers and other law enforcement agencies
should not be stopped from conducting raids
499
in any area, including on the offices of
political parties, if the criminals take refuge
there. He said that Rangers had conducted
successful raids and arrested culprits
involved in target killings whose details
would be shared with the Court. He said that
Karachi is a mega city but unfortunately an
unjust infrastructure had divided it on ethnic
and political basis.

37. In conclusion, the DG stated that no

amount of application of kinetic means, be it
Rangers, or Army can fix the problem on
long term, rather it is the political process,
which finally prevails and provides hope to
the nation. Suggesting the way forward, the
DG Rangers submitted that there is a need to
train prosecutors, improve forensic
evidence, etc. According to him, the recent
issuance of the notification indicates that
500
there is a realization at the political and
Government level, forcing them to come up
with solution. He expressed the desire that
the notification should continue until peace
returns and so should the drive to round up
the criminals and terrorists.

38. Besides, the DG Rangers candidly

conceded that bhatta [extortion money] is a
normal practice and criminals are collecting
bhatta, which, every day, runs into at least
10 million rupees and it is being charged
from an ordinary shopkeeper, rehriwala
(push-cart peddler) up to the top
businessman by criminals who have got the
backing of the political parties who are the
stakeholders. In this behalf, Special Branch
of the Police Department had filed a report
confidentiality of the same has not been
claimed. In this report, a list of
501
chanda/bhatta collectors is available, a
perusal whereof indicates that bhatta is
being collected invariably by the persons
who claim their association with ANP,
MQM, PPP, Jamat-e-Islami, Sunni Tehrik,
etc. Besides, activists of the organizations
banned under the Anti-Terrorism Act, 1997
are also indulging in these activities. It is an
admitted fact that street crime like snatching
cell phones, purses, etc. from the citizens is
rampant in the city and there cannot be two
opinions that the citizens, by and large, are
suffering filled with fear and confusion.
They are so frightened that none of them
comes forward even to lodge the report,
rather they prefer to pay bhatta or
unhesitatingly agree to hand over their
valuables during the commission of street
crimes. The whole city seems to be in the
grip of fear.

502
39. The learned Attorney General has also
submitted a report of Intelligence Bureau
without claiming confidentiality and also
arranged briefing of ISI only for the
Members of the Bench. The Provincial
Government also produced on record report
of CID and it too has not claimed
confidentiality in respect of the same. Here
it will be pertinent to note that although, a
notice was issued to the learned Attorney
General but the Federation chose to be
represented through a private counsel Dr.
Babar Awan, learned Sr. ASC, who
remained associated with the case
throughout the proceedings. As far as
Province of Sindh through Chief Minister is
concerned, it is represented by Mr. Abdul
Hafeez Pirzada, learned Sr. ASC and the
learned Advocate General who represented
the Chief Secretary and IGP. The names of
the interveners are available in the title of
503
the case, which includes MQM through Dr.
Farogh Naseem, ANP through Syed Iftikhar
Hussain Gillani, Sindh Bachayo Committee
through Mr. Abdul Mujeeb Pirzada Sr.ASC,
PML (N) through Faisal Kamal Alam ASC,
Awami Tehrik Party through its President
Mr. Rasool Bux Palijo ASC, etc. They have
also put forward their respective pleas
containing allegations and counter
allegations. Except the learned counsel
appearing for the official respondents i.e.
Federation and the Province of Sindh, all
others including the 'interveners,
unequivocally affirmed violation of
fundamental rights of the public enshrined in
Articles 9, 14, 15, 18 and 24 of the
Constitution.

40. How important has been the Suo Motu

intervention of this court and how vital is the
504
"depoliticization of the administration",
particularly police, is indicated in the instant
case itself. Although the notification
ostensibly empowering the Rangers was
issued on July 8, 2011, but the killing spree
did not stop because, obviously, a
depoliticized administration was not
available. Thus, in July alone as many as
306 people were murdered as mentioned
above, and a greater number were injured. A
number of dead bodies were discovered in
gunny bags, many mutilated and disfigured.
The killing spree continued at this pace and
in just one week before this Court, on 24-8-
2011, took Suo Motu notice of the situation
as many as 109 citizens had been killed as
per the power point presentation given by
the IGP on 29-8-2011. Out of 25 dead
bodies found in gunny bags, 9 were found
beheaded and tortured. These, and other
related figures, mentioned in para 22 above
505
eminently justified interference by the Court
under Article 184(3). In fact the situation
was 'so grave that the Court decided
immediately to shift the venue of the
hearings to Karachi. All concerned were put
on notice. Although a few more tragic
incidents did take place during the hearing
of the case and these have been mentioned
in detail herein, but there was a dramatic
drop in the number of crimes of the variety
presently under consideration after the court
had intervened.

The lesson to be learnt from this is simple.

Initiation of Suo Motu proceedings by the
Court sent one straight and simple message
to an administration working under political
pressures: "Take no political pressure from
any quarter whatsoever". This was an
unstated message, but it was loud and clear.
506
The administration remained, and remains,
under the political Government of the
Province of Sindh but the administrators
immediately understood that they would not
be called upon to obey any illegal orders nor
to discriminate between adversaries. They
would be fair and impartial and the results
have been dramatic so far. A depoliticized
administration suddenly came to life in
fighting crimes, criminals and Mafias,
political and otherwise. That is what the
intervention of the Court achieved. We the
Judges have no guns to fight the terrorists,
but we have the authority to ensure and
strengthen the hands of those who actually
apply the law. In many cases the Suo Motu
intervention of the Court has produced such
results, stopping corruption and mal-
administration, and Karachi demonstrates
this. All over the democratic world judicial
review only strengthens democracy and
507
should be welcomed by democratic
governments, not resented and resisted. It is
now only hoped that this restraint on
political and partisan interference will also
continue after the Court winds up these
proceedings so as to enable the Police, the
administration, and the Rangers to do their
jobs in accordance with the law.

41. Too often representatives of the

Government are seen castigating the Courts
for the release of alleged terrorists and
criminals. This Court itself is often
subjected to blistering criticism, especially
by members or allies of the ruling party on
talk shows and television programmes. The
Court has shown restraint and has no ill-will.
Even otherwise the Judges cannot enter
upon a public or private debate about their
performance or judgments even though the
508
criticism is highly politicized and unjustified
as it often is these days. But the burden that
rests upon the executive and the legislature
cannot be passed on to the Courts. Courts
can only act upon evidence and material
presented before them. This has to be
collected by the executive. The Courts
cannot be blamed if the executive/police fail
in their duty. Moreover the evidence thus
collected must be evaluated according to the
laws and rules prescribed by the legislature.
In these especial circumstances it is for the
Government to ensure that cogent evidence
to support prosecution is collected and
presented in the Court. It is for the
legislature to provide processes for the
protection of witnesses, Policemen and
Judges and for the executive/government to
fully implement these reforms. Intelligence
sharing and action on intelligence that is
uncorrupted by political or extraneous
509
influence must also be ensured by the
executive. The Court expects that a new
culture of independent, depoliticized, and
non-partisan prosecution comprising
efficient, capable prosecutors will be
established by the government to aid and
assist the Courts. The Government must also
depoliticize the administration/prosecution.
This will be for its own good and for that of
the nation. The Courts will keep a watchful
eye and strike down all illegal pressures and
orders that are brought to their notice.

42. Adversarial proceedings are defined as

proceedings relating to, or characteristic of
an adversary or adversary procedures. The
term ""adversarial" has been defined in the
Concise Oxford English Dictionary,
Eleventh Edition, Revised, as under:-.

510
 "1. Involving or characterized by conflict
or opposition. 2. Law (of legal
proceedings) in which the parties
involved have the responsibilities for
finding and presenting evidence."

In "Advanced Law Lexicon" the term

""Adversarial Process" has been defined as
under: -

"A process in which each party to a

dispute puts forward its case to the other
and before a neutral judge, soliciting to
prove the fairness of their cases."

In the American Heritage Dictionary of the

English Language, Fourth Edition:
Published by Houghton Mifflin Company,

511
the term is defined as under: --

"Relating to or characteristic of an
adversary; involving antagonistic
elements: "the chasm between
management and labor in this country, an
often needlessly adversarial
…..atmosphere" (Steve Lohr)."

In Collins English Dictionary - Complete

and Unabridged, it is defined as under:

"1. Pertaining to or characterized by

antagonism and conflict

2. (Law) Brit having or involving

opposing parties or interests in a legal

512
 contest US term adversary"

The adversarial system (or adversary

system) is a legal system where two
advocates represent their parties' positions
before an impartial person or group of
people, usually a jury or judge, who attempt
to determine the truth of the case, whereas,
the inquisitorial system has a judge (or a
group of judges who work together) whose
task is to investigate the case.

43. The adversarial system is a two-sided

structure under which criminal trial courts
operate that pits the prosecution against the
defence. Justice is done when the most
effective and rightful adversary is able to
convince the judge or jury that his or her.
perspective on the case is the correct one.
513
44. As against the above, the term
"inquisitorial" is defined in "Concise Oxford
English Dictionary, Eleventh Edition,
Revised as under: --

"1. Of or like an inquisitor.

2. Law (of performing an examining

role)"

In "Advanced Law Lexicon" 3rd Edition,

2005, it is defined in the following words:

"The system of criminal justice in most

civil law nations, where judges serve as
prosecutors and have broad powers of
514
 discovery."

Webster's New World College Dictionary

Copyright 2010, by Wiley Publishing, Inc.,
Cleveland,. Ohio defines it as under --

" 1. of or like an inquisitor or inquisition

2. inquisitive; prying"

Collins World English Dictionary

defines it as under:-

"1. of or pertaining to an inquisitor or

inquisition.

515
 2. exercising the office of an inquisitor.

3. law.

a. pertaining to a trial with one person or

group inquiring into the facts and acting
as both prosecutor and judge.

b. pertaining to secret criminal

prosecutions.

4. resembling an inquisitor in harshness

or intrusiveness.

5. inquisitive; prying.

516
45. The Free Dictionary describes it in part,
as "a method of legal practice in which the
judge endeavours to discover facts whilst
simultaneously representing the interests of
the State in a trial". Under the inquisitorial
model, the obligations of a Judge are far
greater and he is no longer a passive arbiter
of proceedings but an active member of the
fact finding process.

46. An inquisitorial system is a legal system

where the court or a part of the court is
actively involved in investigating the facts
of the case, as opposed to an adversarial"
system where the role of the court is
primarily that of an impartial referee
between the prosecution and the defense.
Inquisitorial systems are used in some
countries with civil legal systems as opposed
to common law systems. Also countries
517
using common law, including the United
States, may use an inquisitorial system for
summary hearings in' the case of
misdemeanors such as minor traffic
violations. In fact, the distinction between an
adversarial and inquisitorial system is
theoretically unrelated to the distinction
between a civil legal and common law
system. Some legal scholars consider the
term "inquisitorial" misleading, and prefer
the word "non-adversarial".

47. The inquisitorial system applies to

questions of criminal procedure as opposed
to questions of substantive law; that is, it
determines how criminal enquiries and trials
are conducted, not the kind of crimes for
which one can be prosecuted, nor the
sentences that they carry. It is most readily
used in some civil legal systems. However
518
some jurists do not recognize this dichotomy
and see procedure and substantive legal
relationships as being interconnected and
part of a theory of justice as applied
differently in various legal cultures.

48. In some jurisdictions, the trial judge may

participate in the fact-finding inquiry by
questioning witnesses even in adversarial
proceedings-. The rules of admissibility of
evidence may also allow the judge to act
more like an inquisitor than an arbiter of
justice.

49. The proceedings, which are initiated as

public interest litigation in civil or criminal
matters cannot be treated. as adversarial
because of the definition of nature of the
proceedings where without contest between
519
the parties a final finding has to be recorded,
as it has so been held in the case of Tobacco
Board v. Tahir Raza (2007 SCMR 97). In
this judgment, matter relating to
maintainability of writ of quo warranto was
considered and it was held that such writ is
to inquire from a person the authority of law
under which he purports to hold public
office and it is primarily inquisitorial and
not adversarial, for the reason that a relater
need not be a person aggrieved; such
exercise can be done suo motu, even if
attention of High. Court is not drawn by the
parties concerned. The same principle has
been followed by the Court in Ch. Muneer
Ahmad v. Malik Nawab Sher (PLD 2010
Lahore 625).

50. In the case of Philips Electrical

Industries of Pakistan Ltd. v. Pakistan (2000
520
YLR 2724) it has been observed that public
interest litigation is inquisitorial in nature
where the Court may even delve into fact
finding so as to promote public interest.

51. In the case of Muhammad Munawar v.

Deputy Settlement Commissioner (2001
YLR 2350) the Lahore High Court has
observed that concept of adversarial
proceedings under which it is the duty of the
parties to produce all relevant evidence, has
been departed from inasmuch as the Courts
have also been called upon to share this
burden either on the application of the
parties or suo motu to summon and record
all the relevant evidence in order to decide
the case effectively and finally; such rule is
one of wisdom, for if a party to the litigation
fails in its duty, the Court is not denuded of
its power to summon the relevant evidence
521
so that the dispute between. the parties is
decided fairly and finally.

52. The Indian Supreme Court had the

occasion to define these expressions in
various cases, including the cases of
Peoples' Union for Democratic Rights v,
Union of India [AIR 1982 SC 1473]
[(1982)3 SCC 235], Bandhua Mukti Morcha
v. Union of India [AIR 1984 SC 802],
Peoples' Union for Liberties v. Union of
India [AIR 1996 Cal 89] and State of
Uttaranchal v. Balwant Singh Chaufal
[(2010) 3 SCC 402]. In Peoples' Union for
Democratic Rights' case (supra) the Indian
Supreme Court has observed as follows:--

"2. ….We wish to point out with all the

emphasis at our command that public
522
interest litigation which is a strategic arm
of the legal aid movement and which is
intended to bring justice within the reach
of the poor masses, who constitute the
low visibility area of humanity, is a
totally different kind of litigation from
the ordinary traditional litigation which
is essentially of an adversary character
where there is a dispute between two
litigating parties, one making claim or
seeking relief against the other and that
other opposing such claim or resisting
such relief. Public interest litigation is
brought before the court not for the
purpose of enforcing the right of one
individual against another as happens in
the case of ordinary litigation, but it is
intended to promote and vindicate public
interest which demands that violations of
constitutional or legal rights of large
numbers of people who are poor,
523
ignorant or in a socially or 'economically
disadvantaged position should not go
unnoticed and unredressed. That would
be destructive of the Rule of Law which
forms one of the essential elements of
public interest in any democratic form of
government. The Rule of Law does not
mean that the protection of the law must
be available only to a fortunate few or
that the law should be allowed to be
prostituted by the vested interests for
protecting and upholding the status quo
under the guise of enforcement of their
civil and political rights. The poor too
have civil and political rights and the
Rule of Law is meant for them also,
though today it exists only on paper and
not in reality. If the sugar barons and the
alcohol kings have the Fundamental
Right to carry on their business and to
fatten their .purses by exploiting the
524
consuming public, have the 'chamars'
belonging to the lowest strata of society
no Fundamental Right to earn an honest
living through their sweat and toil? The
former can approach the courts with a
formidable army of distinguished
lawyers paid in four or five figures per
day and if their right to exploit is upheld
against the government under the label of
Fundamental Right, the courts are
praised for their boldness and courage
and their independence and fearlessness
are applauded and acclaimed. But, if the
Fundamental Right of the poor and
helpless victims of injustice is sought to
be enforced by public interest litigation,
the so called champions of human rights
frown upon it as waste of time of the
highest court in the land, which,
according to them, should not engage
itself in such small and trifling matters.
525
Moreover, these self-styled human rights
activists forget that civil and political
rights, priceless and invaluable as they
are for freedom and democracy simply
do not exist for the vast masses of our
people. Large numbers of men, women
and children who constitute the bulk of
our population are today living a sub-
human existence in conditions of abject
poverty, utter grinding poverty has
broken their back and sapped their moral
fibre. They have no faith in the existing
social and economic system. What civil
and political rights are these poor and
deprived sections of humanity going to
enforce? This was brought out forcibly
by W. Paul Gormseley at the Silver
Jubilee Celebrations of the Universal
Declaration of Human Rights at the
Banaras Hindu University: "Since India
is one of those countries which has given
526
a pride of place to the basic human rights
and freedoms in its Constitution in its
chapter on Fundamental Rights and on
the Directive Principles of State Policy
and has already completed twenty-five
years of independence, the question may
be raised whether or not the Fundamental
Rights enshrined in our Constitution
have any meaning to the millions of our
people to whom food, drinking water,
timely medical facilities and relief from
disease and disaster, education and job
opportunities still remain unavoidable.
We, in India, should on this occasion
study the Human Rights declared and
defined by the United Nations and
compare them with the rights available in
practice and secured by the law of our
country."

527
The only solution for making civil and
political rights meaningful to these large
sections of society would be to remake
the material conditions and restructure
the social and economic order so that
they may be able to realise the economic,
social and cultural rights. There is indeed
close relationship between civil and
political rights on the one hand and
economic, social and cultural rights on
the other and this relationship is so
obvious that the International Human
Rights Conference in Tehran called by
the General Assembly in 1968 declared
in a final proclamation:

"Since human rights and fundamental

freedoms are indivisible, the full
realisation of civil and political rights
without the enjoyment of economic,
528
social and cultural rights is impossible."

Of course, the task of restructuring the

social and economic order so that the
social and economic rights become a
meaningful reality for the poor and lowly
sections of the community is one Which
legitimately belongs to the legislature
and the executive, but mere initiation of
social and economic rescue programmes
by the executive and the legislature
would not be enough and it is only
through multidimensional strategies
including public interest litigation that
these social and economic rescue
programmes can he made effective.
Public interest litigation, as we conceive
it, is essentially a co-operative or
collaborative effort on the part of the
petitioner the State or public authority
529
and the court to secure observance of the
constitutional or legal rights, benefits and
privileges conferred upon the vulnerable
sections of the community and to reach
social justice to them. The State or public
authority against whom public interest
litigation is brought should be as much
interested in ensuring basic human
rights, constitutional as well as legal, to
those who are in a socially and.
economically disadvantaged position, as
the petitioner who brings the public
interest litigation before the Court. The
State or public authority which is arrayed
as a respondent in public interest
litigation should, in fact, welcome it, as it
would give it an opportunity to right a
wrong or to redress an injustice done to
the poor and weaker sections of the
community whose welfare is and must be
the prime concern of the State or the
530
public authority.

3. There is a misconception in the minds

of some lawyers, journalists and men in
public life that public interest litigation is
unnecessarily cluttering up the files of
the court and adding to the already
staggering arrears of cases which are
pending for long years and it should not
therefore be encouraged by the court.
This is to our mind, a totally perverse
view smacking of elitist and status quoist
approach. Those who are decrying public
interest litigation do not seem to realise
that courts are not meant only for the rich
and the well-to-do, for the landlord and
the gentry, for the business magnate and
the industrial tycoon, but they exist also
for the poor and the downtrodden the
have-nots and the handicapped and the
531
 half- hungry millions of our countrymen.
So far the courts have been used only for
the purpose of vindicating the rights of
the wealthy and the affluent. It is only
these privileged classes which have been
able to approach the courts for protecting
their vested interests. It is only the
moneyed who have so far had the golden
key to unlock the doors of justice. But,
now for the first time the portals of the
court are being thrown open to the poor
and the down- trodden, the ignorant and
the illiterate, and their cases are coming
before the courts through public interest
litigation which has been made possible
by the recent judgment delivered by this
Court in Judges Appointment and
Transfer cases."

In Bandhua Mukti Morcha's case (supra)

532
after referring to the cases of Peoples' Union
for Democratic Rights, the Court has
observed as under:

"9. We have on more occasions than one

said that public interest litigation is not in
the nature of adversary litigation but it is a
challenge and an opportunity to the
Government and its officers to make basic
human rights meaningful to the deprived and
vulnerable sections of the community and to
assure them social and economic justice
which is the signature tune of our
Constitution. The Government and its
officers must welcome public interest
litigation, because it would provide them an
occasion to examine whether the poor and,
the down-trodden are getting their social and
economic entitlements or whether they are
continuing to remain victims of deception
533
and exploitation at the hands of strong and
powerful sections of the community and
whether social and economic justice has
become a meaningful reality for them or it
has remained merely a teasing illusion and a
promise of unreality, so that in case the
complaint in the public interest litigation is
found to be true, they can in discharge of
their constitutional obligation root out
exploitation and injustice and ensure to the
weaker sections their rights and
entitlements. When the Court entertains
public interest litigation, it does not do so in
a caviling spirit or in a confrontational mood
or with a view to tilting at executive
authority or seeking to usurp it, but its
attempt is only to ensure observance of
social and economic rescue programmes,
legislative as well as executive, framed for
the benefit of the have-nots and the
handicapped and to protect them against
534
violation of their basic human rights, which
is also the constitutional obligation of the-
executive. The Court is thus merely assisting
in the realisation of the constitutional
objectives."

In Peoples' Union for Liberties's case (supra)

after referring to the cases of Peoples' Union
for Democratic Rights and Bandhua Mukti
Morcha's case (supra), the Calcutta High
Court has observed as under:--

"122. It is quite obvious that in a public

interest litigation the petitioner and the
State are not supposed to be pitted
against each other, there is no question of
one party claiming or asking for relief
against the other and the Court deciding
between them. Public interest litigation is
535
 a co-operative litigation in which the
petitioner, the State or public authority
and the Court arc to co-operate with one
another in ensuring that the
constitutional obligation towards those
who cannot resort to the Courts to
protect their constitutional or legal rights
is fulfilled. In such a situation the
concept of cause of action evolved in the
background of private law and adversary
procedure is out of place. The only
question that can arise is whether the
prayers in the petition, if granted, will
ensure such constitutional or legal
rights."

53. We have observed during the hearing

that instant proceedings are not adversarial,
but inquisitorial. The information/material
laid/produced before this Court by the State
536
functionaries in pursuance of the order dated
24-8-2011, followed by the order of the Full
Bench dated 26-8-2011 and the material
produced by the interveners, reference of
which has been made in the order referred
hereinabove is sufficient for making right
conclusions. We were informed that besides
figures of crimes committed during one
month commencing from 24th July to 24th
August, 2011 noted hereinabove; about 1300
persons were killed during this year,
whereas about 1800 persons, similarly lost
their lives in the year 2010. Thus, having
gone through the material, we have no
hesitation in our mind that at large scale the
residents of Karachi have been subjected to
bloodshed, arson, kidnapping/abduction for
ransom, widespread violence, illegal
collection of money (bhatta) from traders,
etc. and that their inalienable Fundamental
Rights, such as, security of person;
537
inviolability of dignity of man; freedom of
movement; freedom of trade, business or
profession and protection of property have
been violated.

54. The fact that deadliest criminals having

affiliation with various groups are
responsible for bloodshed, arson, looting,
recovery of money (bhatta) from common
citizens and traders causing terror in the city
of " Karachi is not denied. Fearful as they
are, the people of Karachi have been
spending sleepless nights particularly during
the past months of July and August is also
not denied. The accused persons belonging
to any political or specific group are so
powerful that the police for the reason stated
have failed to arrest or collect evidence for
proving the guilt against them before a
Court of Law 'as we have noted hereinabove
538
and according to summary of disposal of
cases, most of the cases have already been
disposed of as "A" 'Class, details of which
have been mentioned hereinabove. M/S
Syed Iftikhar Hussain Gillani, Abdul
Mujeeb Pirzada, Ghulam Qadir Jatoi, Rasool
Bakhsh Palijo and Syed Iqbal Haider
representing various applicants/interveners
have blamed MQM to have let their activists
loose who, according to them, are largely
responsible for creating dismal situation of
law and order perpetrating the alleged
wrongful acts and causing terrorism in the
city. Whereas, Dr. Farogh Naseem, learned
ASC, appearing on behalf of MQM voiced
in his submissions that in actual fact the
Urdu speaking inhabitants of Karachi are the
victims of atrocious acts of criminals aligned
with various other groups, particularly
having influence in Baloch area of "Lyari
and Kati Pahari/Qasba Colony area largely
539
inhabited by Pashtuns. According to him,
hundreds of MQM workers have been
tortured and killed at the hands of such
groups. Thus, it is quite evident that
uncontrollable law and order situation
prevails, which has wrapped the city of
Karachi in terror to the utmost discomfort of
common citizens including traders, remains
undisputed, the details of which are stated
more specifically in the foregoing
paragraphs. The DG Rangers, in his
submissions, has been so vocal to say that
the law and order situation in Karachi is
worse than it happens to be in Waziristan.
The IG Police has also not lagged behind in
admitting the brazen facts. This Situation
has not only heavily affected the common
citizens of Karachi, it has virtually paralyzed
the industrial and commercial activities
ultimately affecting the whole country as
Karachi being a port city and commercial
540
hub of country, it contributes 60-70% of
revenue. Thus, there cannot be two opinions
that the worsening law and order situation in
Karachi badly affecting the inviolable
dignity, life and liberty of multitudes of
people; so also their property, movable and
immovable involve violation of
Fundamental Rights constituting it a matter
of public importance.

55. It is to be noted that, primarily it is the

duty of the Province through its executive
authorities to control the law and order
situation and ensure implementation of
Fundamental Rights of citizens. But prima
facie it seems that the Provincial Authorities
have not fulfilled their constitutional duty.
Under the Constitution, equally it is the
obligation of the Federation to protect every
Province against internal disturbances as
541
well as external aggression and to ensure
that the Government of every Province is
carried on in accordance with the provisions
of the Constitution.

56. It has been pointed out by learned

counsel for the interveners representing
different parties and groups including
MQM, ANP, Baloch Ittehad Tehrik and
others that their supporters/party men have
been butchered and are kidnapped and their
whereabouts as yet are not known.

57. According to the opinion expressed

before us, the Provincial as well as Federal
Government cannot be considered to have
been oblivious of their duties when right
under their nose, a large number of persons
were being brutally butchered everyday on
542
the streets of Karachi, which are littered
with dead bodies and torsos (human bodies
without head and limbs); sometimes also
found in abandoned places and the injured
writhing in pain; so also when innocent
citizens were being burnt inside vehicles and
torture cells were being detected by the law
enforcing agencies. The state of helplessness
prevailed, throughout, in the city of Karachi
the face of Pakistan being its economic hub
accommodating persons belonging to
different communities, including Urdu
speaking, Pashtuns, Saraiki's, and others.
The dead bodies of the persons belonging to
all walks of life i.e. Urdu speaking (word
used for the purpose of identifying in this
case), Pashtuns, Balochis and Punjabis are
being sent to their homes, within Karachi
and outside Karachi i.e. to Khyber
Pakhtunkhwa, Baluchistan and Punjab,
which is causing insurmountable fear and
543
harassment throughout the country badly
affecting economic activities on account of
disturbances taking place in Karachi. Many
people have wound up their business and
have shifted from Karachi to other places
inside the country and outside causing
colossal loss not only to the residents of
Karachi individually, but to overall economy
of the country. The whole nation is crying
hoarse, media highlighting the tragic
incidents day and night in such a state also
cannot be considered to have not come to
the knowledge of Provincial and Federal
functionaries. Unfortunately, no appropriate
and timely action has been taken by the
Provincial as well as Federal Governments
to stop these atrocious acts. Material has
been brought on record, such as, reports of
JIT, CID, IB, etc. (copies of which have
been provided to us) bearing horrifying
stories of heinous crimes committed by
544
dangerous criminals aligned with various
political parties and groups; besides very
critical situation of law and order reflected
in the classified briefing of ISI cannot be
considered that the same are not within the
knowledge of the Provincial and the Federal
Governments. This sensitive material is,
prima facie, sufficient to hold that the
Provincial Government has failed to perform
its constitutional obligations and duties.
Therefore, for the purpose of enforcement of
Fundamental Rights denied to the people as
highlighted hereinabove, this Court in
exercise of its jurisdiction under Article
184(3), which is in the nature of inquisitorial
proceedings, has the same powers as are
available to the High Court under Article
199 of the Constitution in view of the
judgments passed in the cases of
Muhammad Nawaz Sharif v. President of
Pakistan (PLD 1993 SC 473), Syed Wasey
545
Zafar v.. Government of Pakistan (PLD
1994 SC 621), Bank of Punjab v. Haris Steel
Industries (Pvt.) Ltd. (PLD 2010 SC 1109)
and Federation of Pakistan v. Munir Hussain
Bhatti (PLD 2011 SC 752).

58. There is no denial of the fact that

ensuring good governance, maintaining law
and order situation and providing security to
the persons is a primary duty of the
Government. Our religion has also
emphasized upon the significance and
sanctity of `life' as it has been noted in the
opening Para of the judgment, according to
which, if anyone killed a person, it would be
as if he killed the whole humanity, and,
similarly if anyone saved a life, it would be
as if he saved the whole humanity.
Similarly, it is the responsibility of the ruler
(government) to ensure security of all its
546
citizens, high or low, without any
discrimination. It would be appropriate to
refer here to the saying of the Second Caliph
Umar ibn al-Khattab (R.A) that if a dog dies
of hunger on the banks of the River
Euphrates, Umar will be held responsible for
dereliction of duty. [Mohtsham, Saeed M.,
Vision and Visionary Leadership - An
Islamic Perspective]. Mr. Abdul Hafeez
Pirzada, Sr. ASC appearing on behalf of the
Chief Executive of the Province suggested
in his arguments that a wake up call should
be given to the Provincial Government by
this Court, so that it may enforce the
constitutional provisions. The suggestion of
the learned counsel, however, does not
sound well as 'this is the duty of the ruler to
maintain the law and order without any
interference of the Court. It is the history of
this country that on account of law and order
situation, disturbance, absence of peace, etc.,
547
many governments were dismissed in the
past. In this behalf, reference may be made
to the instruments of dissolution of
Parliaments issued by civilian
constitutionally elected Presidents which
were upheld by the Supreme Court from
time to time:--

* Order dated 29-5-1988 whereby the

President of. Pakistan dissolved the
National Assembly under Article
58(2)(b):

"And whereas the law and order in the

country have broken down to an
alarming extent resulting in tragic loss'
of innumerable valuable lives as well as
loss of property:

548
 And whereas the life, property, honour
and. security of the citizens of Pakistan
have been rendered totally unsafe and the
integrity and ideology of Pakistan have
been seriously endangered. [Federation
of Pakistan v. Haji Muhammad Saifullah
Khan (PLD 1989 SC 166)]

* Order under Article 58(2)(b) of the

Constitution on 6th of August, 1990
dissolved the National Assembly

(d) The Federal Government has failed in

its duty under Article 148(3) of the
Constitution to protect the Province of
Sindh against internal disturbances and
to ensure that the Government of that
Province is not carried on in accordance
with the provisions of Constitution,
549
 despite the heavy loss of life and
property, the rule of terror in urban and
rural areas, riots, arson, dacoities,
kidnapping for ransom, politics of
violence among citizens and widely
condemned failure of the Provincial
Government and its law enforcing
agencies, and also, in this behalf, failed
to act under appropriate provisions of the
Constitution. [Khawaja Ahmad Tariq
Rahim v. the Federation of Pakistan
(PLD 1992 SC 646)]

* Order dated 5-11-1996 whereby the

President dissolved the National
Assembly under Article 58(2)(b)

"Whereas during the last three years

thousands of persons in Karachi and
550
 other parts of Pakistan have been
deprived of their right to life in violation
of Article 9 of the Constitution. They
have been killed in Police encounters and
Police custody.

59. In Ahmad Tariq Rahint's case (supra),

the dismissal of government was maintained
by this Court because of failure of the
Federal Government to protect the
Provincial Government of Sindh from
internal disturbances, relevant Para
therefrom is reproduced herein below : --

"28. Ground (d) in the order of

dissolution is that the Federal
Government had failed in its duty under
Article 148(3) of the Constitution to
protect Province of Sindh against
551
internal disturbances despite heavy loss
of life and property. In this respect, stand
taken on behalf of the petitioner is that
matter relating to law and order situation
in the Province was responsibility of the
Province as enshrined in the
Constitution. It is' stated in the rejoinder
filed in the High Court that Government
of PPP entered into accord with' MQM
accommodating its members in the Sindh
Cabinet. Due to certain reasons there was
unilateral break-up of the accord by
MQM which had withdrawn support
from the Government. The Provincial
Government was doing its level best to
deal with law and order situation as
required under the Constitution and
provisions of relevant laws. On this
subject, there were several meetings
between the Federal Government and the
Provincial Government of Sindh and
552
exchange of letters took place between
President, Prime Minister and the
Governor of Sindh. In fact joint efforts
were made sincerely to deal with the
situation of law and order in Sindh to
find a permanent solution. It is submitted
on behalf of the petitioner that Federal
Government and Government of Sindh
wanted assistance of the army to the
limited extent of aiding the civilian
government as contemplated under the
provisions of Criminal Procedure Code
but for some reason could not succeed in
carrying out amendment in section 138-
A of Criminal Procedure Code. One
suggestion from the Provincial
Government was that unlicensed arms
should be recovered from people without
any discrimination. Then unpleasant
incident took place in Hyderabad on 26th
and 27th May, 1990 in Pacca Qila. There
553
 were so many casualties in the firing.
President wrote a letter on 28th May,
1990 addressed to the Prime Minister,
asking her to appoint judicial enquiry
Commission to fix the responsibility for
the events that took place in Hyderabad
expressing his opinion in favour of use
of armed forces in aid of civil power as
contemplated under Article 245 of the
Constitution."

Relevant Para from the judgment of this

Court in Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416) is also
reproduced hereinbelow: --

"54. The law and order situation in

Karachi and other parts of Sindh should
not have been allowed to deteriorate and
554
get out of control. The custodial killings
are to be explained satisfactorily as is
required under the law. The killings in
encounters with police are to be
explained in proper manner and the
Court has to give finding whether they
were justified or not. There is absolutely
no explanation available or produced on
the record as to how the persons taken in
custody and some of them in handcuffs
while leading the Police party/Law
Enforcing Agencies for making
recoveries, were allowed to be killed by
some unknown persons who did not want
recoveries to be made. If a person is
taken into custody then he is bound to be
dealt with strictly according to law and is
to be punished only when the case is
proved against him. He cannot be
allowed to be killed by any person while
he is in custody. If this is done then it
555
 clearly shows that there is no writ of law
but law of jungle. This shows
inefficiency which tantamounts to total
failure of the Constitutional machinery.
If both the Provincial Government and
the Federal, Government jointly dealing
with such situation fail then it can be said
that the ground is available to the
President to come to the conclusion that
a situation has arisen in which the
Government of the Federation cannot be
run in accordance with the provisions of
the Constitution and the Constitutional
machinery has failed.

60. It would not be out of context to note

that Mr. Pirzada learned ASC had submitted
that the Chief Executive was ready to take
the following measures in future to maintain
law and order situation in Karachi. The
556
statement so filed is reproduced hereinbelow
in verbatim:-

STATEMENT ON BEHALF OF
COUNSEL FOR
THE PROVINCE OF SINDH

In pursuance of the proceedings before, and

the order of this Hon'ble Court in the above
matter dated 30-8-2011, the undersigned
counsel for the Province of Sindh has met
the Chief Minister, Sindh 'and as a result
thereof, he has been instructed and requested
to make the following/submissions.

1. The Chief Minister, Sindh has

expressed his resolve and determination
to deal with and handle the present
557
 criminal and crime situation in the city of
Karachi (the subject matter of the above
proceedings) without any discrimination
whatsoever, irrespective of any party
affiliations, that the criminals may or
claim to have and that every effort will
be made to deal with and control the
situation by all necessary action within
the framework and letter and spirit of the
Constitution the law.

2. The Chief Minister firmly believes

that his Government and the law
enforcement agencies and
instrumentalities available to him are
competent in this behalf and that there
shall be no lack of will to act on their
part.

558
3. Without prejudice to the generality of
the above submission, the Chief
Minister, respectfully wants to convey to
this Hon'ble Court, the specific actions
that he proposes to take in this behalf:

a. For the purpose of prevention and

control of crime, steps are underway
to increase the strength of the police
force and supplement and buttress the
same by the Rangers. It may be
pointed that deployment of Rangers
(which are absolutely necessary and
vital to work in coordination and
cooperation with the Police and are
10,000 in numbers in the city of
Karachi) impose a bearable burden of
less than Rs.400,000,000 (Rupees
Four Hundred Million) per year, in
juxtaposition to the benefits flowing
559
 from their proper utilization. The
burden of their salaries and
emoluments is and continues to be
borne by the Federal Government and
not the Provincial Government.

b. 1000 additional Police force has

been transferred from the interior of
Sindh to perform duties in the city of
Karachi. The large number of the
Police force available in Karachi,
which has not been allocated to crime
control will be reduced beginning
immediately so as to provide
sufficient numbers to crime control. It
may be pointed that at least a half of
the number reserved for special
duties as disclosed by the Inspector
General Police, Sindh, is either
assigned to traffic control or security
560
 to VIP's and also non-governmental
private parties and institutions.
Notices have already been issued to
these non-governmental and private
organizations, that the force allocated
to them is to be withdrawn and they
have been advised to make private
arrangements for their security. In the
next immediate step, the force
assigned to VIP's will be reduced,
wherever possible in consonance with
and without jeopardizing the
requirement of their security.

c. Lastly, a 5000 strong contingent

Police force, is being recruited, which
will be trained and fully capable of
performing their duties within the
next 12 months. These recruits will
receive special and sophisticated
561
 training at 9 Police training centers in
the Province.

d. Closed Circuit Televisions

(CCTV's) and cameras are being
installed at 900 different locations in
the city, which shall monitor, record
and report commission of crimes. As
stated in the power point presentation
(from pages 48 onwards), new and
effective APC's have been ordered,
which will augment and enable easier
penetration by the law enforcement
agencies into the crime areas. As
stated on page 48, a new motorcycle
force named `Eagle Force' has
already been introduced and is
functional.

562
e. 20 mobile forensic laboratories
are being acquired, which shall be
manned by extensively trained
personnel, with the assistance of
friendly countries with advanced
technology and expertise.

f. The next important aspect in the

maintenance of law and order is an
effective, meaningful and productive
investigation for the purpose of
apprehension of real culprits,
sophisticated and proper collection of
evidence, eye-witnesses and
compilation of record, so as to enable
the Prosecutors to go with confidence
and secure convictions of the guilty.
The Police Act 1861 has already been
brought into force and solid
investigation can be achieved through
563
 suitable amendments in the law. In
this behalf, desired results can be
achieved by strengthening the
prosecution agencies and institutions.
It may be necessary to bring suitable
amendments in the existing laws,
which may inter alia, provide for
safety and security of witnesses and
maintenance of full record and date
of habitual offenders, so as to make it
difficult for them to be released on
bail as a matter of course.

g. As far as the question of

aliens/noncitizens living in Karachi
and estimated to be 2,500,000, this
matter relates to a considerable extent
to the Federal Government and the
Counsel representing it shall have
better locus standi to address this
564
 Hon'ble Court.

4. That these proceedings have been

initiated Suo Motu by this Hon'ble Court,
pro bono publico and are not adversarial
and therefore, the submissions on behalf
of the Province of Sindh have been made
in that context. This Hon'ble Court has
also made observation to the same effect.
Therefore, the right of rebuttal, of the
Province of Sindh, is not waived if others
parties, who have brought in their
petitions or have joined these
proceedings make any submissions,
which are required to be answered
rebutted and controverted."

But subsequently, he waived his right of

rebuttal.
565
61. Some of the above commitments have
already been reiterated by the IGP Sindh in
his presentation, summary whereof has been
reproduced hereinabove. Similarly, as it has
been pointed out in the report submitted by
the Chief Secretary Sindh dated 26-8-2011
that after large scale bloodshed in Karachi,
now the Administration has realized the
gravity of the situation and has conferred
powers upon the Pakistan Rangers vide
notification dated 8-7-2011, which reads as
under:--

"No. SO(LE-I)/H D/6-66

GOVERNMENT OF SINDH
HOME DEPARTMENT
Karachi dated July 08, 2011

566
 NOTIFICATION

SUBJECT: PAKISTAN RANGERS

(SINDH) EMPLOYMENT IN THE
MAINTENANCE OF LAW AND
ORDER IN KARACHI,

In the wake of recent incidents of

terrorism/target killings in certain parts
of Karachi, Government of Sindh, in
exercise of the powers invested under
section 10 of the Pakistan Rangers
Ordinance, 1959, read with section 5 of
the [Anti-Terrorism Act, 1997], hereby
make responsible Pakistan Rangers
(Sindh) for the maintenance of law and
order and to apprehend the criminal
elements involved in firing and killing of
567
 innocent citizens in various areas and
zones of the city (where situation
warrants employment of Sindh Rangers).
Pakistan Rangers (Sindh) are hereby
authorized by the Government of Sindh
to cordon, search and use force in
controlling firing by the criminals in
affected areas CCPO Karachi will extend
all possible support to Pakistan Rangers
(Sindh) in restoring law and order
situation in any part of the city.

ADDITIONAL CHIEF SECRETARY

HOME DEPARTMENT"

The contents of the report of the Chief

Secretary, particularly Paras 7 & 8 thereof,

568
being an eye-opener, have already been
reproduced hereinabove.

62. Similarly, IG Police in addition to other

explanations, referred to the demography of
the city and admitted extortion of money
(bhatta) being collected from the traders.

63. Mr. Farogh Naseem, learned ASC

appearing on behalf of MQM in C.M.A.
No.565-K of 2011, pointed out that to
prevent extortion of money (bhatta) the
Provincial Assembly had already
promulgated the Eradication and Curbing
the Menace of Involuntary Donation or
Forced Chanda Act, 2004 [hereinafter
referred to as "the Act, 2004"]. However, it
seems that this legal instrument has not been
applied strictly whereas other learned
569
counsel. for interveners are of the opinion
that criminals involved in collection of
bhatta are so desperate that no one - be a
trader or anyone else - being fearful is
interested to expose himself to the wrath of
the criminals, rather they feel safety in
paying bhatta; besides they are equally
hesitant to come forward because of
problems and difficulties in perusing cases
and also have no trust and faith in the police.
As far as the law which has been referred to
by the learned counsel, cognizance of an
offence under the said Act is to be taken on
submission of complaint in writing by a
donor within 30 days of the commission of
the offence before the Judicial Magistrate
having territorial jurisdiction. The victims,
instead of going by the letter of the law
whereunder they have to become
complainants and challenge the criminals,
reportedly always armed with lethal
570
weapons, prefer to make payment of bhatta.
This thing can only be reversed if the trust
of the citizens is restored, which of course is
not possible until and unless a neutral and a
depoliticized administration as well as
honest and dedicated law enforcing
agencies, especially police are there to
protect the victims of crimes. It seems that
this law was promulgated for eradication
and curbing the menace of extortion of
money in the shape of forced donations
(chanda). The word "chanda" has not been
defined, but the definition clause of section
2 contains the word "Fund" which includes
donation or contribution in the shape of
money or kind. Thus, taking advantage of
this provision, it was argued before us that
there have been complaints that in the name
of payment of fitrana, which is to be paid as
sadqa by all the Muslims at the end of
Ramadan on the eve of Eid-ul-fitr,
571
exorbitant amounts have been forcibly,
recovered instead of allowing Muslims to
pay the same voluntarily to the deserving
people as per Injunctions of Islam. The
culprits in an organized manner receive
fitrana and in some of the cases ten times of
the original amount has been demanded.
Although no documents are available on
record in this behalf, but these things have
been pointed out during the arguments by
the learned counsel appearing for the
interveners who have spoken before the
Court vocally. Similarly, it has been
informed that as far as the word `kind'
mentioned in the definition of "fund is
concerned, it relates to recovery of hadia
(donation), skins of animals (khall) and
other body parts of animals on the occasion
of Eid-ul-Azha, however, the representatives
of so called welfare organizations working
under the flags of their respective political
572
parties used to bind down the people to hand
over the same to them, else to face the
consequences, but according to the learned
counsel for the interveners, this law has also
not worked effectively and the practice of
forcible recovery of the above items, i.e.
skins, etc., has been going on.

64. It may be noted that as far as offence of

extortion of money is concerned, which can
also be considered as bhatta, it is covered by
sections 386 to 388 of the Pakistan Penal
Code and also falls within the definition of
terrorism given in section 6(1)(k) of the
Anti-terrorism Act, 1997. Undoubtedly,
sufficient legal framework as discussed
hereinabove is available on the statute book,
but the same is lying dormant because of its
non-application as people do not have trust
in the law enforcing agencies to counter the
573
deadly and influential persons who happen
to terrorize the innocent citizenry and due to
this reason no one comes forward. It is
common knowledge that mafias i.e. groups
of criminals involved in the commission of
heinous crimes, such as recovery of bhatta,
extortion of money, business of illegal
weapons; narcotics, drugs, land grabbing,
etc., had been working in other countries as
well in a highly organized manner.
Reference in this behalf may be made to the
Sicilian and American Cosa Nostra, an
Italian group also working in New York, but
in those countries the crime was controlled
by promulgating and implementing stringent
laws, which we also have in our jurisdiction,
namely, Anti-Terrorism Act, 1997,
therefore, we can also control the same by
applying such laws strictly. In USA, to
control such underworld mafias, the State
authorized through the courts seizure of
574
properties of such like persons, if it was
established that they had acquired such
properties out of income .from the proceeds
of heinous crimes. In this behalf, reference
may be made to the case of Bracy v.
Gramley, Warden, [520 U.S. 899 (1997)],
wherein the Supreme Court of United States
did not show any concession to the culprits.
There are so many other judgments,
reference of which may not be necessary at
this stage, where the Governments had
succeeded to control the mafias after
applying stringent measures.

65. The history of Karachi, which has been

narrated hereinabove, indicates that from
1985 onwards, the rate of crime as well as
the situation of law and order have been
increasing with the passage of time. Syed
Iqbal Haider, Sr. ASC in C.M.A. No.544-K
575
of 2011, has pointed out that General Zia-ul-
Haq, with an intension to further divide and
de-politicize the people, created three
militant groups and fully armed ethnic
parties, i.e. Muhajir Qaumi Movement (Now
Mutahida Qaumi Movement), Punjabi
Pukhtoon Itehad (PPI) and Jiye Sindh (JS),
and ethnic warfare started from the tragic
road accident death of a student named
Bushra Zaidi in April, 1985, followed by
numerous incidents of bloody clashes
between the three ethnic parties resulting in
innumerable deaths of innocent citizens,
destruction of public and private property
and injuries to thousands of persons,
particularly in Karachi and Hyderabad.
Curfews, hartaals (strikes) and close downs
of routine activities of the citizens became a
norm in Karachi. He further stated that from
1980 onwards, six Judicial Commissions
headed by Judges of High Court of Sindh
576
were constituted, but reports of none of
those Commissions were made public nor
their recommendations were ever
implemented, perhaps to protect the real
culprits responsible for such bloody
incidents. Inasmuch as, former Prime
Minister Mohtarma Benazir Bhutto had
constituted a most powerful independent
Judicial Commission headed by the. then
Chief Justice of Pakistan, Mr. Justice
Muhammad Afzal Zullah and comprising
the Chief Justices of all the four High Courts
to investigate into the unfortunate incident
of Pakka Qila, Hyderabad on or about 17-5-
1990, but according to 'him, after
unconstitutional dissolution of the
Government of Mohtarma Benazir Bhutto,
during the days of new Caretaker
Government with heavy representation of
MQM both at Federal and Provincial levels,
it decided to dissolve the said Judicial
577
Commission. He handed over the
implementation report of one of such
Commissions headed by the Chief Secretary,
Sindh constituted in 1985-86 after the
incident of Bushra Zaidi. We inquired from
the learned Advocate General as to whether
any other Commission's report was available
and whether the same had been made public
or not, he stated that as per instructions, no
Commission report is available in the
relevant department. From the facts and
circumstances narrated by the learned
counsel, it seems that in the past as well, the
city of Karachi had been facing the same
problem with which it is confronted today in
more aggravated form, but unfortunately, no
plausible solution to maintain law and order
and restore peace in Karachi was adopted.
Inasmuch as, sometimes, there had been
military operations followed by operations
by the Task Forces constituted by Mohtarma
578
Benazir Bhutto during her regime
commencing from 1993 onwards, but
without any final permanent solution of the
problem. We tried our level best to trace out
the reasons as to why democratic as well as
non-democratic Governments failed to bring
normalcy in Karachi, but nobody came
forward with a convincing answer except
that identical international solutions, which
other Governments like in Italy, America,
India, etc., had adopted are available to the
State machinery in Pakistan, but no one had
dared or shown any will to resolve the issue
of disturbances in Karachi. Although,
Karachi is a city presently accommodating
about 18 million people belonging to
different communities, as per the history of
Karachi who had come from India,
Afghanistan and all over Pakistan and had
settled permanently over there making it a
cosmopolitan city, which houses Pakistanis
579
as well as a large number of foreigners,
about 2.5 million in number, who are also
there without any check and their
involvement in troublemaking can also not
be overruled. But the question remains as to
why law enforcing agencies have not, to say
the least, checked these illegal immigrants
and have not managed to deport them to the
countries of their origin. The DG Rangers,
who operates in the disturbed areas,
appeared in person and pointed out in his
briefing to the Court that the political forces
of the city had been made hostage by the
militant groups of political parties; Karachi
was a mega city, but unfortunately an unjust
infrastructure divided it into various parts on
ethnic and political lines; the city was in the
grip of polarization on account of which
even the health sector was divided on
ethnic/parochial basis, so much so that a
patient or an injured person belonging to one
580
community is refused admission for medical
treatment in a hospital under the control of
the rival group; and the situation in Karachi
was worse than that prevailing in North
Waziristan. The statement of DG Rangers
has undoubtedly made important evaluation
during his briefing, besides, in the reports
available on record and from other credible
sources, the situation in Karachi seems to be
terrible and needs urgent attention of the
Federal and the Provincial Government to
handle the same through independent
Administration to save the economic, social
and political future of Pakistan, which, inter
alia, depends upon peaceful life in Karachi.

66. Mr. Rasool Baksh Palijo, ASC appearing

on behalf of Awami Tehrik Party in C.M.A.
No.552-K of 2011, in loud and clear words,
held MQM responsible alone, for the
581
situation prevailing in the country. He stated
that over the last about 20 to 30 years
thousands of criminals were not challaned
and not a single person was awarded
punishment. According to him, unless a ban
is imposed upon the militant outfits of the
political parties, peace and normalcy would
not be brought to Karachi. Therefore, he
emphasized that culprits should be brought
to book and severe punishments should be
awarded to them, which may serve
deterrence for like minded persons. In this
context, Syed Iqbal Haider, Sr. ASC
agreeing with him suggested that a powerful
truth finding commission is required to be
constituted to decide, once for all, as to who
is responsible for destroying peace in
Karachi, whereas, Syed Iftikhar Hussain
Gillani Sr. ASC was of the opinion that
instant matter may not be disposed of
finally, and an affective interim order may
582
be passed, as this Court had done in the
Petitions' challenging the validity of the 18th
Constitutional Amendment, enabling this
Court to supervise the affairs relating to law
and order situation in Karachi.

67. Mr. Abdul Mujeeb Pirzada, Sr. ASC

appearing on behalf of Sindh Bachayo
Committee in C.M.A. No.531-K of 2011,
after having narrated the facts and
circumstances of the case also insisted for
directions to the Government of Sindh to
initiate the process of deweaponization and
for the assistance of Administration the
military be also allowed to be called in terms
of Article 245 of the Constitution because in
the past as well, the Administration has been
calling in aid the Armed Forces in critical
situations like during the earthquake of 2005
and floods in different parts of the country in
583
2010, and also get implemented the orders
passed by this Court by invoking Article
190, which according to Syed Iftikhar
Hussain Gillani, Sr. ASC is an enabling
provision on the basis of which the Court
can issue directions to all executive
authorities to come forward to provide aid to
it in implementation of its orders, and undue
objections are being raised to invoking of
the provisions of Article 190. According to
them, Article 190 is like all other provisions
of the Constitution, e.g., Article 187, etc.,
therefore, adhering to any provision of the
Constitution will be tantamount to
strengthening the institutions for the purpose
of achieving good governance, welfare,
peace and tranquility in the society. They
have emphasized that no provision of the
Constitution can be made ineffective, rather
each provision has to be applied when the
need arises. It is to be noted that as per the
584
scheme of the Constitution, different
institutions are required to fulfil their
commitment because our Constitution is
based on the principle of trichotomy of
powers he. Legislature, which is responsible
to legislate the laws, Executive/Government
headed by the Prime Minister in the
Federation and the Chief Ministers in the
Provinces to fulfil their duties, and the
Judiciary, which has to interpret the
Constitution and the law. Violation of
constitutional provisions by any of the
organs/functionaries of the State is .not
permitted by law as held in the case of Sindh
High Court Bar Association v. Federation of
Pakistan (PLD 2009 SC 876) wherein all the
actions of the then Chief of Army Staff
General Parvez Musharraf dated 3-11-2007,
viz., Proclamation of Emergency, PCO No.
1 of 2007, Judges 'Oath Order, 2007, etc.
were declared to be unconstitutional, illegal,
585
mala fide and void ab initio. As a result,
whatever was done extra-constitutionally
was struck down. As far as the present
democratic Government is concerned, it too
cannot be allowed to go beyond the
Constitutional provisions or allowed to fail
in its implementation, particularly with
regard to enforcement of Fundamental
Rights. There are no two opinions that as far
as Fundamental Rights/civil rights of the
citizens are concerned, those are to be
enforced by the Executive and if it fails to
do so, they have to face the consequences
envisaged by the Constitution. The
Executive functionaries who have also taken
oaths both in the Province and Federation to
protect and preserve the Constitution cannot
be allowed to defeat any provision of the
Constitution, whatever the circumstances
may be. At this juncture, reference to Article
5 of the Constitution is relevant and
586
appropriate, which commands that loyalty to
State is the basic duty of every citizen and
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.
Thus, the Executive/public functionaries are
bound to enforce the Constitution while
protecting the Fundamental Rights of the
citizens without any fear or favour or
compromise for subjective purpose.
Reference in this behalf may be made to the
cases of Abdul Majeed Zafar v. Governor of
Punjab (2007 SCMR 330) and Ch. Zahur
Ilahi v. Zulfiqar Ali Bhutto (PLD 1975 SC
383). In the last mentioned judgment, the
question before the Court was with regard to
initiating proceedings of contempt of Court
against the then Prime Minister, Zulfiqar Ali
Bhutto, vis-a-vis the position of such office
holder as well as the immunity under Article
587
248 of the Constitution, when this Court
held that even a Prime Minister is, under
clause (2) of Article 5 of the Constitution,
bound to obey the Constitution and law as
that is the basic obligation of every citizen..
Whereas, in the' instant proceedings without
claiming any immunity whatsoever, the
Prime Minister as well as the Chief Minister
both are bound to follow the Constitution
under Article 5(2) by ensuring security and
safety of persons and property of the
citizens. An argument could be raised that
since the responsibility for incidents of
violence, commission of crimes, bloodshed
and looting occurring in the society lies on
criminals, who arE to be held responsible
and punished by the Courts of law, as such,
in the instant case as well, the, law
enforcing agencies are performing their
duties causing arrests of the accused persons
to be put on trial in accordance with law. In
588
our considered opinion, a line of distinction
has to be drawn in the cases where there is
insurgency in any part of the country and
commission of crimes by the individuals for
their personal enmities and other motives,
and commission of crimes in the shape of a
turf war by various groups allegedly having
support of political parties to secure their
vested interests, vis-a-vis unlawful gains.
Such groups represent the
organizations/gangs of criminals, drug
mafias, land grabbers, etc., who operate
against each other to have control over
different areas of the city, considering
themselves as warlords and obstruct entry of
rival groups in each other's area.

68. At this stage, reference to the application

of Mr. Javed Ahmed Chhatari Advocate,
appearing in person in C.M.A. No.558-K of
589
2011 may be made with which he has
appended a coloured copy of the map to
highlight the respective areas under the
control of Pashtuns and Urdu speaking
communities, divided by a hill. Allegedly,
the Pashtuns are inhabitants on the upper
side of the hill whereas the Urdu speaking
people and other communities are living
across and in the bottom of the same, 'and
whenever a dispute arises, according to Mr.
Chhattari, the Pashtuns take benefit of their
location on the high side of the hill and
manage to kill Muhajirs (Urdu speaking).
He has also submitted a list of police
stations, 112 in number, along with details
of different communities living in their
respective jurisdictions. For convenience,
the same is reproduced herein below:--

S. Name of Nature of Population

590
No. Police Station
1. 1. Peerabad 2. Pukhtoon Majority
Manghopir 3. Police Stations
Mochko 4.
Mominabad 5.
Site Section A
6. Site Section
B 7. Baldia
Town 8.
Saeedabad 9.
Sohrab Goth
10. Gulzar-e-
Hijri 11.
Qaidabad 12.
Sohrab Goth
13. Bilal
Colony
6. 1. Mattajir Majority Police
Bahadurabad Stations
2. Nazimabad
3. Rizvia 4.
591
Gulbahar 5.
Super Market
6. Liaquatabad
7. Sharifabad
8. Gulberg 9.
Yousuf Plaza
10. Azizabad
11. Joharabad
12.
Samanabad
13. New
Karachi 14.
Sir Syed Town
15. Preedy 16.
Orangi Town
17. Pakistan
Bazar 18.
Landi 19.
Korangi 20.
Zaman Town
21. Saudabad
592
 22. Orangi
Ext. 23. Shah
Faisal
3. 1. Chakiwara Baloch and Sindhi
2. Bagdadi 3. Majority Police Stations
Kala Kot 4.
Eid Gah 5.
TPX 6.
Gaddap Town
7. Ibrahim
Haidry 8.
Malir City ' 9.
Memon Goth
10. Bin Qasim
11. Docks 12.
Kalri 13.
Malir Cantt.
14. Nepare 15.
Sharafi Goth
4. 1. Mari Pur 2. Mix Community
Jackson 3. Populated Area Police
593
Surjani Town Stations
4. Gulshan-e-
Igbal 5.
Gulistan-e-
Johar 6. Shar-
e-Faisal 7.
Shar-e-
Noorjehan 8.
Sher Shah 9.
Sharfi Goth
10.
Mehmoodabad
11. Baloch
Colony 12.
Ferozabad 13.
Defence 14.
Clifton 15.
Gizri 16. Boat
Basin 17.
Artillery
Maidan 18.
594
Sadar 19. Air
Port 20. Civil
Line 21.
Darakshan 22.
Frere 23.
Gulzar-e-Hijri
24. Garden 25.
Jamshed
Quarter 26.
Kharadar 27.
Methdar 28.
Korangi I.
Area 29.
Khokra Par
30. Khawaja
A Nagri 31.
Model Colony
32. Nabi Bux
33. New Town
34. New
Karachi I Area
595
 35. Risala 36.
Soldier Bazar
37. Sukhan 38.
Steel Town
39. Sachal 40.
Tepu Sultan
41. Gulshan-e-
Maymar

Thus, according to Mr. Chhattari, the

dispute is not confined to individuals, but
mostly extends to three communities i.e.
Muhajirs, who normally speak Urdu,
Pashtuns and Balochs, all of whom try to
achieve their nefarious objects by
committing murders by way of vengeance
and as a matter of tit for tat. The Pakistan
People's Party Parliamentarians (PPPP)
being the majority party in the Provincial
Assembly of Sindh is the leading
596
parliamentary party, whereas the MQM is
the next majority party in the said Assembly.
According to the learned counsel appearing
on behalf of MQM, out of total 42 seats of
MQM in the Provincial Assembly of Sindh,
it has 34 seats from Karachi., and ANP has
only 2 seats, whereas PPPP alone has 93
seats, which even otherwise is sufficient to
form government in the Province. However,
according to him, for the reasons best known
to the political groups or their leaders, a
coalition government has been formed.

69. Dr. Farogh Naseem, ASC has filed an

application on behalf of MQM, contents
whereof are reproduced hereinbelow:--

"14. The applicant supports an action

against all the criminal elements across
597
the board without any fear, favour or
affiliation. The applicant shuns any form
of terrorism and intolerance and requests
this Hon'ble Court to pass corrective
orders and some suggestions in this
regard are stated below in the prayer
clause, while some will be furnished at
the time arguments.

17. The land, arms and drug mafia

predominantly thrive upon unrest in the
city. The failure of law enforcement
agencies is a safe haven for such mafias,
which encroach upon State land and their
whereabouts are not traceable, and,
therefore, it is imperative that proper
survey and investigation is carried out so
as to discover the areas and pockets of
State land which are encroached and the
law enforcement agencies are employed
598
 to evict them from such State land,
whereafter the perpetrators are
prosecuted."

When we inquired from him as to why

precautionary measures were not taken by
the party being represented by him to
control the law and order situation, he
invited our attention towards Para No.7 of
his CMA. It is important to note that one of
the most important statements of fact has
been made on behalf of MQM in Para No.14
above, and at the same time he has orally
stated that in view of the circumstances
prevailing in Karachi, he concedes that the
Government has failed to enforce
Fundamental Rights of the citizens. In
respect of presence of land and drug mafia,
an explicit offer has' been made in Para No.
17 reproduced above. As far as jurisdiction
599
of this Court under Article 184(3) ,is
concerned, he has conceded that because the
instant proceedings are inquisitorial,
therefore, in view of the judgments in the
cases of Benazir Bhutto v. Federation of
Pakistan (PLD 1988 SC 416), Darshan
Masih v. the State (PLD 1990 SC 513), S.P.
Gupta v. President of India (AIR 1982 SC
149) and People's Union for Democratic
Rights (AIR 1982 SC 1473), this Court, in
the interest of public, has jurisdiction to
adjudicate upon such a matter. He further
argued that unless de-politicization of the
law enforcing' agencies takes place and
neutral investigation bodies are constituted
for the purpose of conducting transparent
proceedings following the due process of
law as contemplated under Article 10A of
the Constitution and to supervise such
independent bodies, unless a Judge of the
High Court is appointed to monitor the
600
proceedings of each case, it would neither be
possible to bring the culprits to book
involved in the commission of crimes nor
justice would be done. In this very context,
he has also relied upon Vineet Narain v.
Union of India [(1996) 2 SCC 199], State of
Bihar v. Ranchi Zila Samta Party [(1996) 3
SCC 682], Anukul Chandra Pradhan v.
Union of India [(1996) 6 SCC 354], Union
of India v. Sushil Kumar Modi [(1996) 6
SCC 500], Union of India v. Sushil Kumar
Modi [(1997) 4 SCC 770], Dinesh Trivedi,
M.P. v. Union °India [(1997) 4 SCC 306],
and Khan Asfand Yar Wali v. Federation of
Pakistan (PLD 2001 SC 607). Learned
counsel, instead of defending the situation
prevailing in the city, has made two very
important admissions on behalf of MQM,
which are evident from the contents of the
application reproduced hereinabove.

601
70. The third most important admission
from the coalition partner of the
Government is that it has failed to enforce
the Fundamental Rights of the citizens and
suggested that it be held that under no
political expediency or consideration, the
Provincial or Federal Government should
allow bloodshed, arson,
kidnapping/abduction for ransom,
widespread violence, illegal collection of
money (bhatta) from traders, etc., to
continue in violation of Articles 9, 14, 15,
18 and 24 of the Constitution or to
encourage the land grabbers, drug mafias
and gangs of organized criminals who are
brutally committing murders by cutting
necks and limbs of innocent people and
throwing their torsos in the streets. Even if
there is any expediency, it cannot be allowed
to prevail at any cost, whatsoever the
consideration may be, is the most important
602
admission. Besides, it has been pointed out
that except learned counsel appearing for the
Government i.e. M/s Abdul Hafeez Pirzada
and Babar Awan, learned Sr. ASCs, all the
learned counsel for the
applicants/interveners, loudly and clearly,
with logical reason based on facts, have
conceded that the Government has failed to
combat and eradicate crimes and to protect
Fundamental Rights of the citizens. The
nature of the crimes and the horrible acts
being shown on DVDs of a torture cell
detected by the Rangers in the area of Lyari,
as per statement of IGP are hair-raising
wherein the criminals are shown cutting
throats of persons with blunt knives and
committing sodomy. Obviously, this all
shows that the Executive/Provincial
Government has not dealt with the criminals
with an iron hand. Had the Government
done so, innocent persons would not have
603
been deprived of their lives, liberties and
properties and their dignity would have been
saved. It has been mentioned time and again
that allowing such incidents without any
resistance for the last so many years, and
more particularly in the recent months of
July and August, 2011, relevant details
whereof have been obtained, is beyond
comprehension. We may observe here that it
is not the question who succeeds in forming
the government both in the Centre and the
Province, but here the question is of
defending the Fundamental Rights of the
citizens. The Executive Authorities cannot
be allowed to be negligent to an extent
where ultimately the sovereignty and
integrity of the country is jeopardized.
Availability of heavy and light arms and
ammunition, such as pistols, revolvers,
rocket launchers, MG, LMGs, etc., in fact,
has turned Karachi into a volcano, which
604
can erupt at any moment, and then it would
not be possible for the Executive to control
the same. There are voices from different
quarters, including the learned counsel
appearing for the interveners that the
Government should have initiated action for
de-weaponization. In this behalf, Mr. Farogh
Naseem, ASC has stated that a private Bill,
namely, the Deweaponization of Pakistan
Bill, 2011 has been moved by the MQM in
the National Assembly, which is still
pending with the Assembly.

71. Dr. Babar Awan, learned counsel for the

Federation and learned Advocate General,
Sindh were called upon to explain as to how
many licenses of prohibited and non-
prohibited weapons have been issued by the
Federal and the Provincial Government of
Sindh during the last five years. Both of
605
them filed the reports indicating that 180956
licences of non-prohibited bore were issued
by the Home Department, Government of
Sindh whereas 46114 licenses of prohibited
bore and 1,202,470 licenses of non-
prohibited bore were issued by the Ministry
of Interior, Government of Pakistan. It is to
be noted that usually crimes are not
committed with licenced weapons as the
criminal perpetrators use unlicenced
weapons for the same.

72. As it has been pointed out hereinabove

that in the past in an identical situation, the
constitutionally elected President of Pakistan
had dismissed the Governments and such
orders were maintained up to the Supreme
Court, reference of which has already been
made hereinabove. It is important to
mention at this stage that whosoever is
606
ruling the country under the Constitution, he
being the Leader of the House, is bound to
know the constitutional commitments and
provisions of law c because of the fact that
he or they have taken oath(s) to preserve,
protect c and defend the Constitution,
including Fundamental Rights as well as to
show obedience to the Constitution and law
under Article 5(2) notwithstanding their
holding of any high office, as held in Zuhor
Ilahi's case (ibid).

73. We may reiterate here that now it is not

possible under the Constitution and law for
the Armed Forces to dismiss the
Government by adopting extra-
constitutional measures, detailed reference
in this behalf, if required, can be made to the
only judgment of this Court in Sindh High
Court Bar Association's case (ibid), but at
607
the same time the chosen representatives
also owe a duty to the Constitution and if
they feel that on account of any political
expediency they can allow the continuance
of the present position of law and order in
the Province, it will be at their own risk and
cost, otherwise under the Constitution they
are bound to secure lives and properties,
ensuring the proprietary rights, freedom of
movement, etc., and failing which
constitutionally such government is likely to
lose their right of ruling.

74. Ms. Asma Jehangir Advocate, in her

statement, on the basis of report of Special
Branch of Sindh Police, 'wherein names of
persons belonging to different political
parties including PPPP, MQM, etc. involved
in the collection of bhatta have been
mentioned showed her concern and stated
608
that it is an eye opener for the Government
and despite such information, no action has
been taken by the police. We have no reason
to differ with her, and we are constrained to
hold for this reason as well that
unwillingness of the police force to combat
crime could be one of the reasons on
account of which criminals are let loose in
the society and encouraged to commit
crimes.

75. According to the assertion of Ms. Asma

Jehangir Advocate, the law enforcing
agencies have shown slackness in initiating
action for extending powers to the Rangers
and others, which, according to her, is
evident from the parawise comments filed
by the Chief Secretary. We have already
discussed this aspect of the matter; however,
we would share the concerns expressed by
609
her. Actually, as it has been pointed out
hereinabove, the situation could have been
controlled conveniently, if the police had
taken prompt action with full commitment,
but in view of the` statement of IGP that 30
to 40 percent police officials are not
cooperating for the reasons already noted
hereinabove, and no expectation could be
made from then:, unless the whole police is
de-politicized by transferring the police
officers of the rank of DSP and above to
their parent departments, and by
discontinuing the practice of allowing
retired officers to join police on contract
basis or bringing persons from other
departments in the police department is
discarded. In fact, by way of passing
remarks, it may be observed that apart from
the police department, the situation perhaps
is worse in other departments as well,
because appointments on the basis of
610
unauthorized absorptions of different
officers in the provincial and district
Administration were made by the
Government and a Division Bench of Sindh
High Court in Constitution Petition No.932-
D of 2009 set aside such appointments by
way of cancelling the orders of such
'appointments. The persons who were
aggrieved by the decision of the High Court
preferred petitions for leave to appeal, which
were converted into Civil Appeals 404-406.
of 2011 etc. But, in the meanwhile, Sindh
Assembly passed the Sindh Civil Servants
(Regularization of Absorption) Act, 2011
whereby the transfers/absorptions on
permanent basis of such officers against
regular posts were declared regular
notwithstanding any judgment of any Court,
as a result whereof the appeals so filed were
withdrawn and stood disposed of vide order
dated 16-6-2011.
611
76. Mr. Muhammad Aqil, President of
Karachi Bar Association, Mr. Iftikhar Javed
Qazi, Vice Chairman, Sindh Bar Council
and Syed Haider Imam Rizvi, General
Secretary, Karachi Bar Association appeared
in C.M.A. No.532-K of 2011 . a n d stated
that about 19 Advocates have also been
brutally murdered by criminals and so far no
action has been taken by the law enforcing
agencies. Their arguments were augmented
by Mr. Faisal Kamal, learned ASC who has
filed an application on behalf of the
PML(N), and according to him, two
Advocates who were supporters of PML(N)
were also murdered. It is to be noted that as
per information supplied, following
Advocates so far have been killed in
different incidents, during the last few
years:-

612
1. Mr. Sardar Zulfiqar

2. Mr. Muhammad Hanif Khan

3. Mr. Altaf Hussain

4. Mr. Liaqat Qureshi

5. Mr. Nazar Abbas

6. Mr. Muhammad Kamal

7. Mr. S. M. Zia Alam

613
8. Syed Mukhtar Abbas Bukhari

9. Mr. Muhammad Junaid

10. Mr. Fahim Riaz Siddiqui

11. Mr. Muhammad Saleem Bhatti

12. Mr. Muhammad Murtaza Chinnoy

13. Mr. Nazeer Ahmed Khuhawar

14. Mr. Ali Muhammad Dahiri

15. Mr. Muhammad Aslam Burioro

614
77. It is pertinent to mention here that in
some of the cases, F.I.Rs. have been
registered, but the accused persons have
remained untraced. We agree with the
learned counsel that if the lives of
Advocates are not safe at the hands of the
culprits, a set back is likely to be caused to
the profession of law, which is an important
tool in the system of administration of
justice. However, the learned Advocate
General assured that the matter will be
looked into and all efforts will be made to
bring the culprits to justice. He has also
stated that the Government of Sindh has
agreed to pay compensation of Rs.5,00,000/-
and one plot to the families/legal heirs of the
deceased Advocates. As far as the payment
of compensation is concerned, according to
him, the claims have already been approved
by the Government of Sindh whereas the
615
process of allotment of plots is in progress.
The learned representatives of the
Advocates, however, requested for
enhancement of compensation as according
to them; such lawyers have also been killed
in the course of performance of their
professional duties and according to the
Government Policy, a sum of Rs.20,00,000/-
is paid to the families of the police
officers/officials who have sacrificed their
lives while combating crimes. We do agree
with the learned counsel for enhancement of
compensation in view of the two judgments,
which have been cited by Mr. Farogh
Naseem, ASC. This Court, in exercise of its
jurisdiction under Article 184(3) of the
Constitution, has also ordered payment of
compensation in the case of Saad Mazhar v.
Capital Development Authority (2005
SCMR 1973) to the residents of Margalla
Towers, which collapsed in the earthquake
616
of September, 2005. However, in the instant
case, this Court perhaps would not be in a
position to issue any direction except
observing that the cases of the Advocates,
belonging to legal fraternity and being one
of the important components of the system
of administration of justice, if they lay their
lives on account of prevailing law and order
situation in the city, without any fault on
their part and also not on account of any
personal enmity, deserve to be dealt with at
par with the police officials who have
sacrificed their lives in combating crime.
The Government of Sindh may consider
change in the Policy for the payment of
compensation and grant of a plot of land to
their families.

78. It may be pointed out that immediately

after the commencement of hearing of the
617
case, one Barrister Murtaza Chinnoy,
Advocate was assassinated in his office. The
office bearers of the Sindh High Court Bar
Association and Karachi Bar Association
pointed out this fact to the Bench, therefore,
the IGP Sindh was directed to take personal
interest in the matter, and later it was
informed that accused persons have been
arrested and prima facie their involvement in
the murder case is on account of dacoity, as
allegedly he was robbed and looted.
Similarly, another Advocate, namely,
Faheem-ul-Karim along with a lady and
another person was killed in a flat and police
was directed to expedite the investigation.
Mr. Tariq Dharejo, SP Clifton submitted a
report to the effect that 'accused persons are
likely to be booked soon in this case as well.
Mr. Faisal Kamal Alam, ASC who appeared
on behalf of PML(N) also expressed his
grievance in respect of killing of workers of
618
the political party being represented by him,
including two Advocates and argued that the
Government had failed to enforce the
Fundamental Rights of the citizens under
Article 9 of the Constitution, which has been
elaborately interpreted by this Court in the
cases of Shehla Zia and Benazir Bhutto
(ibid). His grievance is that although the
F.I.Rs. have been registered, but so far
accused persons have not been arrested. As
far as the enjoyment of the protection of life
and property enshrined in Article 9 of the
Constitution is concerned, there is no cavil
with the proposition as this issue has been
discussed elaborately hereinabove with
reference to the case of Shehla Zia, but so
far as judgment in the case of Benazir
Bhutto, handed down by a 7-Member Bench
of this Court, a Bench larger than the present
Bench hearing the Instant case, wherein
dismissal of Government of Mohtarama
619
Benazir Bhutto and dissolution of
Assemblies was challenged is concerned, it
is to be noted that the president of Pakistan,
in exercise of powers under Article 58(2)(b)
of the Constitution, dissolved her
Government and in his speech .to the
Parliament on 29-10-1995 warned that law
enforcing agencies must ensure that there
would be no harassment of innocent people
in the fight against terrorism and human and
legal rights of persons are to be duly
protected. This advice was not heeded to and
killings continued unabated. The
Government's fundamental duty to maintain
law and order situation has to be performed
by proceeding in accordance with law. In
consequence of this judgment, the
Dissolution Order was maintained by a 7-
Member Bench of this Court. If similar
circumstances prevail today, we would be
bound by that ruling. We may observe here
620
at the cost of repetition that under Article
148(3) of the Constitution, the Federal
Government is bound to assist the Provincial
Government during the period of
disturbances.

79. Ms. Asma Jehangir, President, Supreme

Court Bar Association argued that in view of
the acute law and order situation prevailing
in Karachi, a change in the mindset for
improving the investigation and introducing
the witness protection system is called for.
Her voice has been appreciated by the other
representatives of the Bar Associations,
including Mr. Ashraf Samoa, President
Malir Bar Association who appeared in
C.M.A. No.560-K of 2011 and pointed out
that the Government functionaries did not
perform their duties due to fear of death at
the hands of the criminals, inasmuch as,
621
such incidents had already occurred and
about 92 police officials who participated in
the Operation Clean up of 1992 had been
murdered through target killing. Therefore,
under the circumstances, now the
investigating officers are not ready to
conduct investigation independently nor the
witnesses dare to come forward because
they do not get protection as already stated
by the President of the Supreme Court Bar
Association. In absence of any evidence, it
is not possible to accept the statement that
92 police officers, who participated in the
1992 Operation Clean up have been
murdered. It can only be considered a factor,
but at the same time we, during hearing of
the cases, looking to the trend of
investigation of cases as well as the morale
of the police, have no reason except to agree
with the learned President of the Supreme
Court Bar Association and other
622
representatives of the lawyers coupled with
the statement of IGP Sindh that about 30 to
40 percent police officers/officials are non-
cooperative.

80. In all the civilized countries where

hardened criminals are brought before the
Court, full protection is provided to the
witnesses so that they may not feel
frightened while deposing the truth, but
unfortunately, no such programme is
available throughout the country despite the
commission of offences, which seem to have
taken place and the criminals have gone scot
free because nobody dares to depose against
them and ultimately the blame is shifted to
the Courts for acquitting them. In the present
incidents, we have noted with concern that
most of the F.I.Rs. have been registered
against unknown persons and the police
623
officers in the garb of section 173, Cr.P.C.
wherein they are required to submit the
challan within 14 days, instead of filing
interim challan, make request to the court to
enlarge the period of investigation and after
seeking permission feel satisfied in getting
the F.I.R. cancelled after declaring it as an
"A" class case. As it has been noted
hereinabove, comparative table of the
F.I.Rs. registered during one month's period
indicates that most of the cases have already
been declared as "A" class. So far remaining
cases are concerned, no effective progress
seems to have been made, may be on
account of non-commitment of the
investigating officers, or for the reasons that
no witness is ready to come forward. The
situation in the city has gone from bad to
worse to the extent that on our direction 18
persons, who were abducted, were recovered
by the police. Prima facie, such abductees
624
were not recovered prior to the direction of
this Court because no police official was in a
position to afford enmity with the criminals.
The statements of two of such persons are
reproduced hereinabove.

81. Thus, in view of such state of affairs,

how could one believe that, in presence of
the overwhelming material, which has been
brought before this Court in daily situation
reports, reports of Special Branch, IB and
other sources as well as material discussed
hereinabove, the criminals will be punished
for the crimes, which they have committed.
Therefore, under the circumstances, change
in the investigation and improvement in the
prosecution system is sine qua non, and that
too, through de-politicized, honest and
competent officers. In absence thereof the
accused persons shall be encouraged if they
625
are arrested but not sentenced knowing fully
well that they though have brutally killed so
many persons in violation of the
Fundamental Rights of the victims, nothing
would come of this barbarity.

82. Learned office' bearers of -both the Bar

Associations noted above also pointed out
that six Special Courts under the Anti
Terrorism Act 1997 were lying vacant for
the last several months despite the fact that
the Chief Justice of High Court of Sindh was
continuously pressing hard for the
appointment of Presiding Officers in these
Courts. Inasmuch as, Mr. Justice Javed
Iqbal, former Judge of this Court, who was
nominated as Judge to monitor the cases of
Anti-Terrorism Courts for Karachi, in view
of the observations made in the case of
Liaqat Hussain (supra), had taken up the
626
matter with the concerned authorities to
ensure early appointment of the Presiding
Officers, but no progress was made. This
judgment, however, also contains directions
which were incorporated in the judicial
order to ensure expeditious disposal of
cases, but it seems that the concerned
authorities were not aware of the same.
When we asked the learned Advocate
General, Mr. Abdul Fattah Malik to explain
the position of the Government, he candidly
conceded that delay has been caused in not
making the appointment, but as there is no
difference between the Chief Minister and
Chief Justice of the High Court on the
appointment of Judges already
recommended, therefore, notification would
be issued within two days. Consequently, on
7-9-2011, all the six Judges were appointed
vide notification issued by the Government
of Sindh. It is to be noted that the Competent
627
Authority of the Province had to make the
appointments on the basis of
recommendations u/s 14 of the Anti-
Terrorism Act, 1997. Admittedly, in the
instant case recommendations were lying
with the Competent Authority since long,
but it failed to make the appointments and
reasons of the same have not been disclosed
by -the learned Advocate General except
stating that some delay has occurred. In the
case of Liaqat Hussain (supra), this Court
had taken upon itself the exercise of
monitoring the functioning of Anti-
Terrorism Courts through a nominee of the
Chief Justice, therefore, vacancies of such
Presiding Officers cannot be left un-filled
for an indefinite period of time and the
appointments have to be made as early as
possible instead of causing the delay for one
or the other reason. However, as now
appointments have taken place and
628
reportedly these officers have joined duty,
we are confident that in future such
appointments, subject to availability of the
vacancies, will be made promptly.

83. Mr. Ghulam Qadir Jatoi, ASC appeared

in C.M.A. No.533-K of 2011 and
highlighted his grievance that one deceased
Junaid Zaidi kidnapped in the -month of
April, 2011 by the terrorists/killers was
severely tortured and was killed and his
dead body was thrown on Katchra Kundi.
Case has been registered-u/s 302/34; P.P.C.
vide F.I.R. No.57 of 2011 in Malir Cantt.
Police Station. Similarly, one Ayub Ali was
killed/murdered in the month of July, 2011
by the terrorists after entering into his house
when he was giving Dars-e-Quran, as such
F.I.R. No.194 of 2011 was lodged at
Brigade Police Station u/s 302/34, PPC.
629
This application was followed by another
application wherein documents were filed to
establish allegations against the sovereignty
of Pakistan attributing to Altaf Hussain,
leader of MQM along with two CDs. Yet
another application has been filed for
summoning Dr. Zulfiqar Mirza, former
Home Minister, Government of Sindh, who
according to him, had deposed on Holy
Quran against MQM. We have pointed out
to the learned counsel that he should have
filed affidavit of Dr. Zulfiqar Mirza and also
brought to his notice that instant proceedings
are not adversarial but inquisitorial, which
have been initiated in the public interest.
However, the issue being raised by him is of
important nature and if he, too considers it
so, he can adopt the proper course for the
redressal of his grievance in accordance with
law. We have also pointed out that by the
time it is established that Dr. Zulfiqar
630
Mirza's statement in the newspapers has not
been controverted by anyone, therefore, the
same will be presumed to have been
accepted as it is held in the case of Dr.
Mobashir Hussan v. Federation of Pakistan
(PLD 2010 SC 265). He also emphasized
that murder of a man in view of the Islamic
injunctions is tantamount to murder of the
entire humanity, therefore, murders of all
those persons, who have been killed in
Karachi without any reasons being Masoom-
ud-Dum clearly indicate failure of the
Provincial Government. As far as Islamic
injunctions with regard to killing of an
innocent person is concerned, there could
not be any two opinions. This injunction of
Islam has been elaborately discussed in the
case of Federation of Pakistan v. Gul
Hassan Khan (PLD 1989 SC 633).
However, a criminal case in adversarial
proceedings is likely to be decided on merits
631
after recording of evidence.

84. Mr. Ghulam Qadir Jatoi, learned ASC

referred to the case of Sardar Farooq Ahmad
Khan Leghari v. Federation of Pakistan
(PLD 1999 SC 57) and contended that the
Judges of the Superior Courts who have
taken oath to protect the Constitution are
bound to enforce Fundamental Rights
conferred by the Constitution and ensure
that the provisions of the Constitution are
fully alive and operative. It is to be noted
that in the aforesaid reported judgment the
Proclamation of Emergency dated 28-5-
1998, promulgated under Article 233(1) of
the Constitution, was questioned and the
Court concluded that it was sufficient to
hold that prima facie there was some
material on the basis of which the President
could issue the impugned Proclamation of
632
Emergency on account of imminent danger
of external aggression. However, the same
did not warrant passing of an order under
clause (2) of Article 233 of the Constitution
suspending the enforcement of the
Fundamental Rights. To strengthen this
argument one of the reasons assigned in the
later part of the judgment was that in spite of
suspension of enforcement of certain
Fundamental Rights under clause (2) of
Article 233 of the Constitution, Article 4
thereof remained fully operative, which laid
down that to enjoy the protection of law and
to be treated in accordance with law is the
inalienable right of every citizen, wherever
he may be, and of every other person for the
time being within Pakistan and in particular
no action detrimental to the life, liberty,
body, reputation or property of any person
would be taken except in accordance with
law. Therefore, according to the learned
633
counsel, Fundamental Rights of the citizens
of Karachi have to be enforced by the Court
in the discharge of judicial functions. We
have no cavil with the proposition and fully
endorse the arguments of the learned
counsel. He has also relied upon the case of
Syed Jalal Mehmood Shah v. Federation of
Pakistan (PLD 1999 SC 395). In this case,
the order dated 30-10-1998 issued by the
Federal Government under paragraph (c) of
clause (2) of Article 232 of the Constitution,
pursuant to the declaration of Proclamation
of Emergency dated 28.05.1998 under
Article 232 of the Constitution was
challenged. The order referred hereinbefore
was followed by another order dated 10-11-
1998, issued by the Federal Government, in
pursuance whereof the operation of Article
54 read with Article 127 relating to
summoning and prorogation of the
Provincial Assembly was suspended;
634
however, no question with regard to the
enforcement of Fundamental Rights was
involved, therefore, the cited judgment in
view of the facts and circumstances of the
present case is not applicable. He further
contended that Jamat-e-Islami had issued a
White Paper according to which sufferings
of the citizens of Karachi were on account of
commission of heinous crimes in the city
since 1985, which were being committed by
one party (MQM) and it was admitted and
declared by the Government, that serious
lawful action was, therefore, taken against
them by the Government.

85. Similarly, Awami Tehrik Party, through

its President Mr.Rasool Bux Palijo, during
the arguments stated that MQM was
responsible for target killing, attacks on the
police, etc., and that MQM was a challenge
635
to the country, therefore, a ban be imposed
on this party as innocent people were
suffering at their hands and people were so
overawed that due to fear created by them,
no body was ready to go before the police.
He maintained that the people of Karachi are
absolutely insecure, as such, ways and
means be found out to give relief to them
otherwise there was every likelihood that in
the ultimate result there could be
uncontrollable anarchy as the people in the
town finding themselves without protection
to their dignity, life, liberty and property
might, as a last resort, take the law in their
hands.

86. Mr. Irfan Ullah Marwat, petitioner, who

appeared in person being the President of
Pashtun Punjabi Ittehad too, raised similar
voice against MQM.
636
87. From the material so brought on record,
namely, reports of the JIT filed by Syed
Iftikhar Hussain Gillani, learned ASC,
report submitted by the Provincial
Government prepared by its Special Branch,
report of the IB and information collected
from other credible sources during in camera
briefing by ISI does highlight the role of the
stakeholders and political parties, namely,
ANP, PPP, MQM, Sunni Tehrik, Jamat-e-
Islami, etc. that in the ranks of these political
parties, criminals have succeeded in making
their way, some of whom are now involved
in target killing, land grabbing, drug mafia,
recovery of bhutta as well as forcible
recovery of skins of animals during Eid-ul-
Azha and due to their vested interests, there
is a turf war. In this context the following
statement of Mr. Rehman Malik Federal
Interior Minister published in Daily Dawn
637
dated 13-9-2011 is quite pertinent:--

"Interior Minister Rehman Malik said on

Tuesday that 'criminals' arrested in
Karachi during the current operation
belonged to all political parties.

The government has evidences (audio

and video tapes) against them which will
be made public if permitted by the
Supreme Court.

"I will consult with the federation's

lawyer, Babar Awan, about getting
permission from the Supreme Court to
make the names of criminals public," he
told reporters at the National Press Club.

638
Although, he said, the people arrested in
Karachi belonged to all political parties,
he was of the view that they had not been
recruited by the parties, but they
somehow managed to get refuge in them
after committing crimes.

He said that police and Rangers had

arrested 48 target killers, 90 criminals
and 28, extortionists and seized 308
weapons.

The operation, he said, was being carried

out without any discrimination, with the
sole objective being to restore normality
and peace in the city.

Expressing satisfaction over the way the

639
operation was being carried out, he said
there were `no-go -areas' in the city and
police and Rangers were free to take
action even in such areas where they
could not enter in the past.

Mr. Malik said flags of political parties

had been removed in various places and
around 14,000 acres of land occupied by
the land mafia had been recovered.

Rebuffing allegations levelled by the

Leader of Opposition in the National
Assembly, Mr. Malik said that he had no
links with any terrorist. He said he had
good relations with the Muttahida Qaumi
Movement which was in parliament with
people's mandate.

640
"It will be unjustified to declare any
political party `terrorist' without any
evidence," he said.

Commenting on an allegation levelled

against him by PPP leader Zulfikar
Mirza, he said he had not released any
criminal in Karachi and if anyone had
evidence he could present in the court.

The minister claimed that no foreign

security agency was operating in the
country, adding that he had advised
foreigners to visit only permitted areas
because of security concerns.

He said a committee had been formed to

probe an incident in which journalists of

641
 a private TV channel had been tortured
by some unidentified elements. Action
will be taken on the basis of findings of
this committee.

"A judicial commission was formed on

the demand of journalists to probe into
the killing of Saleem Shehzad and the
commission has submitted its report to
the interior ministry which I have handed
over to NPC's President Afzal Butt," he
said.

The minister said that four people had

been arrested in the case about murder of
journalist Wali Khan Babar."

Inasmuch as, the Prime Minister also

642
admitted more than once that PPP men were
also involved. in violence in Karachi.
Reference is made to the news item
published in The News International dated
25-8-2011:--

"Prime Minister Yusuf Raza Gilani-on

Wednesday ruled out a military
operation in Karachi unless all other
options were exhausted first but admitted
before his cabinet colleagues that PPP
men were also involved in the Karachi
killings.

A cabinet minister confided to The News

that the Prime Minister told the cabinet
meeting that the law enforcement
agencies in Karachi were confident to
control the deteriorating law and order
643
situation in the city in just a fortnight's
time provided they were given a free
hand.

However, the minister did not explain if

the much- demanded ' free hand is being
given to the law enforcers to apprehend
and punish the criminal elements there
without any fear and favour.

Prime Minister Gilani despite being chief

executive is not relevant on key policy
and administrative matters including
Karachi politics as the Presidency is
calling the shots and takes decisions on
such matters.

The Prime Minister, according to the

644
source, said that the law enforcement
agencies are seeking a free hand and
demanding that there should be no
political interference from any side to
ensure early peace and stop target
killings. Political interference and the
backing of criminals and killers by the
political parties are seen as the major
hurdles in the way of durable peace in
the city.

Briefing the cabinet about the Karachi

situation, the Prime Minister admitted
that besides the MQM and ANP, the PPP
men whom Gilani described as "our
men" are also involved in the Karachi
killings.

The cabinet Ministers were almost

645
unanimous to demand that the law
enforcement agencies should be given a
free hand to get hold of the criminals,
target killers and gangsters irrespective
of their party affiliation.

Some of the Ministers even demanded

that the information regarding such
criminals, killers and gangsters should be
made public without any political
considerations. The cabinet was told that
there are nine troubled areas in Karachi
which require focus of the law enforcers
to check crime and curb target killing.

The Prime Minister while referring to a

demand for the deployment of army in
Karachi to launch operations against the
criminal elements said that the
646
government would not deploy the army
in Karachi till the time all other options
were availed.

The cabinet source disclosed that the

Sindh government is also unhappy with
the. interference from the federal
government through interior minister
into the Karachi situation. The source
said that Prime Minister Gilani sounded
the provincial government's urge to let it
settle the problem that falls within the
provincial domain.

Only recently provincial minister Dr

Zulfikar Mirza is said to have blasted the
interior minister during a high-level
official meeting in Karachi for the latter's
uncalled for interference into the Karachi
647
 affairs. Later, however, Mirza was
summoned to Islamabad by President
Zardari and gut up a media show with
Rehman Malik to show that there was no
ill-will between them."

Similarly, the President of Pakistan is fully

aware of the situation as it is evident from
various news items appearing in different
newspapers.

88. As all the stakeholders are desirous of

maintaining their hold on the economic
resources of Karachi, therefore, it is
imperative for all concerned to take
necessary steps and disband the militant
outfits voluntarily for the sake of Karachi as
well as this country because on account of
their criminal activities a loss of about 2.5
648
billion is being caused daily to the
Government and ultimately this burden is
passed on to the general public. All the
circumstances which are prevailing in
Karachi based on credible information seem
to be very serious and if the situation of law
and order is not controlled/improved,
happening of a major debacle in Karachi
city cannot be overruled, therefore, it is high
time for the politicians in particular to co-
operate with each other for making Karachi
a peaceful city.

89. As for as banning of MQM is concerned

on the basis of the material and the other
information placed before us as well as. the
statement of Dr. Zulfiqar Mirza, former
Home Minister, Government of Sindh,
which is sought to be produced by Mr.
Ghulam Qadir Jatoi, it may be observed,
649
subject to all just exceptions, that the instant
probono publico proceedings, which are
essentially inquisitorial in nature, cannot be
allowed to assume an adversarial character.

90. Moreover, under Article- 17(2) it is the

duty of the Federal Government to declare
that a political party has been formed or is
operating in a manner prejudicial to the
sovereignty or integrity of Pakistan and
within fifteen days of such declaration, refer
the matter to the Supreme Court whose
decision on such reference shall be final,
therefore, no further comment on this aspect
of the case, lest it may cause prejudice to
any of the parties, is called for.

91. According to the available record, land

grabbing is one of the factors responsible for
650
causing disturbances in Karachi and there is
no denial by anyone appearing before the
Court. Same position is in respect of drug
trafficking, etc. Crimes are also being
committed at large scale by foreign nationals
nearly 2.5 million in number belonging to
different countries including Bangladesh,
Burma, India, etc. As far as the question of
de-weaponization is concerned, no one
amongst the interveners has opposed it,
therefore, a methodology has to be devised
by the Government by following the law on
the subject i.e. Surrender of Illicit Arms Act,
1991, and/or if need be, further laws on the
subject can be enacted/promulgated to
achieve this object. In this behalf, in
Bangladesh following steps were taken.

(i) Illegal arms collection programme

carried out in 2002-2003 as part of
651
 Bangladesh's crackdown on criminals,
operation Clean Heart.

(ii) Bangladesh's biggest illegal arms haul

took place in Chittagang on 2-4-2004.

92. An identical situation was prevailing in

Malaysia and that Government with full
commitment and sincerity had also collected
illicit arms from the criminals. Similarly,
this task can be completed in our country as
well; if there is honest commitment on the
part of the law enforcing agencies but in the
instant case without depoliticizing the
police, positive result apparently seems to be
an uphill task, however, to ensure peace in
Karachi, certain steps will have to be taken.
The law enforcing agencies will have to be
de-politicized as well as for recovery of
652
illicit arms effective measures will have to
be taken under a proper programme to be
launched by the Government. As far as the
question of presence of 2.5 million aliens in
Karachi is concerned, it is more alarming
compared to the activities of the criminals
involved in heinous crimes, like target
killing, etc. This aspect of the case would
reveal that the presence of such persons is
not only a factor for increase in crime; but at
the same time without proper registration,
they are a burden on the national economy,
inasmuch as their presence can give rise to
so many other administrative problems,
including obtaining of National Identity
Cards by them. If they have succeeded in
this venture and claim themselves to be
citizens of Pakistan and have also succeeded
in registering their names in the electoral
list, it would be tantamount to depriving the
actual electorate from choosing their
653
representatives, inasmuch as due to their
presence, areas have expanded considerably,
which directly affects the delimitation of the
constituencies meant for holding elections of
the Provincial Assembly and the National
Assembly, therefore, the Government should
take immediate action against them in
accordance with law, namely, the Foreigners
Act. NADRA and the Police must undertake
a careful cleansing process of such people
and NADRA must have separate records and
computer files based on proper and cogent
evidence. NADRA and police should co-
operate in Karachi through an intensive
drive to identify foreigners, block their NIC
cards after due process of law and special
teams should be appointed and dedicated for
this job by DG NADRAT and IGP so that
this can be completed in the course of next
one year or so. Then the law must take it
own course in each case. This must be given
654
high priority.

93. The learned Attorney General, in his

submissions, also referred to the Quranic
verse, viz., killing of one person is killing
the entire humanity, therefore, there could
not be two opinions that killings in Karachi
during the last few months are condemnable,
but for such reason, question for
determination would be as to whether the
State can be held responsible for the actions
of the criminals, who have committed
crimes, or the individuals are to be held
responsible for their acts under the relevant
laws independently. The learned Attorney
General, as per the directions of this Court
contained in the order dated 24-8-2011, has
placed on record reports of the Special
Branch of Police, Government of Sindh and
the IB, and he also arranged a presentation
655
by ISI (however, he was not present during
the presentation). As far as commission of
crimes is concerned, it is always done by the
accused persons individually or collectively.
Ordinarily, when any crime is committed by
an individual, he is considered to be the
accused of the State for violating its laws
and when crimes individually or collectively
are committed by the perpetrators
challenging the authority of the Government
creating anarchy, the State is bound to
control the crimes and at the same time
protect its citizens against the criminals. In
the instant case, according to the figures
submitted by Mr. Abdul Fattah Malik;
learned Advocate General, Sindh, during the
hearing, in the current year 2011, 1310
persons have been murdered, whereas, in
one month, figures of which have been
obtained by the Court vide order dated 24-8-
2011, admittedly, 306 persons have been
656
murdered and 159 persons have been
injured. When murders of innocent persons
at the hands of perpetrators who belong to
different communities are being committed
as a matter for vengeance and as tit for tat
without control of the executive authorities
of the Provincial Government, it clearly
indicates that lawlessness has reached a
point where the State through the Provincial
Government in exercise of its executive
authority is not in a position to provide
security to its citizens and on account of lack
of administrative authority of the
Government, so many persons have been
deprived of their right to life and liberty
enshrined in Article 9 of the Constitution.

94. As far as the arguments of the learned

Attorney General that under the Constitution
a procedure has been provided for the
657
removal of the Provincial and Federal
Governments ruling the country after the
election, therefore, it could only be possible
when the procedure so laid down in the
Constitution is followed. There is no cavil_
with this proposition; however, in the instant
proceedings, this argument is not relevant.
Learned Attorney General has also stated
that as far as the suggestions. made before
the Court for imposing Emergency under
Articles 233 and 234 of the Constitution, or
calling the Army in aid of civilian
administration under Article 245 of the
Constitution, or the steps to be taken by the
Provincial Government in this behalf arc the
actions, which are purely for the Federal
Government or the Provincial Government
to initiate and no direction can he given by
the Court in this respect. Suffice it to
observe that the Federal Government is duty
hound' under Article 148(3) of the
658
Constitution to protect every Province
against internal disturbances and to ensure
that the Government of every Province is
carried on in accordance with the provisions
of the Constitution, therefore, the suggestion
put forward during the arguments on behalf
of some of the parties does not mean that
this Court has issued the directions. Only
attention of the Federal Government has
'been drawn towards the Constitutional
provisions which, according to their
suggestions, should also be invoked for
maintaining law and order in the Province of
Sindh instead of paving way for any
unconstitutional action by any adventurer as
it had been happening in the past. Reference
may be made to the cases of Haji
Muhammad Saifullah Khan (supra),
Khawaia Ahmad Tang Rahim. (supra) and
Benazir Bhutto (supra) Similarly, exercise of
the authority to call Army in aid of civil
659
administration to control disturbances under
Article 245 of the Constitution is only one of
the options, which lies with the Federal
Government, as such its consequences are
bound to follow strictly in accordance with
the provisions of the Constitution.

95. Learned Attorney has agreed that this

Court has power to pass appropriate orders
as called for in view of the facts and
circumstances, but his opinion was that as
now situation is manageable and under
control, therefore, in the instant proceedings
no order is required to be passed. For the
reasons which we have already mentioned
hereinabove, we are not in a position to
subscribe to his viewpoint because
overwhelming material is available on
record, reference of which has already been
made hereinabove repeatedly, to persuade us
660
to form an opinion that bloodshed, arson,
kidnapping/abduction for ransom,
widespread violence, illegal collection of
money (bhatta) from traders, etc., were
being committed within the knowledge of
the State through Provincial
Government/Executive but it remained a
silent spectator and prima facie failed to take
appropriate action, may be for some political
reasons, but the Constitution does not allow
the Executive to compromise its position at
the cost of innocent citizens who lost their
lives, property, liberty and dignity because
of the expediency of the Provincial or
Federal Government. It may not be out of
context to mention here that despite hearing
of this case, during course whereof law
enforcing agencies have been asked time
and again to bring the criminals to book
without any discrimination, the criminals
continued to harass the general
661
public/innocent citizens continuously, as in
the recent past a trader has been kidnapped
for ransom from Sher Shah Kabari Market.
We have been informed during the hearing
that there is a strike in the market and
accused persons have demanded ransom, but
so far the matter has not been
finalized/resolved. On our direction,
concerned SSP of the area appeared in Court
and stated that pickets/police check posts
have been established at different places, but
despite that, there is no control over the
crimes. We have pointed out to the learned
Attorney General that this is high time when
the Executive of the Provincial Government,
instead of compromising the position, on
account of any reasons known to them,
should come forward with iron hands to
control the crimes. We may point out here
that the material so brought on record and
the presentation which has been given by the
662
Intelligence Agency, must also have been
brought to the notice of the Executive of the
Province and by the time it has become
known to everyone about the persons
involved in causing disturbances because on.
such a large scale internal disturbances
cannot take place without the, support or
passivity of the persons who are themselves
at the helm of affairs and the Provincial
Executive Authorities in such a state of
lawlessness ought to have felt no hesitation
to bring them to book, but here it appears,
that there are certain expediencies which are
preventing them to do so. In such an
abnormal situation the Federal Government
also cannot be considered to be oblivious of
the happenings, which presumably knows all
these facts obviously prevailing in the
economic hub of country, as the reports
which we have gone through must have
been brought to the notice of the Chief
663
Executive of the Federal Government and
other authorities as well, therefore, they
should have swiftly moved in to take action
in order to ensure that the Provincial
Government is allowed to work smoothly in
accordance with the Constitution. Leaned
Advocate General who has also pointed out
in his arguments that in the police
department, 1100 appointments have been
made illegally. At the same time, the IGP
Sindh who was present in the Court during
the hearing, also conceded that for the last
about 10 to 15 years, five hundred thousands
arms licenses have been issued by the Home
Department for arms and ammunition of
prohibited bore, however, according to him,
with the assistance of NADRA, an exercise
is about to commence to verify the status of
the licences. He added that in the past,
trucks of arms and ammunitions used to be
unloaded before the police stations but
664
police did not dare to check them. Mr.
Abdul Fattah Malik, learned Advocate
General made before the Court many
revelations, but did not disclose the names
of the groups who were challenging the writ
of the Government and undermining its
authority through target killings, bhatta
collection, etc., which are committed, not for
any ethnic reason, but for settling of
accounts by groups among themselves in an
attempt to establish their authority in the city
of Karachi otherwise anyone or all of them
would come forward to point out the names
of militant outfits involved in the violation
of Fundamental Rights of the citizens.

96. From the material so placed on record by

the Advocate General it is evident that the
disturbances in the Province are not recent
ones, but it has been going on for the last
665
many years, in which a large number of
innocent persons have been killed by way of
tit for tat and the authorities, in the past as
well have failed to secure their lives,
liberties, etc. According to learned Advocate
General, the Province of Sindh being the
land of Shah Abdul Laif Bhitai and Sachal
Sarmast had been a peaceful place where,
after Partition highly educated people
migrated to Pakistan. They were living
peacefully with original residents of Sindh,
but the menace of lawlessness started from
the period shown in the charts reproduced
hereinabove. He conceded that 2.5 million
aliens are also living in Karachi without any
registration, but so far the Government
could not deport them. However, we have
pointed out to him that organized crimes are
being committed in Karachi and there is
violation of the Fundamental Rights of
innocent people and the Government has
666
failed to protect the rights of the citizens,
however, individual type of crime or killing
of any person on account of personal enmity
is not unusual, and for that matter the
Executive Authorities cannot be held
responsible, but it is to be noted that in the
instant case, as discussed hereinabove in
detail, the Executive Authority of the
Province had prima-facie failed to exercise
its powers to protect the Fundamental Rights
of the citizens.

97. Barrister Zafarullah appeared in

Constitution Petition No. 61 of 2011
wherein following prayer has been made:--

(1) It is therefore respectfully prayed that

the judicial Commission under the
supervision of Supreme Court of
667
 Pakistan may be appointed, any Hon.
Judge sitting or retired may be appointed
as its Chairman.

(2) It is further prayed that under in no

circumstances Pakistan Army may be
summoned to meet the situation in
Karachi or to restore the law and order,
since it is trap desired by foreign forces
and will be breach of Articles 55 & 56
UNO and other resolutions of General
Assembly."

The learned counsel has referred to the

Charter of United Nations, importance of
human rights and also stated that had the
Court not taken cognizance of the matter,
the crime rate would not have declined and
if target killings, etc. had continued
668
unabated, it would have provided a cause of
interference to the United Nation Forces.
Except for the dramatic drop in crime rate,
we do not entertain this argument because
we are of the opinion that in this country
there is a written Constitution, which if
implemented through the Federal and the
Provincial Governments by strictly adhering
to its provisions without any political
considerations, the situation of law and
order can be managed. He also opposed the
intervention of the Army by calling it in the
aid of Civil Administration. This issue has
already been discussed in the preceding
paragraphs, therefore, the same need not be
further dilated upon.

98. Mr. Anwar Mansoor Khan, President of

Sindh High Court Bar Association, at the
outset, contended that Karachi is faced with
669
complex issues of law and order, which had
its origin in the politico- ethnic violence in
which different communities speaking
different languages like Urdu, Pashto,
Balochi, Sindhi, Punjabi, etc. were involved.
However, he admitted that members of these
communities have been involved in such
like activities mainly for the socio-economic
reasons. As the residents of Karachi in
different areas, particularly where violence
is at its peak, are even deprived of basic
amenities of life, therefore, these poor
persons are being used by different vested
interests including political parties/groups to
achieve their ulterior objectives and to watch
their economic interests. These
persons/groups having so called vested
interests are themselves well off having
established businesses and are not suffering
from any economic problem. The police is
so scared of them that they remain under the
670
influence of these groups who use poor
persons to achieve their illicit objectives.
Inasmuch as, if an ordinary person
approaches the police, his F.I.R. is not
registered and if a victim succeeds in getting
the case registered, prosecution does not
take interest, as a result whereof their cases
fail. Besides, according to him, mostly the
perpetrators belong to an organized group
having blessings and support of political
parties, therefore, the witnesses are so scared
that they avoid to appear in court. Therefore,
without addressing the afore-noted problems
of persons belonging to different
communities who fall within category of less
resourceful persons, the law and order
situation prevailing in the city cannot be
controlled. He referred to a number of cases
from the Indian Jurisdiction and the reports
of the Indian Law Commission. However,
he conceded that no witness protection
671
program is available. When we invited his
attention towards sections 21, 21A, 21B,
21C of the Anti-Terrorism Act, 1997 which
provide guidelines for the protection of
Judges, he submitted that these provisions of
law have also not been made applicable
fully, as a result whereof even in Anti-
Terrorism Courts, a large number of accused
have gone scot-free. Learned counsel stated
that there are political parties who
apparently are acting against the interests of
the country and are involved in disturbing
the law and order in Karachi, to achieve
their nefarious objects because the persons
controlling such parties have got no stake in
Pakistan. Inasmuch as, there are persons
who enjoy dual nationality or who have vast
unexplained and unaccounted for assets
outside Pakistan or who are not allied with
any political party and who are against the
sovereignty of the country, all such persons
672
are required to be dealt with according to the
Constitution. We have pointed out to him
that Article 17 of the Constitution 'read with
section 15 of the Political Parties Order,
2002 can be invoked if the Government
succeeds in establishing that any political
party is operating in a manner prejudicial to
the sovereignty or integrity of Pakistan.
Learned counsel emphasized that Article 4
of the Constitution is one of the most
important Articles, under which a citizen is
entitled to enjoy the protection of law and to
be treated in accordance with law being his
inalienable right, therefore, this Article
confers the Fundamental Rights upon a
person to seek security of life or liberty from
the State and similarly, Articles 14, 18 and
24 in respect of dignity of man, freedom of
trade, business and profession and protection
of property. Whereas in Karachi -for the last
many years the State/Provincial Government
673
had failed to implement their Fundamental
Rights and citizens are not safe and secure.
According to him, too, there are target
killings, murders, bhatta mafia, land mafia,
drug mafia, dead bodies in bags are found
lying in the streets and the accused persons
on account of their influences or being
desperate and hardened criminals, could not
be arrested. He stated that as per reports,
which have been placed on record by
different agencies without claiming
confidentiality and other information which
has been received by this Court, furnish
sufficient evidence to hold that the
Provincial Government has not been able to
act in accordance with the Constitution to
protect the dignity, freedom of trade,
business and profession and property. He
has referred to Islamic Republic of Pakistan
v. Abdul Wali Khan (PLD 1976 SC 57),
PLD 2004 SC 363 to emphasize that it is the
674
duty of the Government to maintain law and
order. We have inquired from him as to
whether in a situation where criminals
belonging to all political parties are involved
in disturbing the law and order, whether the
Executive/Provincial Government can
maintain the law and order, he stated that, in
fact, the prevailing situation indicates that
there is no will on the part of the Executive
to run the government according to the
Constitution otherwise it would not be
difficult to remove such elements from their
rank and file. In this behalf, it is to be noted
that in the Daily Dawn dated 14-9-2011, the
Federal Interior Minister made a statement
that criminals arrested in Karachi during the
targeted operation belong to different
political parties and that the Government has
evidence (audio and video) against them,
which will be used against them if permitted
by this Court. However, he stated that such
675
criminals have not been deputed by the
political parties, but somehow such elements
have managed to get refuge behind them
after committing crimes. During hearing of
this case, we have observed time and again
that the political parties represented before
us asserted in categorical terms, that
criminals/militant outfits are not part of their
political parties and declared that whosoever
claims association with any political party,
is incorrect. It is to be noted that in the
situation as the Interior Minister has himself
explained, it has become admittedly a highly
difficult task for the Provincial Government
to maintain law and order. Be that as it may,
this all depends upon the political
considerations in respect whereof we would
not like to comment, but we have to confine
ourselves only to the extent of the question
which has been raised in the order dated 24-
8-2011, namely, the situation of law and
676
order which has been disturbed on account
of bloodshed; arson, kidnapping/abduction
for ransom, widespread violence, illegal
collection of money (bhatta) from traders,
etc.

99. Mr. Abdul Fattah Malik, AG Sindh has

submitted a synopsis of his arguments on
behalf of the Government of Sindh. It may
be noted that in fact he had to appear on the
Court notice and the Province of Sindh put
up its appearance through Mr. Abdul Hafeez
Pirzada, learned Sr. ASC who has also filed,
under instructions, suggestions which have
been reproduced hereinabove. However, he
reserved his right to further argue the case
after the arguments of learned counsel
appearing on behalf the interveners,
particularly Syed Iftikahr Hussain Gillani,
Sr. ASC who placed on record reports of the
677
JIT. In the meanwhile, Intelligence Agencies
also shared classified information with the
Bench. The DG Rangers also appeared in
person and made submissions which have
been dealt with hereinabove, including one
that in Karachi the situation of law and order
is worse than that of North Waziristan, but
surprisingly on 14-9-2011 the learned
Advocate General conveyed that Mr. Abdul
Hafeez .Pirzada, learned Sr. ASC feels
contented with the arguments made earlier
and does not want to make any further
arguments before the Bench. The points he
has put up before the Court have been dealt
with hereinabove, particularly with regard to
the statement of fact in which he has
suggested that this Court should give a wake
up call to the Provincial Government, which
according to him means that in the past
violation of Fundamental Rights of the
citizens particularly those whose lives and
678
properties have not been secured, was
admitted and for the future he was asking
the Court to give a wake up call to the
Provincial Government.

100. The learned Advocate General in the

written submissions has stated as follows:--

(1) That the Government of Sindh has

never failed to deal with the law and
order situation in the Province of Sindh
and Government of Sindh is fully
determined to protect the life, liberty,
dignity, property and freedom of general
public.

(2) That the government of Sindh and

law enforcement agencies along with the

679
relevant authorities are fully competent
to control, curb and deal with any
internal disturbance and the government
of Sindh has proved it in the matter of:--

(a) Control of Law and Order

situation in Katcha area and other
parts of internal Sindh.

(b) To bring back normalcy in the

Law and order situation in Karachi.

(3) That the Government of Sindh

denounces all forms of violence, terrorist
activities, subversion and lawlessness in
the Province and in this regard the
Government of Sindh seeks support from
all the political parties.

680
(4) That the Government of Sindh has
unshaken, irreversible commitment and
determination to deal with the criminals
in city of Karachi in particular and on the
province level at large and no party
affiliation would deter its will and
commitment.

(5) That the government of Sindh has

taken concrete steps from prevention and
control of crime including the
deployment of Rangers in the city of
Karachi, as well as deployment of
additional forces by transfer from the
Interior of Sindh of Karachi.

(6) That the coalition Government of the

Province of Sindh has strong will of
681
continuing action against criminals in
Karachi and in order to deal with any
uprising in crime rate, concrete steps
have been taken by Government of Sindh
to enhance the capacity of the police, to
raise the morale of the police as well as
to strengthen this institution at the
provincial level.

(7) It is categorically made clear that at

no stages of these proceedings the
Government of Sindh as conceded that it
failed to control this situation or has
shown any slackness.

(8) It is regrettable that on behalf of

political groups appearing before this
Court, political insinuation and
allegations were levelled upon the ruling
682
coalition Government of Sindh in sheer
violation and disregard of the
observations made by this Court that
these proceedings are no-adversarial.

(9) Present elected Government is

mandated by the Constitution to serve
the people of Sindh for 5 years,
therefore, the Government of Sindh has'
made short term, midterm and long term
strategies to eradicate the crime at all
costs.

(10) It is worth mentioning that the

Province of Sindh unfortunately is his
very severely this year as well as it was
hit last year by the natural calamity. The
Government of Sindh successfully
rehabilitated millions of affectees of last
683
 year flood, however due to global
changes in the climate Government of
Sindh is demonstrating full resolve,
utmost will and continuous efforts to
enhance capacity for dealing with such
disaster. However, side by side full
attention is being given to other issues
being faced by the people of this
province.

101. The reports of JIT, CID, Special

Branch of Police and IB and other material
is available on record including presentation
given by the IG Police, the submissions
made by Major General Aijaz Ahmad
Chaudhry, DG Rangers and admission of IG
Police to the effect that 30 to 40 percent
police officials are non-cooperative because
of their appointments on political
considerations, coupled with the fact that it
684
is the basic duty of the police to maintain the
law and order, the police has been
politicized/demoralized. The learned
Advocate General has also admitted that
1100 appointments made on political
considerations have already been set aside.
The stand taken by him in his synopsis
seems to be inconsistent and not acceptable
in view of the above facts. It is to be noted
that as per his own statement filed in Court,
following persons have been murdered
during the last three years i.e. 2008 to 2011:

2008: 1142
2009: 1083
2010: 1484
2011: 1311 (up to 31-8-
2011)

685
He emphasized that the law enforcing
agencies have succeeded in causing arrest
and in this behalf he has filed the statement
for the months of January to September,
2011 prepared by the Karachi police, which
reads as under:--

Yea Number Gang Dacoi Dacoity/ Arreste

r Of Buste t criminal d P.Os.
encounte d Killed s Abs
r arrested MDs
201 704 512 64 5286 354
0 6427 0

However, we have noted that about 80

percent F.I.Rs., which have been registered
during the last one month, have been
cancelled by declaring them as "A" class
686
and whatever progress has been made in
causing arrests of the accused, it is after
instant proceedings by this Court. We have
also noted as mentioned hereinabove that the
Chief Secretary and the IGP Sindh have
categorically stated that now powers have
been given to the Rangers, so the question
arises as to why the Rangers were not put
into action earlier when this force was
already deployed in the Province of Sindh
from 1994 onward; and why the Provincial
Government was not interested in securing
the life, property and dignity of the citizens.
Admissions made by the IGP in respect of
no-go areas, drug mafia and the statement of
the Interior Minister referred to above are
sufficient to hold that the Provincial
Government had no intention to secure the
life and property of the people in the true
spirit of Article 4 of the Constitution,
envisaging that all citizens are entitled to
687
enjoy the protection of law and are required
to be treated in accordance with law. What
protection was given to those persons who
have lost\their lives and property? While
dealing with the argument of the learned
Attorney General, we have already
emphasized that the alleged crimes have not
been committed ordinarily, but these are
organized crimes and it was the duty of the
Provincial Government to have controlled
the same, but it is only after the Court took
suo motu notice that some improvement
seems to have been made in the law & order
situation in Karachi.

102. Khawaja Naveed Ahmed, learned ASC

stated that he represents the Friends of Lyari
International, a UK based organization.
According to his version, since 2009 till
date, 65 Balochi speaking people have been
688
killed in target killings, but so far no
appropriate action has been taken to trace
the accused persons, therefore, it is not
understandable as to whom they should
blame for such atrocities. It may be observed
here that in respect of all the cases in which
human beings have been killed irrespective
of their ethnic origins, it is the duty of the
State/Executive to ensure action and bring
the accused persons to book.

103. Dr. Babar Awan, Sr. ASC commenced

his arguments by reciting verses Nos.22 &
23 from Sura Almaida. Translation from
Arabic to English has been reproduced
hereinbelow:--

"[5:22] `O my people, enter the Holy

Land which Allah has ordained for you
689
 and do not turn, back, for then you will
turn losers'.

[5:23] They said, `O Moses, there is in

that land a haughty and powerful people,
and we shall not enter it until they go
forth from it. But if they go forth from it,
then we will enter it'."

In view of the above Injunction of Islam, as

we have already noted in the opening Para
of the judgment that if anyone killed a
person not in retaliation of murder, or to
spread mischief in the land, it would be as if
he killed all mankind, and if anyone saved a
life, it would be as if he saved all mankind,
which is to be accepted by all the Muslims.
It is clear from the above verses that life of a
human being is very precious, therefore,
690
Allah Almighty has condemned the killing
of even a single human being and has
equated it with the killing of the whole
humanity, and vice versa, if a man is saved,
the whole humanity will be deemed to have
been saved.

104. Leaned counsel candidly stated that he

supports the suo motu jurisdiction of this
Court, as according to him, in terms of
Article 29 of the Constitution, the judiciary
being one of the organs of the State can
exercise such jurisdiction.

105. However, he complained that in respect

of incident of 18-10-2007, which took place
in Karachi wherein Mohtarama Benazit
Bhutto, former prime. Minister of Pakistan
was attacked by the terrorists and so many
691
persons lost their lives, according to him,
despite requestmade by him on 27-10-2007
before a Bench comprising one of us (Mr
Justice Iftikhar Muhammad Chaudhry) and
Mr. Justice (R) Javed Iqbal no such action
was taken by this Court. It is to be noted that
the statement so made by him was not based
on correct information, inasmuch as Suo
Motu Case No. 25 of 2007 was registered
wherein, or 1-11-2007, he personally
appeared voluntarily and comments were
called, however, subsequently on 7-1-2007
Justice (R) Abdul Hameed Dogar (so called
Chief Justice) directed the office to keep that
file pending without any further proceeding.

106. According to the learned counsel, the

executive authority of the Federation
includes the four Provinces, Federally
Administered Tribal Areas administered
692
through the President, the Islamabad Capital
Territory, Gilgit and Baltistan, formerly
known as FANA, whereas; in respect of
Province of Sindh, the authority of the
Provincial Government extends to 23
districts of the Province of Sindh. Out of
these areas, internal disturbance relating to
law and order had allegedly taken place only
in the city of Karachi. So, his stance is that
the Executive Authority has failed neither at
the federal nor at the provincial level. He,
however, admitted that in terms of Article
232(1) read with Article 148(3) of the
Constitution, there is internal disturbance in
Karachi.

107. Learned counsel further argued that

neither the Federal Government nor the
Provincial Government has failed to
maintain the law and order in the Province
693
of Sindh and any declaration, if made by this
Court, which is the most credible institution
of the State of Pakistan, being the final
arbiter of all disputes and where all
interpretation ends, may invite some global
trouble with very serious repercussions,
inasmuch as the country is in the middle of a
war on the western and eastern fronts and
the latter front is more hostile and sensitive,
therefore, an attempt is being made by
someone to obtain such a declaration that
the executive authority has failed to deliver.
According to him, such a declaration cannot
be made as Pakistan is a nuclear State,
therefore, how can it fail in maintaining its
affairs. Argument so raised by the learned
counsel has no substance. Perhaps he has
lost sight of two important legal expressions,
namely, the State and Executive or the
Government. Dr. Babar Awan, learned
counsel has substituted the term
694
""executive" with the ""State". Hence this
requires some elaboration.

108. The word "executive" has been defined

in the American Heritage Dictionary of the
English Language, Fourth Edition as under:

n. ... The chief officer of a government,

State, or political division.

3. The branch of government charged

with putting into effect a country's laws
and the administering of its functions.

3. Of or relating to the branch of

government charged with the execution
and administration of the nation's laws.

695
In Collins English Dictionary - Complete
and Unabridged, the term has been defined
in the following terms:-

executive

n. ... the branch of government

responsible for carrying out laws,
decrees, etc.; administration

... having the function or purpose of

carrying plans, orders, laws, etc., into
practical effect

executive branch

696
 n. ... the branch of government charged
with the execution and s enforcement of
laws and policies and the administration
of public affairs; the executive."

Some of the other definitions are as follows:

-

Cultural Dictionary

"The branch of federal and state

government that is broadly responsible
for implementing, supporting, and
enforcing the laws made by the
legislative branch and interpreted by the
judicial branch. At the state level, the
executive includes governors and their
697
staffs. At the federal level, the executive
includes the president, the vice president,
staffs of appointed advisers (including
the cabinet), and a variety of departments
and agencies, such as the Central
Intelligence Agency (CIA), the
Environmental Protection Agency
(EPA), the Federal Bureau of
Investigation (FBI), and the Postal
Service (see postmaster general). The
executive branch also proposes a great
deal of legislation to Congress and
appoints federal judges, including
justices of the Supreme Court. Although
the executive branch guides the nation's
domestic and foreign policies, the system
of checks and balances works to limit its
power."

Oxford Guide to the US Government:

698
"The departments and agencies that take
political direction from the President,
including the 14 cabinet-level
departments, constitute the executive
branch of the federal government. ""The
executive branch" is not a phrase found
in the Constitution, but it is favored by
Presidents because it assumes that these
departments are under their sole
direction. The Constitution, however,
provides that officials of the departments
are to take direction not only from the
President but also from laws passed by
Congress.

Top officials in the executive branch,

generally referred to as "the
administration," are appointed by the
President with the, advice and consent of
699
the Senate, and they serve at the pleasure
of the President. The President uses his
Executive Office agencies to supervise
their budgets, their legislative requests to
Congress, and the regulations they make
and enforce.

Independent regulatory agencies (such as

the Federal Trade Commission), units of
government that are insulated by
Congress from political direction (such
as the Federal Reserve Board), as well as
several agencies that perform functions
for Congress (such as the Congressional
Budget Office) are not part of the
executive branch. Presidential
appointment and removal powers over
officials in these agencies may be limited
by Congress, and the President may not
provide them with political direction.
700
 In politics, a person or persons
constituting the branch of government
charged with executing or carrying out
the laws and appointing officials,
formulating and instituting foreign
policy, and providing diplomatic
representation. In the U.S., a system of
checks and balances keeps the power of
the executive more or less equal to that
of the judiciary and the legislature."

109. On the other hand, the word "State" is

defined as under:--

Advanced Law Lexicon

A body politic, or society of men, united

701
together for the purpose of promoting
their mutual safety and advantage, by the
joint efforts of their combined strength
....

Organization of the body politic or one

of the constituent 1 members of a
federation or organized political
community with government recognized
by the people ...

The political system of a body of people

who are politically organized; the system
of rules by which jurisdiction and
authority are exercised over such a body
of people ...

A state or political society is an

702
association of human beings established
for the attainment of certain ends by
certain means.

A state is an institution, that is to say, it

is a system of relations which men
establish among themselves as a means
of securing certain objects, of which the
most fundamental is a system of order
within which their activities can be
carried on. Modern states are territorial;
their governments 'exercise control over
persons and things within their
frontiers..."

Corpus Juris Secondum

n. ... it may signify a sovereign political

703
unity as set forth in International Law.

Collins English Dictionary - Complete

and Unabridged

n. ... (Government, Politics &

Diplomacy) a sovereign political power
or community

... the territory occupied by such a

community

... the sphere of power in such a

community affairs of State

... (often capital) one of a number of

704
 areas or communities having their own
governments and forming a federation
under a .sovereign government, as in the
US (Government, Politics & Diplomacy)

... (often capital) the body politic of a

particular sovereign power, esp as
contrasted with a rival authority such as
the Church

... The supreme public power within a

sovereign political entity.

... The sphere of supreme civil power

within a given polity: matters of state.

... A body politic, especially one

705
constituting a nation: the states of
Eastern Europe.

The concept of the State

A State is a form of political association

or polity that is distinguished by the fact
that it is not itself incorporated into any
other political associations, though it
may incorporate other such associations.
The State is thus a supreme corporate
entity because it is not incorporated into
any other entity, even though it might be
subordinate to other powers (such as
another State or an empire). One State is
distinguished from another by its having
its own independent structure of political
authority, and an attachment to separate
physical territories. The State is itself a
706
political community, though not all
political communities are States. A State
is not a nation, or a people, though it
may contain a single nation, parts of
different nations, or a number of entire
nations. A State arises out of society, but
it does not contain or subsume society. A
State will have a government, but the
State is not simply a government, for
there exist many more governments than
there are States. The State is a modern
political construction that emerged in
early modern Europe, but has been
replicated in all other parts of the world.
The most important aspect of the State
that makes it a distinctive and new form
of political association is its most
abstract quality: it is a corporate entity.

A sovereign State is a State with a

707
defined territory on which it exercises
internal and external sovereignty, a
permanent population, a government,
and the capacity to enter into relations
with other sovereign states. It is also
normally understood to be a State which
is neither dependent on nor subject to
any other power or State. While in
abstract terms a sovereign State can exist
without being recognised by other
sovereign States, unrecognized States
will often find it hard to exercise full
treaty-making powers and engage in
diplomatic relations with other sovereign
States.

The word "country" is often used to refer

to sovereign States, although it means,
originally, a geographic region.

708
Sovereignty has taken on a different
meaning with the development of the
principle of self-determination and the
prohibition against the threat or use of
force as jus cogens norms of modern
international law. The UN Charter, the
Declaration on Rights and Duties of
States, and the charters of regional
international organizations express the
view that all States are juridically equal
and enjoy the same rights and duties
based upon the mere fact of their
existence as persons under international
law. The right of nations to determine
their own political status and exercise
permanent sovereignty within the limits
of their territorial jurisdictions is widely
recognised.

In political science, sovereignty is

709
usually defined as the most essential
attribute of the State in the form of its
complete self-sufficiency in the frames
of a certain territory, that is its
supremacy in the domestic policy and
independence in the foreign one.

In the social sciences, a State is a

compulsory political institution that
maintains a monopoly of the legitimate
use of force within a certain territory.

Etymology and definition

Etymology

The word State and its cognates in other

710
European languages (stato in Italian, etat
in French, Staat in German) ultimately
derive from the Latin status, meaning
"condition" or "status."

With the revival of the Roman law in the

14th century in Europe, this Latin term
was used to refer to the legal standing of
persons (such as the various "estates of
the realm" noble, common, and clerical),
and in particular the special status of the
king. The word was also associated with
Roman ideas (dating back to Cicero)
about the ""status rei publicae", the
"condition of public matters". In time,
the word lost its reference to particular
social groups and became associated
with the legal order of the entire society
and the apparatus of its enforcement.

711
In English, "'State" is a contraction of the
word "estate", which is similar to the old
French estat and the modern French etat,
both of which signify that a person has
status and therefore estate. The highest
estates, generally those with the most
wealth and social rank, were those that
held power.

According to the Oxford English

Dictionary, . a State is "a an organized
political community under one
government; a commonwealth; a nation.
b such a community forming part of a
federal republic, esp the United States of
America". However, the most commonly
used definition is Max Weber's, which
defines the State as a compulsory
political organization with a centralized
government that maintains a monopoly
712
of the legitimate use of force within a
certain territory.

General categories of state institutions

include administrative bureaucracies,
legal systems, and military or religious
organizations.

The concept of the State can be

distinguished from the concept of
government. The government is the
particular group of people, the
administrative bureaucracy, that controls
the State apparatus at a given time. That
is, governments are the means through
which State power is employed. States
are served by a continuous succession of
different governments.

713
 Each successive government is
composed of a specialized and privileged
body of individuals, who monopolize
political decision-making, and are
separated by status and organization
from the population as a whole. Their
function is to enforce existing laws,
legislate new ones, and arbitrate conflicts
via their monopoly on violence. In some
societies, this group is often a self-
perpetuating or hereditary class. In other
societies, such as democracies, the
political roles remain, but there is
frequent turnover of the people actually
filling the positions.

110. As against the term "State", a

government is an institution whose existence
precedes that of the State. A government is a
person or group of persons who rule or
714
administer (or govern) a political
community or a State. For government to
come into being there must be existence of
public on the territory of a State. Ruling
within a household is not government.
Government exists when people accept
(willingly or not) the authority of some
person or persons to address matters of
public concern; the administration of justice,
and defense against external enemies being
typical examples of such matters.

111. Article 90 of the Constitution defines

"executive authority" as "subject to the
Constitution the executive authority of the
Federation shall be exercised in the name of
the President by the Federal Government
which consists of Prime Minister and
Federal Ministers, who shall act through the
Prime Minister who shall be the chief
715
executive of the Federation." Whereas in
relation to the Provincial ; Government,
Article 129 with the substitution of
Governor with the President defines the
Executive Authority of the Province
consisting of the Chief Minister and
Provincial Ministers, who shall act through
the Chief Minster. Both these executive
authorities represent the Federal and
Provincial Governments whereas the
institution of State is distinguished from
executive authorities as defined in Article 7
of the Constitution as under: --

"7. Definition of the State

In this Part, unless the context otherwise

requires, "the State" means the Federal
Government, Majlis-e-Shoora
716
 (Parliament), a Provincial Government, a
Provincial "Assembly, and such local or
other authorities in Pakistan as are by
law empowered to impose any tax or
cess."

112. Here the object of instant proceedings

is not to make any declaration against the
State of Pakistan, but one of the
Governments, namely, the Government of
Sindh Province, which is represented
through its executive as defined under
Article 129 referred to hereinbefore.
Although Article 7 of the Constitution
defines the State as the Federal Government,
Majlis-e-Shoora (Parliament), a Provincial
Government, a Provincial Assembly and
local or other authorities in Pakistan
empowered to impose any tax or cess,
therefore, distinction is abundantly clear as
717
the act of the Executive of the Province is
under consideration in terms of Article 129
of the Constitution, which is essentially a
distinct and a different concept from the
State as defined in Article 7. The order dated
24-8-2011 reproduced supra also explicitly
makes it clear that the conduct of the
Executive in enforcing Fundamental Rights
of the citizens guaranteed under Articles 9,
14, 15, 18 and 24 is under examination, and
as far as the State is concerned, its role has
not been examined. The arguments so put
forward by the learned counsel appear to be
irrelevant and are not in the context of the
proposition under consideration. This is not
for the first time that the conduct of the
Provincial Executive is being scrutinized. As
such, its performance relating to
enforcement of the Fundamental Rights or
its failure not to enforce these rights is under
examination. Admittedly, under Article
718
184(3), this Court exercises same powers,
which are available to a High Court under
Article 199(1)(c). The Court can make an
order giving such direction to any person or
authority including any government
exercising power or performing any function
and, in or, in relation to, in any territory
within its jurisdiction as may be appropriate
for the enforcement of Fundamental Rights
conferred by Chapter 1 of Part II. Reference
in this behalf may be made to the cases of
Muhammad Nawaz Sharif v. President of
Pakistan (PLD 1993 SC 473), Syed Wasey
Zafar v. Government of Pakistan (PLD 1994
SC 621), Bank of Punjab v. Haris Steel
Industries (Pvt.) Ltd. (PLD 2010 SC 1109)
and Federation of Pakistan v. Munir Hussain
Bhatti (PLD 2011 SC 752). Also sea
Zulfiqar Mehdi v. Pakistan International
Airlines Corporation (1998 SCMR 793),
Benazir Bhutto (supra), Asma Jilani v.
719
Government of the Punjab (PLD 1972 SC
139), Fauji Foundation v. Shamimur
Rehman (PLD 1983 SC 457), Jibendra
Kishore v. Province of East Pakistan (PLC
1957 SC 9).

113. So, on the basis of distinction between

the State and Executive authority vis-a-vis
the jurisdiction of this Court under Article
184(3), it is concluded that instant
proceedings are not against the State but to
consider whether' the Provincial
Government of Sindh allegedly had failed to
enforce the Fundamental Rights of the
citizens. However, Pakistan as a sovereign
country as well as a nuclear power for all
intents and purposes is a successful State
because such a State, in the words of Max
Weber, maintains a monopoly on the
legitimate use of physical force within its
720
borders. But, coming to the fundamental
question of exercise of jurisdiction keeping
in view of the facts and circumstances noted
hereinabove in detail, it is held that this
Court is empowered under Article 184(3) to
consider any question of public importance
with reference to enforcement of any of
Fundamental Rights, conferred by Chapter
1, Part II and can make an order of the
nature mentioned in Article 199. If the
argument of the learned counsel referred to
above is accepted, it would be tantamount to
abdicating the powers and jurisdiction
conferred by the Constitution, thereby
refusing to enforce Fundamental Rights
conferred by Chapter 1 of Part II in a matter
relating to public importance. The scope of
the jurisdiction of the Court with procedure,
which is to be followed, has been examined
in the case of Pakistan Muslim League
(Nawaz) v. Federation of Pakistan (PLD
721
2007 SC 642), wherein it has been held that
this Court under Article 184(3) is not
dependent only at the instance of the
"aggrieved party" in the context of
adversarial proceedings and while dealing
with a case under Article 184(3) of the
Constitution, this Court is neither bound by
the procedural trappings of Article 199 ibid
nor by the limitations mentioned in that
Article for exercise of power by the High
Court in any case Relevant Para therefrom is
reproduced hereinbelow:--

"20. After having discussed the' law laid

down in the above mentioned cases the
judicial consensus seems to be as
follows: -

(i) That while interpreting Article 184(3)

722
of the Constitution the interpretative
approach should not be ceremonious
observance the rules or usages of the
interpretation but regard should be had to
the object and purpose for which this
Article is enacted i.e. the interpretative
approach must receive inspiration from
the triad of provisions which saturate and
invigorate the entire Constitution namely
the Objectives Resolution (Article 2-A),
'the fundamental rights and' the directive
principles of State policy so as to achieve
democracy, tolerance, equity and social
justice according to Islam.

(ii) That the exercise of powers of

Supreme Court under Article 184(3) is
not dependent only at the instance of the
"aggrieved party" in the context of
adversary proceedings. Traditional rule
723
of locus standi can be dispensed with and
procedure available in public interest
litigation can be made use of, if it is
brought to the Court by a person acting
bona fide.

(iii) That the provisions of Article

184(3), provide abundant scope for the
enforcement of the Fundamental Rights
of an individual or a group or class of
persons in the event of their infraction
and it would be for the Supreme Court to
lay down the contours generally in order
to regulate the proceedings of group or
class actions from case to case.

(iv) That under Article 184(3) there is no

requirement that only an aggrieved party
can press into service this provision.
724
 Supreme Court can entertain a petition
under Article 184(3) at the behest of any
person.

(v) That the Article 184(3) is remedial in

character and is conditioned by three
prerequisites, namely -

* There is a question of public importance.

* Such a question involves enforcement of

fundamental right, and

* The fundamental right sought to be

enforced is conferred by Chapter 1, Part
II of the Constitution.

725
(vi) That it is not every question of
public importance which can be
entertained by this Court, but such
question should relate to the enforcement
of Fundamental Rights.

(vii) That even the disputed questions of

facts which do not require voluminous
evidence can be looked into where
Fundamental Right has been breached.
However, in, case where intricate
disputed question of facts involving
voluminous evidence are involved the
Court will desist from entering into such
controversies.

(viii) That the language of Article 184(3)

does not admit of the interpretation that
provisions of Article 199 stood
726
incorporated in Article 184(3) of the
Constitution. Therefore, this Court while
dealing with a case under Article 184(3)
of the Constitution is neither bound by
the procedural trappings of Article 199
ibid, nor by the limitations mentioned in
that Article for exercise of power by the
High Court in a case.

(McCabe v. Atchison (1914) 285 US

151, S.P. Gupta and others v. President
of India and others AIR 1982 SC 149,
Standard Vacuum Oil Company v.
Trustees of the Port of Chittagong PLD
1961 Dacca 289, Saeed Khan v.
Chairman, District Council of Bannu
PLD 1967 Pesh. 347, Asma Jilani v.
Government of the Punjab PLD 1972 SC
139, Muhammad Boota and 77 others v.
Commissioner, Sargodha Division PLD
727
 1973 Lah. 580, Hakim Muhammad
Anwar Babri v. Pakistan PLD 1973 Lah.
817, National Steel Rolling Mills v.
Province of West Pakistan 1968 SCMR
317, Fauji Foundation v. Shamimur
Rehman PLD 1983 SC 4.57, Abanindra
Kumar Maity v. A.K. Majumdar AIR
1956 Cal. 273, Fazal Din v. Lahore
Improvement Trust PLD 1969 SC 223,
K.K. Kochumii v. State of Madras AIR
1959 SC 725, Jibendra Kishore v.
Province of East Pakistan PLD 1957 SC
9, Messrs East and West Steamship
Company v. Pakistan PLD 1958 SC
(Pak.) 41 and Waris Meah v. The State
PLD 1957 SC (Pak.) 157, PLD 1988 SC
413, PLD 1990 SC 513, 1990 PLC 61
and PLD 1988 SC 416."

114. Thus, in view of the principle laid

728
down hereinabove, this Court is empowered
to examine as to whether the executive
authorities of the Province have failed to
enforce Fundamental Rights in terms of
order dated 24-8-2011 and the objections
raised by the learned counsel that any
declaration in this behalf would have serious
repercussions against the State of Pakistan
being without any substance for the above
reasons are overruled.

115. Learned counsel has emphasized that in

a system based on trichotomy of powers
being the basic feature of the Constitution,
the Armed Forces of Pakistan are also part
of the executive or the government as held
in the case of Liaqat Hussain v. Federation
of Pakistan (PLD 1999 SC 504). There is no
doubt about the fact that the Armed Forces
also fall within the definition of the
729
executive, but in the instant case, action of
the Armed Forces is not under examination.
However, this Court has examined this
aspect of the case in the light of the
judgment cited by the- learned counsel
wherein it was held that Pakistan Armed
Forces (Acting in aid of Civil Powers)
Ordinance, 1998 as amended up-to-date in
so far as it allowed the establishment of the
Military Courts for control of the civilians,
charged with the offences mentioned in
section 6 and the Schedule to the said
Ordinance is unconstitutional, without
lawful authority and of no legal effect.
Therefore, it can safely be held that this
Court is not exercising such jurisdiction for
the first time. This Court has jurisdiction to
examine an instrument on the basis of which
power to try the accused is conferred upon
the executive or the Armed Forces.

730
116. Learned counsel candidly conceded
that although in the 18th Constitutional
Amendment, more provincial autonomy has
been given to the Provinces, but in spite of it
under sub-Article (3) of Article 148 of the
Constitution it is the duty of the Federation
to protect every Province against external
aggression and internal disturbance, and to
ensure that the Government of every
Province is carried on in accordance with
provisions of the Constitution. On having so
admitted, he has cited following steps taken
by the Federation to protect the Government
of Sindh from internal disturbances:--

1. Placement of civil armed forces

(Sindh Rangers and Frontier
Constabulary) at the disposal of the
Government of Sindh;

731
2. Monetary support of 2.5 billion
specifically for training and capacity
building of the police department during
this financial year;

3. Sharing of real time intelligence with

the Province, which is actionable
intelligence;

4. Data regarding family tree of

criminals maintained in NADRA and the
database is shared with the Province after
an order by the Interior Minister;

5. Information helped by FIA regarding

different crimes and criminals shared
with the Provincial Government;

732
6. Blocking of over 20.1 million illegal
mobile phone SIMs, which are mostly
used in commission of crimes;

7. Grant of 5 billion rupees outside the

regular budget (besides .2.5 billion
rupees) as a special initiative of the
President of Pakistan for enhancing the
training and capacity of provincial law
enforcement personnel, directing the
Provincial Government to equip the
Police Department with 15 APCs [20
more APCs are in the pipeline];

8. Coordination set up is created for

Sindh and Balochistan border posts one
of the infamous routes of illicit arms to
the city of Karachi;

733
9. Customs and FIA intelligence another
outfit is created to control gun running
and drug trafficking into Karachi;

10. Coastal border management also

ordered through the Coast Guards to
control the incoming traffic of guns and
drug trafficking;

11. Aerial surveillance from SUPARCO

for determination of the factum' of land
grabbing and to control land mafia;

12. Google imageries through NADRA;

13. Complaint cell is established against

bhatta mafia in Karachi on the complaint

734
 of Chamber of Commerce, which is
being monitored by the Interior Minister
directly through the police and all other
intelligence sources.

117. He has further stated that the President,

Prime Minister, Army Chief and Chief of
every Intelligence Agency had visited
Karachi and held meetings on the law and
order situation. He admitted that the above
steps were taken by the Federation from
January, 2011 onwards; however, no
documentary proof was brought on record.
Be that as it may, except the stand taken by
the learned counsel in respect of the steps
taken by the Federal Government to protect
the Province of Sindh from its internal
disturbances, although most of the steps fall
within the category of long term solutions
for the purpose of controlling the
735
disturbances in Karachi but unfortunately
neither the executive of the federal
government nor of the provincial
government succeeded in controlling the
internal disturbance as it is evident from the
documentary evidence i.e. the report of JIT
dated 31-3-2011 and the report of Special
Branch of Police Department dated 18-8-
2011 and the presentations of the IGP Sindh
as well as the DG Rangers, and id camera
briefing by the ISI to the Members of the
Bench, which have already been discussed
hereinabove.

118. There is no dispute with the fact that

only in one month from 24th July to 24
August, 2011, 306 persons lost their lives
and in this period body bags, drilled bodies
of human beings as well as torsos of persons
who were tortured to death were recovered.
736
Although the Rangers, vide deployment
notification dated 17-5-1995 was available
in the Province, but in the recent past despite
internal disturbances powers were conferred
upon the Rangers only on 25-8-2011.
Although, admittedly the decision was taken
in this behalf on 22-8-2011, yet negligence
was shown in conferring the authority. In
this manner, a huge loss of life and property
of the citizens had occurred. It is to be noted
that learned counsel, without realizing its
repercussions, himself conceded the
obligation of the Federation in providing
assistance to the Provincial Government in
controlling the disturbances in terms of
Article "148(3) of the Constitution.' As it
has been pointed out hereinabove that at the
time when in the year 1997 the Federal
Government headed by Mohtarama Benazir
Bhutto was dismissed by the President, in
exercise of powers under Article 58(2)(b) of
737
the Constitution, one of the reasons for
dismissal of the Federal Government was
that it had failed to discharge its
constitutional obligations under Article
148(3). The principle laid down in the case
wherein the order of dissolution of
Assembly was maintained by this Court, is
undoubtedly applicable to the present
situation, as it has been explained by means
of the documentary evidence produced by
the learned Attorney General and the learned
Advocate General before the Court.
Therefore, the conclusion can conveniently
be drawn that despite the steps taken by the
Federation, the situation of law and order
has not been controlled and the life and
property of citizens in Karachi have not
been secured.

119. It is contended by the learned counsel

738
that the Speaker of the National Assembly
has, with the consent of the political parties
and leaderships acting in furtherance of the
national call and duty, constituted a
bipartisan Committee of the House to look
into the issues of Karachi and Quetta and to
recommend desired measures for the
restoration of peace and tranquility and the
Committee is holding its meetings. He has
further stated that the Federation and the
Provincial Government of Sindh had the will
to control internal disturbances and to
achieve this object following steps have
been taken and the documents produced
before the Court:-

1. JIT Report dated 31st March, 2011:

report is being acted upon to achieve the
desired result of controlling internal
disturbances in Karachi.
739
 2. Special Branch report dated 18th
August, 2011, which has also been
produced before this Court.

Both these reports have already been

referred to hereinabove, particularly with
reference to hardened and desperate
criminals including one Ajmal Pahari, who
has shown his connection with MQM. We
inquired from the learned counsel that in
spite of receiving credible information
through both the above reports, as to
whether any action has been taken while
remaining within the Constitutional
framework against the political
party/organization with whom allegedly
some of the accused have shown their
linkage, he stated that as there is democratic
system; the people have chosen their
740
representatives and the Government of the
day while performing its duty as per the will
of the voters will take into consideration all
these reports in due course of time. We have
pointed out to him not only the above
reports, but there are also the reports of IB,
Daily Situation reports, presentations of IGP
as well as other information which have
been received through ISI, which are
sufficient to adjudge the position of law and
order prevailing presently in Karachi, which
can confront not only Karachi but the whole
country with a greater disaster if curative
measures in accordance with the
Constitution and law to control the situation
are not taken. Thus, we may note that
internal violence in Karachi is also being
noted with concern. Reference to a write-up
published in The Economist of .27-8-2011,
which is reproduced hereinbelow:--

741
"ETHNIC warfare in Pakistan's most
populous city has reached such a level
that Karachi's ambulance service now
has to send out a driver matching the
racial make-up of the destination district
to pick up the victims of gang attacks.
Otherwise, the district's gunmen will not
let the ambulance through. Now
ambulances themselves are coming
under fire, as gangsters try to stop them
saving the lives of their enemies.
Karachi's ethnic wars have claimed some
1,000 lives this year, with more than 100
in the past week alone. By contrast the
Taliban and other religious extremists
kill tiny numbers in Karachi.

A grisly new feature of the carnage is

that people are not just being shot. They
are being abducted and tortured; then
742
their bullet-ridden, mutilated bodies are
dumped in sacks and left in alleyways
and gutters. Victims' limbs, genitals or
heads are often severed. Torture cells
operate across Karachi. The butchery is
filmed on mobile phones and passed
around, spreading the terror further.
Most victims are ordinary folk randomly
targeted for their ethnicity.

At the city's Abbasi Shaheed Hospital, a

public facility, doctors treat only
Mohajirs, who dominate the local district
and are the biggest ethnic group in
Karachi. Mohajirs are descendants of
those who moved to Pakistan from India
in 1947, when the subcontinent was
partitioned. Ambulance crews must
determine the ethnicity of patients and
take them to the right hospital.
743
If this were just a turf war between
criminal gangs, things might be brought
under control. But each gang has the
patronage of a mainstream political
party, in a fight that exploded in 2008
when an election was held to end
Pakistan's latest period of military rule.
Political support for warring ethnic
gangs means the police largely stay out
of the conflict: each gang will call on
political muscle if its henchmen are
rounded up. The provincial authorities
launched a crackdown this week, but
little is expected of it.

The Muttahida Qaumi Movement

(MQM), a party established in the 1980s
that claims to represent the Mohajirs,
once had an iron grip over Karachi. That
744
monopoly is now being challenged by
the Awami National Party, which says it
speaks for the ethnic Pushtun population,
who migrated from the north-west of the
country, and the Pakistan Peoples Party
(PPP) of President Asif Zardari, which
heads the ruling coalition in. the capital,
Islamabad. Its gang following is ethnic
Baloch, from the neighbouring Province
of Balochistan. It is the MQM versus the
rest.

The conflict's ferocity may yet threaten

Pakistan's fragile return to democracy. In
recent days Karachi businesses have
called for the army to restore order.
Violence in Karachi was repeatedly used
as part of the justification for toppling
four national governments in the 1990s.
This city of 18m people is Pakistan's
745
economic lifeline, and the port through
which most supplies reach NATO forces
in Afghanistan.

Away from the ritzy villas of Defence

and Clifton districts, the people of
Karachi's 3,500 square-kilometer (1,350
square-mile) sprawl live in decrepit
homes and apartment blocks set on
narrow, filthy streets, where gangs rule
with near impunity. Trouble often flares
when one ethnic ghetto abuts another.

In Korangi, a ramshackle semi-industrial

district in the east of the city mainly
inhabited by Mohajirs, Pervez has not
been to work for 20 days. He mends
tyres on Tariq Road in the city centre, a
half-hour bus ride away. But since gangs
746
started pulling people off buses and
killing them, he has been too afraid. to
venture out. "The Pushtuns will cut your
throat," Pervez says. "If I am killed, what
will my children do?"

Kashif Malik, a 32-year-old rickshaw

driver and PPP activist, was at home
with a friend, Shoib, in Orangi Town, in
Karachi's north-west, when gunmen
came to the door. Shoib was killed, while
Mr. Malik was lucky only to be shot in
the arm. He is sure the assailants were
from the MQM. Mr. Malik insists that
joining a political party offers the safest
protection these days. "A lone person
cannot survive in Karachi," says Mr.
Malik from his bed at the Civil Hospital.
Most of those killed are not involved
with any political party. Language,
747
clothes and even haircuts betray a
person's ethnicity to the killing squads.

For more than two decades the MQM

has collected extortion money, known as
bata, from businesses and homes across
the city. Now, using the political backing
they acquired in the 2008 election,
gangsters associated with the PPP and
the Awami National Party, in a loose
alliance, also want their share of cash, at
the heart of the conflict. Businesses now
have to pay off up to three rival groups.
In the past week Karachi's markets
selling marble, bathroom tiles and
medicines have separately staged
protests against bata.

As for the political parties, they seem to

748
 be able to turn the violence off and on as
it suits them. This suggests that these are
not mere criminals draping themselves in
the party flag, but rather integral parts of
the parties' political machines. If the
violence continues, 'more ordinary
people will be forced to seek the
protection of a political party, to which
they will have to pay more dues. Perhaps
this is what the politicians are aiming for.
"You can call this the politicisation of
crime, or the criminalisation of politics,"
says a security official in the city. "The
State has lost its writ in Karachi."

120. It has to be noted that in the past the

democratic governments were dismissed
either through the extra constitutional
instruments or in exercise of the powers
available under the constitutional provisions,
749
inter alia, for the reason that both the
Federation tnd the Province had failed to
control the disturbance in the Province.
Therefore, it is now the right and appropriate
time when the democratic set up must
adhere to the constitutional provisions to
protect the Province as well as the country
from internal disturbances. However, in
response to this, he has stated that a wake up
call is not needed, only a call to attention is
sufficient because the Federal Government
is answerable to the Parliament and it is very
much aware of its duties. We wish that the
Federal Government as well as the
Provincial Government could succeed in
bringing normalcy in the Province according
to the Constitution before it is too late to
overcome the internal disturbances in view
of the material brought before us.

750
121. The Federal Government could have
provided assistance to the Provincial
Government to control the disturbances
without any delay, but we fail to understand
the reasons prevailing with the Federal
Government in not acting promptly as the
learned counsel has himself by reciting
verses from Holy Quran pointed out that
killing of one human being is tantamount to
killing of whole mankind. During the
current year, more than 1300 persons were
killed. The Chief Secretary had admitted
that the decision to extend powers to
Rangers to control law and order had taken
place on 22-7-2011, but the notification was
issued on 25-7-2011, which has already
been reproduced hereinabove. Hence, the
argument raised by the learned counsel in
this behalf does not advance the case of the
Federation in any manner. So far the
remaining steps, which according to the
751
learned counsel had been taken by the
Federation, they all seem to be long term
measures. The Federal Government has to
protect the Provinces against internal
disturbances. Such protection, if required by
a Province in terms of Article 148(3) in view
of the given facts and circumstances and the
scenario presupposes prompt protection and
failure to do so makes the Federal
Government responsible as it has been held
in the cases of Ahmed Tariq Rahim and
Mohtarama Benazir Bhutto (supra).

122. The learned counsel emphasized that

the executive authorities in Pakistan had not
failed in maintaining law and order position
and in that .behalf he quoted the example of
Swat. Precisely stating, the situation in Swat
was altogether different as in view of the
specific facts and circumstances pertaining
752
to the said area and there too, the civil
administration had to call the military for
ensuring the writ of the Government, but in
Karachi, which is the hub of economic
activity, breakdown of law and order for a
single day allegedly causes loss of 2.5
billion rupees everyday. The Provincial
Government and the Federal Government
owe a duty to the citizens of Karachi to
ensure their Fundamental Rights without
comparing the situation prevailing over
there with any other part of the country.
Without prejudice to any findings recorded
herein, whether it is Swat or Karachi, equal
responsibility lies on the shoulders of the
Provincial Government and the Federal
Government to ensure the implementation of
the Constitution and law.

123. Learned counsel claimed that except in

753
Karachi in other parts/districts of the
Province of Sindh, the position of the law
and order is normal. We do not want to enter
into this controversy because the question
relating to other districts of Sindh is not
under consideration, although Mr. Abdul
Mujeeb Pirzada, learned ASC, who
appeared on behalf of Sindh Bachao
Committee, had uttered a few words to
indicate .that in the interior of Sindh as well,
situation of law' and order was not
satisfactory. However, it has been pointed
out hereinabove that all the limbs of the
State, administrative units, etc. have got
equal importance as far as the duty of the
Provincial Government/Executive or the
Federal Government or executive is
concerned, but when there is serious
situation of law and order like in Karachi
and if there is non-adherence to the
constitutional provisions, the consequences
754
are bound to reflect on the economic activity
of the whole of country as well as
internationally. Therefore, the argument so
raised by the learned counsel needs no
further discussion.

124. The learned counsel referred to the case

of Jamat-e-Islami Pakistan v. Federation of
Pakistan (PLD 2000 SC 111) to contend that
internal disturbance cannot be equated with
the failure of the executive authority. In this
behalf, it may be noted that in the cited case,
two petitions, bearing Petitions Nos.22 & 25
of 1999 filed by Jamat-e-Islami Pakistan and
MQM were filed before this Court under
Article 184(3) of the Constitution,
challenging the vires of Anti- Terrorism
Ordinance (No. IV of 1999) dated 27-4-
1999 on the ground of being repugnant to
the Constitution and contrary to the
755
guidelines provided by this Court in the case
of Mehram Ali v. Federation of Pakistan
(PLD 1998 SC 1445). This Court examined
the expression `disturbances' in the context
of amendments made and provided its
definition. However, no
observation/comparison vis-a-vis executive
authority of the government was under
challenge, therefore, the judgment being
inept is not applicable.

125. He next contended that the will of the

Government can be judged from the fact that
this Government has constituted JIT to dig
out the truth. He referred to p.49 of JIT
report to demonstrate that the Special
Branch, CID, IB, ISI, MI and Pakistan
Rangers are Federal agencies, have prepared
the reports and all these reports relate to this
year, so this is ample proof of the will of the
756
executive authority to bring back normalcy
in Karachi. It is important to note that this
report was neither filed by the
Provincial/Federal Governments nor the
learned counsel called for the same. It was
Syed Iftikhar Hussain Gillani, learned
Sr.ASC, who had filed this report, but in
view of the statement so made by the
learned counsel, it is abundantly clear that
with effect from the date of its compilation,
i.e. 31-3-2011, the Government being aware
of its contents remained silent. This report
contains horrifying facts. No one has
claimed its confidentiality. To ascertain the
willingness of the Federal or the Provincial
Governments to act on this report, life
history of one of the persons, namely, Ajmal
Pahari, without prejudice to him, is
reproduced hereinbelow:--

757
 TRAINING IN INDIAN TRAINING
CAMP

I along with .Zeeshan PIB Wala on the

direction of Nadeem Nusrat (London
Secretariat) went to Singapore in 1996.
When we reached Singapore I informed
Nadeem Nusrat and told my location.
Nadeem Nusrat told me that I must wait
and soon Jameel @ Jimmi will meet me
with next schedule. We stayed for one
week in hotel (name not remember) in
Mustafa Market. Jameel @ Jimmy came
to us from South Africa. Also Zeeshan
didn't know about the programme.
Jameel @ Jimmy take ours passport and
photograph. Jameel @ (sic) arrange
Indian Visa and send us via Singapore.
Airline. Sunny. who was escaped from
Karachi received us in India Delhi
758
 Airport, and took us to the house where
we stayed for 15 days. Then he took us
to the training center in a jungle near to
the Delhi

OTHER TRAINING OF PARTY

WORKERS IN INDIAN TRAINING
CAMP

When we reached at Indian Training

Center we meet Noora (Shah Faisal
Colony Wala), Zafar Tension Duffer
Zone Wala), Raja (North Nazimabad
Wala) Shakir Choota (Orangi Town) of
MQM A group.

MOTIVATION OF TRAINING IN
INDIA

759
 After completion of our training Sunny
brought different book on Revolution
and every. body had been motivated that
if we didn't get our rights then we have
to work under the Leadership of Altaf
Hussain and make our separate State by
unite Karachi and other major parts of
Sindh.

WEAPON TRAININGG DURING

THE SESSION

We wake up early in the morning for

exercise and running. After that we used
weapons in which we used AK 47, G-3,
MP-5, LMG Rocket launcher, Grenade
and other weapons. Our teacher also
trained original fire of rocket launcher
760
 last day of our training.

RETURN FROM INDIA TO

PAKISTAN

Sunny arrange Indian guide who took us

to Indian Punjab and one day at about 9'0
clock in evening we illegally crossed the
Indian border) and entered into Pakistan
area Shakar Garh with our Indian Guide.
Then that Indian Guide took us to Lahore
in Suzuki pick up and went back. Then
we came to Karachi in train (Rail).

MEETING WITH OTHER INDIAN

TRAINEES IN KARACHI

761
 I met Noora of Shah Faisal, Zafar
Tension of Buffer Zone, Shakir Choota
of Orangi Town in Karachi but I never
saw Raju of North Nazimabad in
Karachi."

Above named person has given details of 53

persons murdered by him from 1986 to
2000. Surprisingly, he also admitted murder
of Iqbal Raad Advocate, who was former
Advocate General, Sindh. He has also given
the details of murder of 58 persons after his
release from Jail in 2005. This document is
full of information, which he has disclosed.
The question here is not the veracity or
correctness of his statement. The question is:
what did the Federal Government or the
Provincial Government do on the basis of
this information. Of course the truth of the
statement has yet to be determined but it was
762
serious information of grave crimes in an
alleged confession. Inaction on the
statement, whatever its evidentiary value,
means a certain backing and cooperation
with criminal activity. However, on the basis
of this report, no action has been taken
against him as well as the organization with
which he showed his affiliation. According
to him, he had been getting training outside
the country in India, etc. The remarks of the
agencies of the Federal Government and
others, reference of which the learned
counsel for the Federation, are as follows:--

"The subject is a hard core and high

profile trained target killer affiliated with
MQM (A) Group, who „has been
involved in heinous crimes of murder,
attempt to murder, target killing, several
activities of creating law and order
763
 situation abduction, kidnapping,
extortion."

Without commenting on its evidentiary

value, at least when the Federal Government
is relying upon it through its learned
counsel, some weightage is to be given to it.
We posed a question to the learned counsel
that on the basis of above report, what action
so far was taken by the Government,
however, no explanation came forward.

126. It is to be noted that all criminals,

howsoever influential, have to be dealt with
across the board without any discrimination
or compromising the position of the law on
the subject. As we have already pointed out
hereinabove that instant proceedings are not
adversarial, therefore, one cannot discuss the
764
case of all those persons whose names, are
mentioned in the report, but for the purpose
of meeting argument of the learned counsel,
reference to one of the same has been given
with the observation that. no prejudice will
be caused to concerned persons as perhaps
he has to face trial in different cases. But
perusal of the report qua the argument raised
by the learned counsel showing the
willingness of the Federal Government to
take action in Karachi to control the law and
order does not appeal to us. Thus, we are
constrained to conclude that if an agency of
the Federal Government possesses such
overwhelming evidence, what could be the
reasons for taking no action against
concerned persons or organizations.

127. Learned counsel stated that every crime

committed constituted violation of the
765
Fundamental Rights one way or the other.
Bhatta, chanda, abduction, extra judicial
killing, etc., whenever committed, constitute
violation of the Fundamental Rights qua the
individuals against whom such crimes are
committed. According to him, the
Fundamental Rights of individuals have
been violated due to the rivalries between
the individuals, there are clashes or crimes
committed by individuals against individuals
and groups of individuals are pitched against
each other. Assuming argument of the
learned counsel is correct, then what is the
function of the 'Executive in respect of
protecting Fundamental Rights when there is
a violation. It is the duty of the Provincial
Government as well as the Federal
Government to protect and preserve the
Constitution, which confers such rights upon
individuals. When violation of the
Fundamental Rights is admitted, ultimately
766
blame lies with the executive authorities,
both Provincial and the Federal, for non-
implementation of their rights. In this behalf,
detailed discussion has been made
hereinabove. When the learned counsel for
the Provincial Government, Mr. Hafeez
Pirzada, ASC, calls upon this Court ""give a
wake up call" to his client, and the learned
'counsel of the Federal Government
concedes that a ""Call Attention Notice" can
be issued, what more needs to be said: If
they themselves admit that the Court's
reprimand is need, how can the
Governments concerned be defended?

128. Dr. Babar Awan, learned counsel stated

that the Federation had no intention to
invoke Articles 232 to 234 or Article 245 of
the Constitution presently. Undoubtedly, it
is for the Federation to take a decision, but if
767
any decision is taken, it would be strictly in
accordance with the Constitution. This Court
has time and again insisted that except
adherence to the constitutional provisions in
any situation prevailing in the country, no
extra-constitutional steps have to be
followed. In the neighbouring country, in
case of failure of constitutional machinery in
the States, Article 356 is attracted to deal
with the situation. This Article is identical to
Article 232 of our Constitution, therefore,
application of these provisions of the
Constitution is not alien to our system
because on more than one occasion the
Executive resorted to the same. Reference
may be made to Farooq Ahmed Khan
Leghari's case (supra) wherein it was held as
under:

"48. I am prompted to take above view

768
inter alia for the following reasons:

(i) That the above view fits in with the

above modern jurisprudential theory of
proportionality.

(ii) That as a rule of interpretation, the

Courts should make efforts to preserve
the Fundamental Rights of the citizens
while construing the Constitutional
provisions. This aspect, I intend to deal
with hereinafter while touching upon
the aforesaid second question in issue.

(iii) That those who have taken oath to

protect the Constitution, particularly,
the Judges of the Supreme Court and
the High Courts are bound by their oath

769
 and duties to act so as to keep the
provisions of the Constitution fully
alive and operative, to preserve it in all
respects, save from all defects or harm
and to stand firm in defence of its
provisions against attack of any kind as
held by this Court in the case of
Fazalul Quader Chaudhry (supra), in
which the view taken is in line with the
above Constitutional mandate.

(iv) That even in spite of suspension of

the enforcement of certain
Fundamental Rights under clause (2) of
Article 233 of the Constitution, Article
4 thereof remains fully operative which
lays down that "To enjoy the protection
of law and to be treated in accordance
with law is the inalienable right of
every citizen, wherever he may be, and
770
 of every other person for the time being
within Pakistan.

In particular--

(a) no action detrimental to the life,

liberty, body, reputation or property of
any person shall be taken except in
accordance with law;

(b) no person shall be prevented from or

be hindered in doing that which is not
prohibited by law; and

(c) no person shall be compelled to do

that which the law does not require him
to do:"

771
 as held by Salahuddin Ahmad, J. of this
Court in the case of Manzoor Ilahi (supra)."

In view of the peculiar circumstances

prevailing in Karachi, issuance of a large
number of arms licences, both prohibited
and non-prohibited, also seems to be one of
the reasons for not bringing normalcy in
Karachi and perhaps this is another reason
that after every 2 to 4 weeks, some incident
of torture, gang war, target killing, etc.,
takes place, which comes to an end after
taking heavy toll of life. The
Administration/Executive never realized the
untold miseries of the sufferers including
widows and orphans; therefore, the
executive is bound to attend to this aspect of
the case.

772
129. After the Court concluded the hearing
on 16-9-2011 another very tragic incident
took place in Karachi. A car bomb exploded
outside the house of Chaudhry Aslam, SSP
CID, in the Defence area of Karachi. Six
Policemen and a mother along with her
young son were martyred. Although this
crime is apparently, and prima-facie of a
different variety not related to the turf war or
ethnic strife in Karachi, there is something
to be learnt from it by the citizens of
Karachi. The vehicle that exploded at the
gate of the SP's House must have been
loaded with explosives and prepared with a
network of wires, fuses, projectiles such as
ball bearings or shrapnels, and triggers. A
sophisticated remote control device may
also have been needed although it is yet to
be determined conclusively whether it was a
suicide attack or not. One thing is clear that
773
the vehicle was loaded with explosives and
prepared for exploding in Karachi and
nowhere else. Surely it was not brought,
fully equipped and loaded all the way from
the FATA area with explosives, projectiles,
wires, fuses, triggers and remote control or
suicide oriented equipment. It was indeed
prepared in Karachi. All such vehicles and
suicide bombers are finally prepared and
equipped in our cities, not in FATA. Houses
are previously rented for this purpose and
rooms are taken in hotels. Whether the
vehicle was prepared in a workshop or a
house, the neighbours must have noticed
some strange or at least dubious movements
around and/or inside the workshop or house.
The same applies to other terrorists and
suicide attackers in Karachi, Lahore,
Rawalpindi, Peshawar, Quetta and other
cities of Pakistan. The vehicles and suicide
bombers and assault teams are all assembled
774
and prepared in our own neighborhoods and
Mohallas. These then go out and attack
Bazaars, shrines establishments, killing
innocent men, women and children. If the
citizens were vigilant and responsive, such
incidents could be prevented. They must
report suspicious activity. That is the best,
perhaps the only way to finish this menace.

No doubt the fear of reporting to some

extent is due to a lack of confidence in the
administration and the Police but that
confidence will have to be revived for the
mutual benefit of all. It is for the
Government to revive that confidence by not
using the administration and the police for
political or private ends. That is the
responsibility of the Government of the Day.
We have seen the beneficial and positive
effects of a depoliticized administration with
775
the intervention of the Court. It is now the
bounden duty of the government to continue
with this status and not deflect the
administration to its own benefit in
preference to the citizen. The Police must
also be cleansed of unmerited appointments.
We intend to keep an eye on this process
and will respond to any genuine complaint.

130. The morale of the police is low. Even

honest Policemen are demoralized. They are
caught between the devil and the deep blue
sea. On the one hand, they may be punished
for doing their duty if it runs counter to the
political objectives of the party in power and
on the other, they are afraid of being shot by
the persons they have apprehended or their
associates. They are conscious of the fact
that so many policemen who took part in the
operations of 1992 and 1996 have
776
disappeared or have been eliminated. It is
necessary, therefore, for the Police to fully
and impartially investigate and find out the
circumstances of each such
disappearance/elimination and provide a
detailed report to this Court in respect
thereof.

131. Thus, from the material produced

before the Court and the information
conveyed during hearing of the case by the
ISI followed by intensified arguments
advanced by the learned counsel appearing
for the Provincial and Federal Governments,
learned Attorney General, learned Advocate
General, learned counsel for the Province of
Sindh and learned counsel for the
interveners, the Inspector General of Police,
the DG Rangers, the Presidents of the Sindh
High Court Bar Association and the Karachi
777
Bar Association as well as all others, we --

Observe that violence in Karachi during

the current year and in the past is not
ethnic alone but it is also a turf war
between different groups having
economic, socio-politico interest to
strengthen their
position/aggrandizement, based on the
phenomenon of tit for tat with political,
moral and financial support or
endorsement of the political parties, who
are claiming their representation on
behalf of public of Karachi including
components and non-components of
Provincial Government/ Executive;

AND

778
Declare that recent violence in Karachi
represents unimaginable brutalities,
bloodshed, kidnapping and throwing
away dead bodies and torsos in bags; as
illustration, indicating toll of 306 lives in
one month; detection of torture cells
video of which has been produced;
receiving bhatta to strengthen the ranks
of one group against the other; grabbing
land; drug mafia etc., destroying
moveable and immovable properties of
the citizens, establishes that the
Fundamental Rights of the citizens
enshrined in Articles 9, 14, 15, 18 and 24
of the Constitution have not. been
protected/enforced by the Provincial
Government/Executive authority and this
failure has made the lives and properties
of the citizens insecure, inasmuch as
Federal Government/ Executive has also
not protected Province of Sindh against
779
internal disturbance, thus the government
of Province of Sindh, on this account,
too, failed to carry out functions in
accordance with the provisions of the
Constitution [Article 148(3)];

AND

Further observe that both the Provincial

and Federal Governments/Executives
have to find out solutions of the present
scenario as per provisions of the
Constitution:

AND

Further observe that to come out of

780
instant grave situation of law and order
in Karachi, police force being principal
law enforcing agency has to be de-
politicized and strengthened so that they
could, with full commitment, dedication,
zeal and zest, perform its bounden duty,
and unless there is a de-politicized
police, the situation of law and order is
likely to become more aggravated, no
sooner the assistance of Rangers is
withdrawn;

AND

We apprehend that any further failure to

protect the lives and property of the
citizens is likely to cause unprecedented
disaster, therefore, all efforts should be
made to avoid the same in the interest of
781
the nation and country, which is supreme
as per the mandate of the Constitution
and the law;

AND

Further observe that in respect of

banning any political party including
MQM, against whom all the interveners
mostly had voiced complaints is not
within domain of the Court at this stage
as in terms of Article 17(2) of the
Constitution every citizen, not being in
the service of Pakistan, shall have the
right to form or be a member of a
political party, subject to any reasonable
restrictions imposed by law in the
interest of the sovereignty or integrity of
Pakistan and it is the responsibility of the
782
Federal Government to act under Article
17 for action against any party violating
this Article. The Court will only review
such issue at any other appropriate stage
or proceeding if then necessary to
determine whether the actions of any
party are directly or indirectly prejudicial
to the sovereignty or integrity of Pakistan
within the meaning of the Article. The
Court will remain, in appropriate
proceedings, the ultimate arbiter of this
question but will not allow any
government to avoid its duty under the
law and the Constitution;

AND

Further observe that as per material

brought before the Court, there are
783
criminals who have succeeded in making
their ways in political parties
notwithstanding whether they are
components or non-components of
government, and are getting political and
financial support allegedly from such
parties, therefore, the political parties
should denounce their affiliation with
them in the interest of the country and
democratic set up and they should not
allow them to use their names as militant
outfits of the political parties. Failure to
do so may entail consequences of a penal
nature against the party or person
responsible, whether in office or not;

AND

Further observe that to avoid political

784
polarization and to break the cycle of
ethnic strife and turf war, boundaries Of
administrative units like police stations,
revenue estates, etc., ought to be altered
so that the members of different
communities may live together in peace
and harmony, instead of allowing various
groups to claim that particular areas
belong to them and declaring certain
areas as NO GO Areas under their
fearful influence. Subsequent thereto, on
similar considerations, in view of
relevant laws, delimitation of different
constituencies has also to be undertaken
with the same object and purpose,
particularly to make Karachi, which is
the hub of economic and commercial
activities and also the face of Pakistan, a
peaceful city in the near future. The
Election Commission of Pakistan may
also initiate the process on its own in this
785
behalf;

AND

Further observe that equal chances

should be provided to different
communities of Karachi to participate in
economic and commercial activities
instead of confining the same to different
political groups on the basis of parochial,
racial, tribal, sectarian, partisan and
provincial prejudices;

AND

Further observe that Karachi is full of

arms and ammunition of prohibited and

786
non-prohibited bores including licensed
and illicit, therefore, Karachi has to be
cleansed from all kinds of weapons by
adhering to the laws available on the
subject, and if need be, by promulgating
new legislation. All licensed arms
genuinely required for security concerns
and personal safety may be retained but
.these must also be registered with
NADRA. All other licenses, where such
need cannot be shown, or where multiple
licenses have been issued to the same
individual (as distinct from security
firms) if not justified, or which are used
for unnecessary display at ceremonies or
elsewhere for aerial firing should be
cancelled after summary and expeditious
proceedings in accordance with law;

AND
787
Further observe that there is a need for a
fresh comprehensive law to eliminate
and punish land grabbers and
encroachers. This is one of Karachi's
greatest problems. The Court has already
dealt with some cases Suo Motu and
otherwise, and will continue to do so
whenever necessary or appropriate.
Sometimes this Court is the last hope of
the citizens or a community which turns
to it for redress when all other avenues
are denied to them. But overall it is the
duty of both Governments to formulate
such law and initiate it in the appropriate
assembly; and thereafter to implement it
fully without showing any favour or
immunity to any person whether a
political favourite, ally or for any other
personal or party consideration;

788
 AND

Further reiterate that monitoring of the

criminal cases should take place in view
of the observations made in the case of
Sheikh Liaqat Hussain (supra). Besides,
the appointments of the Presiding
Officers of the Anti-Terrorism Courts
should also not be delayed for any
reason, as we experienced during the
hearing of the case that those
appointments were delayed for a period
of nearly two years. However, under the
direction issued by the Court, the
Presiding Officers were appointed and
we expect thins such delays shall not be
allowed to occur in future;

789
 AND

We observe that since innocent citizens

have lost their lives, number of which
comes to 1310 during the current year.
Similarly, a good number of citizens
have been injured and/or lost their
valuable property, both movable and
immovable, therefore, provincial
government/executive shall constitute a
Commission to assess their losses and on
its recommendation, compensation must
be paid to the sufferers without partisan
consideration, as early as possible;

AND

We direct that there must be no 'NO GO

790
AREAS' at all in Karachi. If any is found
or credibly reported to the Court the
Police and, if required by the Provincial
Government, the Rangers shall take
strong and decisive action to eliminate it.

Moreover, if such an area is proved to

exist to the satisfaction of the Court, we
may require the IGP himself, and if
necessary the DG Rangers also, to
personally lead the operation into such
areas. The Police and Rangers are
therefore, expected to conduct the on-
going operation across the board without
showing any favour to any one and
without being influenced from any
quarter, be it political or otherwise. In
case they are asked to obey any illegal
orders, or to show leniency to any
criminal, it will be their duty to bring it
791
to the notice of the Court and appropriate
orders will be passed accordingly;

AND

Further direct that an independent and a

depoliticized investigation agency be
deputed to conduct investigation of cases
fairly, honestly and without being
influenced in any manner. Similarly, the
prosecution agency comprising
competent prosecutors and the Provincial
.Government/Executive must provide
protection to the witnesses so that they
may depose against the perpetrators of
crimes without any fear, enabling the
courts to decide cases against them in
accordance with law. The prosecutors,
particularly for the Anti-Terrorism
792
Courts should be appointed in a highly
transparent manner according to the
Constitution and the law. Appointments
of prosecutors are required to be
undertaken without any political whims
and considerations;

AND

Further direct that DG NADRA and the

IGP will set up a special joint cell with
specialized officials and experts along
with sufficient manpower to establish
several teams to visit on the spot and
identify illegal foreigners so that they
may be dealt with strictly in accordance
with law after a proper hearing and
opportunity to present proof of their
citizenship. They should attempt to
793
conclude this exercise preferably in one
year;

AND

Further direct that the IGP shall collect

the record and facts about the
disappearance or elimination of all police
and other officials who took part in the
Karachi operations of 1992 and 1996 or
were witnesses in ethnic or related
crimes and present a report to the Court
within the next one month also showing
whether their families were compensated
or not;

AND

794
Further direct that the Provincial
Government shall place on record of the
Court copies of all judicial inquiries
instituted in the matter of law and order
in Karachi since 1985. These shall be
retained for perusal and for any
necessary action or appraisal of the
situation at any time in the future;

AND

Further observe that the Provincial

Government/Executive shall 'ensure
smooth running of economic and
commercial activities and shall take
necessary steps that the protection is
provided against uncalled for and illegal
shutter down and strikes to the
businessmen. During arguments, it was
795
also brought to our notice that due to
illegal strikes and shutter down calls, the
normal life of citizens of Karachi is
paralyzed, and allegedly it causes loss of
billions of rupees in a day, therefore, it is
observed that the Government and the
political parties shall evolve a
respectable way out to avoid such a
situation in future;

AND

Finally, it is directed that a Committee be

constituted by the Provincial
Government/Executive, headed by the
Chief Justice of Sindh High Court, who
shall be assisted by the Chief Secretary,
the heads of the security agencies i.e.
para-military organizations and I.G.
796
 Police, to supervise and ensure that law
enforcement agencies take action
indiscriminately, across the board against
the perpetrators involved in causing
disturbances in Karachi. The Chief
Justice shall convene the meeting at least
once in a month to review the
implementation of this judgment and
copy of the proceedings shall be
transmitted to the Registrar of this Court
for our perusal and passing appropriate
orders at a later stage, if need be.

132. In view of above

declarations/observations, instant Suo Motu
proceedings as well as Constitution Petition
No. 61 of 2011 under Article 184(3) stand
disposed of while parting with the saying of
James Bryce that "Our country is not the
only thing to which we owe our allegiance.
797
It is also owed to justice and to humanity.
Patriotism consists not in waving the flag,
but in striving that our country shall be
righteous as well as strong."

M.A.K./S-53/S Order
accordingl

798
 Judgments of Federal Shariat Court of
Pakistan on Human Rights in Islam

P L D 2011 Federal Shariat Court 1

Before Agha Rafiq Ahmed Khan, C.J., Syed

Afzal Haider and Shahzado Shaikh, JJ

Mian ABDUR RAZZAQ AAMIR and others---

Petitioners

Versus

FEDERAL GOVERNMENT OF ISLAMIC

799
 REPUBLIC OF PAKISTAN and others---
Respondents

Shariat Petitions Nos.1/I, 3/I of 2007 and 1/I

of 2010.decided on 22nd December, 2010.

(a) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Nature---Exclusive
jurisdiction conferred by constitutional
provisions can neither be curtailed nor
regulated by subordinate legislation.

800
(b) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Scope---"Hudood"---
Meaning and scope---Determination of
meaning and scope of the term "Hudood"
as well as the exercise to identify the
categories of offences and civil matters
regarding the life of Muslims which fall in
the ambit of "Hudood" is the sole preserve
of Federal Shariat Court.

(c) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

801
Sharait Court---Scope---All the matters
connected with or the steps leading up to
the commission of offences covered by
"Hudood" ipso facto fall within the
jurisdiction of the Federal Shariat Court.

(d) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Nature and Scope---Federal
Shariat Court, as mandated by Art.203-D of
the Constitution, is the only forum to
examine any law or provision of law or any
custom or usage having the force of law on
the touchstone of Injunctions of Islam.

802
(e) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court to adjudicate upon bail
matters in cases covered by "Hudood"-
Scope---Adjudication upon bail matters in
cases covered by "Hudood" is certainly
ancillary to the trial, appellate and
revisional jurisdiction and hence cognizable
by Federal Shariat Court.

(f) Constitution of Pakistan---

----Art. 203-DD---Re visional and other

803
jurisdiction of Federal Shariat Court---
Analysis of Art.203-DD of the Constitution--
-Exclusive jurisdiction of Federal Shariat
Court, mandated by the Constitution,
revolves around the term "the enforcement
of Hudood".

An analysis of Article 203-DD indicates that:

(i) the Federal Shariat Court has the

exclusive jurisdiction to call for and
examine the record of;

(ii) any case decided by any criminal court

under any law relating to the
804
 enforcement of Hudood;

(iii) for the purpose of satisfying itself as to

the correctness, legality or propriety of
any finding, sentence or order
recorded or passed ' by and as to the
regularity of any proceedings of such
Court;

(iv) the order under examination by the

Federal Shariat Court or challenged
before it may be in the nature of grant
or refusal of bail by the trial Court;

(v) and the Court may for that purpose

805
 call for the record of the case;

(vi) while so doing the Court may suspend

execution of the sentence;

(vii) direct release on bail or on his own

bond if the accused is in confinement
pending examination of record; and
further;

(viii) the Federal Shariat Court may, as a

result of examination of record pass
such order as it may deem fit;

806
 (ix) and may even enhance the sentence
subject of course, to notice.

It is, therefore, clear that the exclusive

jurisdiction of the Federal Shariat Court,
mandated by the Constitution, revolves
around the term "the enforcement of
Hudood."

(g) Constitution of Pakistan---

----Art. 203-DD--- "Hudood "---Connotatin

and significance.

807
Ayah 187 Surah 2 (al-Baqrah) Holy Quran;
Ayah 229 Surah 2 (al-Baqrah) Holy Quran;
Ayah 230 Surah 2 (al-Baqrah) Holy Quran;
Ayaat 1 through 12, 13 and 14 Surah 4 (An
Nisa) of Holy Quran; Ayat 97 Surah 9 (Al
Taubah) of Holy Quran; Ayah 112 Surah 9
(At-Taubah) of Holy Quran; Ayah 4 Surah 58
(Al-Mujadalah) of Holy Quran; Ayah 1 Surah
65 (Al-Talaq) of Holy Quran; Ayah 103 Surah
10, Younas of Holy Quran; Ayah 47 Surah
30, Ar-Rum of Holy Quran; Ayah 182, Surah,
Al-Aaraf; Ayah 42 Surah 8, Al-Infaal of Holy
Quran; Sahih al Bukhari, Kitab al Hudood,
Vol. VIII, Hadith No.769; Sahih al Bukhari,
Kitab al Hudood, Vol. VIII, Hadith Nos.779,
812, 831, 832, 833, 1744, 1745, 1746;
Traditions No.969 and 970 Sunan Abu Daud;

808
Tradition No.1976 Vol. 3, Sunan Abu Daud;
Sahih Muslim Jild II, Hadith No.1600; Hadith
No.269 in Kitab Salat ul Musafareen; Ayat
112, Sura 3, Ale-Imran of Holy Quran; Ayat
15 Surah 6, Al-Anam; Ayat 32 Surah 17, Bani
Israeel and Ayah 43, Surah 4, An Nisa ref.

(h) Constitution of Pakistan---

----Art. 203-DD---Words "relating to the

enforcement of Hudood" as used in
Art.203-DD of the Constitution---Meaning
and connotation.

The words used in Article 203-DD of the

809
Constitution are: "relating to the
enforcement of Hudood." Like the words
"in respect of" or "with reference to"
employed in some statutes, these words
have a wider meaning and connotation. The
words "relating to" includes all those
matters which pertain to the realm of
preparation, intention, attempt and all
conceivable steps taken towards the
commission of an offence. Such steps and
actions on fulfilment, have the potential of
being covered by the penalty of Hudood if
the requisite evidence, prescribed for proof
of Hadd, is made available. Short of that
proof the action complained of becomes
punishable as tazir for an offence which is
of the specie of Hadd. Tazir punishment- is

810
in lieu of Hadd and is not the consequence
of a separate category of offence.

(i) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Scope---Term "enforcement
of Hadd" occurring in Art.203-DD of the
Constitution---Scope---Zina---Rape---
Whether it is a case of consensual extra-
marital sexual activity, or incestuous
adultery or any related pursuit ancillary and
akin to or leading upon extra-marital sexual
activity, the investigation, enquiry or trial of
such a matter is covered within the scope
of the term "enforcement of Hadd" and
811
hence in the exclusive jurisdiction of
Federal Shariat Court---Principles.

(j) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Scope---Jurisdiction or
power conferred by constitutional
apparatus can be taken away only through
an express constitutional amendment and
nothing short of that---Ordinary statute
cannot take away powers of a superior
court conferred by Constitution---Such a
statute is ex facie discriminatory---
Principles.

812
A legal instrument which bars a court from
taking cognizance of offences or hearing
appeals and revisions not only affects the
jurisdiction of the court but seriously
jeopardizes the fundamental right of an
aggrieved person to have access and
recourse to speedy justice. Jurisdiction
conferred by a constitutional provision
cannot be erased by ordinary piece of
legislation. It is an accepted principle of law
that jurisdiction of superior court cannot be
taken away except by express words. In
particular a jurisdiction or power conferred
by constitutional apparatus can be taken
away only through an express constitutional
amendment and nothing short of that. An
813
ordinary statute cannot take away powers
of a superior court conferred by
Constitution. Such a statute is ex-facie
discriminatory.

(k) Constitution of Pakistan---

----Art. 203-DD---"Hudood"---Scope and

extent---Term "Hudood" on the civil side
includes marital life, the mandatory bridal
gift commonly known in Pakistan as Haq-e-
Mehr, inheritance, guardianship of person
and property of minors and persons with
defective legal capacity, marriages (in
particular polygamy), divorce including
Khula and Ziher.
814
(l) Constitution of Pakistan---

----Art. 203-DD---Jurisdiction of Federal

Shariat Court---Scope---Term "Hudood"---
Scope---Those offences, whose punishment
was either prescribed or left undetermined
but it relates to acts forbidden or made
cognizable by Holy Quran, Sunnah,
Consensus or by subsequent legislative
instruments including all those acts which
according to the Statute Book of Pakistan
are akin, auxiliary, analogous or
supplementary to or germane with
"Hudood" offences including preparation or
abetment or attempt to commit such

815
offences, would, without fail, fall within the
meaning and scope of the term "Hudood"-
Proceeding arising out of a private
complaint, crime report registered with
police as F.I.R., information laid before a
Magistrate by a person other than a police
officer or upon its motion by a judicial
officer or judicial proceedings arising out of
an interim order or final verdict of acquittal
or conviction in relation to an offence
covered by the term "Hudood", whether in
the form of an appeal, revision or reference,
would fall within the jurisdiction of Federal
Shariat Court---Legislation in Muslim
societies in the uncovered field has been
made permissible as is evident from the
principle Hablin Min un Naas. enunciated in

816
Ayat 112 of Sura 3 Ale Imran---Word
"Habal" does not only mean rope but it also
means command and mandate---State is
therefore competent to promulgate laws to
implement and enforce Injunctions of
Islam.

Ayat 112 of Surah 3 Ale-Imram ref.

(m) Protection of Women (Criminal Laws

Amendment) Act (VI of 2006)---

----Ss. 11 & 28-Offence of Zina

(Enforcement of Hudood) Ordinance (VII of
1979), S.3---Offence of Qazf (Enforcement
817
of Hadd) Ordinance (VIII of 1979), S.19---
Constitution of Pakistan, Arts.203-DD, 203-
D & 203-A---Repugnancy to the Injunctions
of Islam and the Constitution---Introduction
of Ss.11 & 28 of the Protection of Women
(Criminal Laws Amendment) Act, 2006 is an
unwarranted inroad in the legislative
domain and consequently an unlawful
interference to Hudood---Provisions of
Ss.11 & 28 of the Protection of Women
(Criminal Laws Amendment) Act, 2006 is
repugnant to the Constitution as well as
Injunctions of Islam---Section 3 of Offence
of Zina (Enforcement of Hudood)
Ordinance, 1979 and S.19 of Offence of
Qazf (Enforcement of Hadd) Ordinance,
1979 shall be deemed not to have been

818
repealed and are as valid and essential part
of the two Hudood Laws---Federal Shariat
Court directed that present declaration
shall take effect as from 22nd June, 2011 by
which date necessary steps be taken by the
Federal Government to amend the
impugned laws in conformity with the
present declaration whereafter the
impugned provision shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on
22-6-2011.

Section 11 of Woman Protection Act, 2006

has omitted section 3 of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979.
Section 3 before repeal read as follows:--
819
"Ordinance to override other Laws.---The
provision of this Ordinance shall have effect
notwithstanding anything contained in any
other law for the time being in force."

Section 28 of the Protection of Women

(Criminal Laws Amendment) Act, 2006 has
omitted the similar text contained in
section 19 of Offence of Qazf (Enforcement
of Hadd) Ordinance, 1979. Both the omitted
sections had given overriding effect to the
provisions of Ordinances VII and VIII of
1979. These were non obstante clauses
which had created exceptions. This
protective cover to the Hudood Laws of

820
1979 was further strengthened by Chapter
3A, Part VII of the Constitution which had
introduced Article 203-A in the Constitution
from 26th May, 1980. Thereafter Article
203-DD in the present form, was
incorporated in the Constitution in the year
1982. Section 3 and section 19 of the said
two Hadood Ordinances thus acquired
constitutional protection which could not
have been repealed/omitted or even
amended by Act VI of 2006. Moreover the
effect of sections 11 and 28 of the Act is to
curtail the constitutional jurisdiction
guaranteed in Article 203-DD of the
Constitution and this step cannot be legally
undertaken through ordinary legislation.
The effect of constitutional protection can

821
be altered only through constitutional
amendment and not otherwise. As a result
thereof the introduction of sections 11 and
28 of the Protection of Women (Criminal
Laws Amendment) Act, 2006 is an
unwarranted inroad in the legislative
domain and consequently an unlawful
interference in the enforcement of
"Hudood". Hence it is repugnant to the
Constitution as well as Injunctions of Islam.
Section 3 of Ordinance VII of 1979 and
section 19 of Ordinance VIII of 1979 shall be
deemed not to have been repealed and are
as valid and essential part of the two
Hudood laws.

The declaration relating to Protection of

822
Women (Criminal Laws Amendment) Act,
2006 (Act VI of 2006); The Control of
Narcotic Substances Act, 1997 as well as
Anti-Terrorism Act, 1997 shall take effect as
from 22nd June, 2011 by which date
necessary steps be taken by the Federal
Government to amend the impugned laws
in conformity with this declaration
whereafter the impugned provision shall
cease to be effective and this judgment of
the Federal Shariat Court will be operative
as on 22-6-2011. The other items of the
Declaration become operative forthwith.

(n) Constitution of Pakistan---

823
----Arts. 203-DD, 203-A & 203-D---
Jurisdiction of Federal Shariat Court in bail
matters---Bar of jurisdiction---Power
exercised by Federal Shariat Court under
the Constitution overrides all laws---Article
203-A of the Constitution states that
provisions of Chap.3A of Part VII of the
Constitution shall have effect
notwithstanding anything even in the
Constitution---Matter of bail is related with
the offence---Bail is applied for by an
accused only when an offence is alleged to
have been committed---If an offence is
covered by Hudood the trial takes place
under the law relating to Hudood---Appeal
or revision in such proceedings is therefore
within the cognizance of Federal Shariat

824
Court---Order of grant or refusal to grant
bail in such offence is therefore part of
proceedings of trial of "Hudood" cases and
hence cognizable by Federal Shariat Court
alone---Order on an application for grant or
refusal of bail by Trial Court in all categories
of offences within the ambit of "Hudood" is
covered by the term proceedings, as
employed in Art.203-DD of the Constitution
and hence within the scope of the terms
"any case", "any criminal court" and "under
any law" and therefore can be impugned
only before the Federal Shariat Court which
has the exclusive jurisdiction in all sorts of
matters related with enforcement of
"Hudood"---No other court, including a High
Court, will, in future, entertain proceeding

825
relating to bail in offences covered by the
term "Hudood"---Principles.

Muhammad Rafiq and others v. the State

PLD 1980 Lah. 708; Zahoor Elahi v. State
PLD 1977 SC 273; Malik Ghulam Jilani v.
Government of Pakistan PLD 1967 and
Government of Pakistan v. Begum Agha
Abdul Karim Shorish Kashmiri PLD 1969 SC
14 ref.

(o) Constitution of Pakistan---

----Art. 203-G---Bar of jurisdiction---Ouster

of jurisdiction particularly of a superior
826
court has to be stated in very clear terms---
Jurisdiction vesting in a court by virtue of
constitutional provisions undoubtedly
stands at a higher level and cannot be
curtailed by routine legislation---
Constitutional bar mandated by Art.203-G
of the Constitution needs careful
consideration which mandates that "no
court or tribunal including the Supreme
Court and a High Court, shall entertain any
proceedings or exercise any power or
jurisdiction in respect of any matter within
the powers or jurisdiction of the court".

(p) Control of Narcotic Substances Act (XXV

of 1997)---

827
----Ss. 9, 48, 49 & 51---Anti-Terrorism Act
(XXVII of 1997), Ss.25 & 21-D---Constitution
of Pakistan, Art.203-DD---Jurisdiction of
Federal Shariat Court charged with
"Hudood" offences and grant or refusal of
bail---Scope---Offences relating to narcotic
drugs are within the purview of "Hudood"
and consequently an order, final or interim
including grant or refusal of bail, passed by
any court, special or ordinary, under any
law, regarding an offence relating to
"Hudood" is within the jurisdiction of the
Federal Shariat Court and no other court,
including a High Court, has the power to
entertain bail matter or an appeal or
revision in any such matter---Federal
828
Shariat Court directed . that text of Ss.48 &
49 of Control of Narcotic Substances Act,
1997 has now to be suitably amended to
restore jurisdiction of Federal Shariat Court
in matters relating to enforcement of
"Hudood"-No legal instrument, other than
constitutional amendment, can limit or
ignore the exclusive jurisdiction of Federal
Shariat Court mandated under Art.203-DD
of the Constitution---Similarly if an offence
of the nature of "Hudood" is tried under
Anti-Terrorism Act, 1997 the appeal in all
such cases under S.25 of the said Act, or for
that matter bail under S.21-D of the said Act
shall lie before the Federal Shariat Court
and not a High Court---Federal Shariat Court
directed that consequently two steps will

829
have to be taken to set the matter right that
words "Federal Shariat" shall be substituted
for the words "High Court" occurring in
Ss.48(i) and 49(i) of Control of Narcotic
Substances Act, 1997 and that a rider will
have to be put in S.25 of the Anti-Terrorism
Act, 1997 to state that appeal in cases
relating to Hudood shall lie to the Federal
Shariat Court---Any order, interim or final,
passed by a Court constituted under Anti-
Terrorism Act, 1997, in relation to a Hadd
offence, shall be appealable or revisable
only before the Federal Shariat Court---
Wordings of S.25 Anti-Terrorism Act, 1997
should be suitably amended to make it clear
that a High Court shall have jurisdiction in
all cases under the Act except "Hudood"

830
matters---Present findings shall become
operative after the specified period---Ss.48
& 49 of Control of Narcotic Substances Act,
1997 and S.25 of Anti-Terrorism Act, 1997
are violative of Art.203-DD of the
Constitution to the extent that the
jurisdiction of the Federal Shariat Court is
ousted in matters relating to grant of bail or
hearing appeals or ordering transfer of
cases from one court to another court in
cases registered or charged with "Hudood"
offences---Federal Shariat Court directed
that present declaration shall take effect as
from 22nd June, 2011 by which date
necessary steps be taken by the Federal
Government to amend the impugned laws
in conformity with the present declaration

831
whereafter the impugned provision shall
cease to be effective and present judgment
of the Federal Shariat Court will be
operative as on 22-6-2011.

(q) Protection of Women (Criminal Laws

Amendment) Act (VI of 2006)---

----Ss. 25 & 28---Offence of Qazf

(Enforcement of Hadd) Ordinance (VIII of
1979), S.14(3)(4)---Dissolution of Muslim
Marriages Act (VIII of 1939), S.2(vii)(a)---
Constitution of Pakistan, Art.203-DD---
Repugnancy to Injunctions of Islam---Lian---
Section 25 of the Protection of Women
(Criminal Laws Amendments) Act, 2006 has
832
repealed subsections (3) and (4) of section
14, Qazf (Enforcement of Hadd) Ordinance,
1979 and S.28 of the Protection of Women
(Criminal Laws Amendment) Act, 2006 adds
clause (vii)(a) Lian in S.2 of the Dissolution
of Muslim Marriages Act, 1939---Both the
interpolations have altered the legal
composition of the Institution of Lian which
developed on the basis of express
injunctions of Holy Quran---Section 14 of
Qazf (Enforcement of Hadd) Ordinance,
1979 had in fact given legislative effect to
an Injunction of Islam---Effect of repealing
subsections (3) and (4) of S.14 of Qazf
(Enforcement of Hadd) Ordinance, 1979 is
to stifle the operation of an Injunction of
Holy Quran relating to the enforcement of

833
"Hudood" which is not only repugnant to
the Injunctions contained in Ayaat 44, 45
and 47 of Surah 5 and Surah An-Nur but is
also a clear violation of Art.203-DD of the
Constitution---Similarly section 28 of
Protection of Women (Criminal Laws
Amendment) Act, 2006 becomes repugnant
to the Quranic Injunctions---Said repeal
effected by the Act, is in utter violation of
the Injunctions of Islam---Federal Shariat
Court directed that present declaration
shall take effect as from 22nd June, 2011 by
which date necessary steps be taken by the
Federal Government to amend the
impugned laws in conformity with present
declaration whereafter the impugned
provision shall cease to be effective and

834
present judgment of the Federal Shariat
Court will be operative as on 22-6-2011.

Ayaat 4 through 9 of Surah 24 An-Nur and

Ayaat 44, 45 and 47 of Surah 5 and Surah
An-Nur ref.

(r) Constitution of Pakistan---

----Arts. 203-DD & 203-D---Classification of

punishments and offences covered by
`Hudood'---Term "enforcement of Hudood"
as used in Art.203-DD of the Constitution---
Analysis---Constitution has created only one
forum under the designation of Federal
835
Shariat Court, which has the exclusive
jurisdiction (Art.203-D) to examine the
question whether any. law is repugnant to
the Injunctions of Islam, it is, therefore the
domain of the Federal Shariat Court to
examine the question of repugnancy of any
law to the Injunctions of Islam---Definition
of term "Hudood", as may be settled in the
light of Injunctions of Islam by the Federal
Shariat Court will, therefore, determine the
meaning of the term as well as the extent of
its jurisdiction---Term "Hadd" means a
punishment "ordained by Holy Quran or
Sunnah "---Principles.

Ayaat 178, 179, 194, Surah 2 (Al-Baqarah);

Ayah 45 Surah 5 (Al-Maidah); Ayah 24 Surah
836
4, An-Nisa of Holy Quran and Asma Jilani v.
Government of Punjab PLD 1972 SC 139 ref.

(s) Constitution of Pakistan---

----Arts. 203-D & 227---Powers, jurisdiction

and functions of the Federal Shariat Court---
Scope---Term "Hudood" has to be defined
in the light of Injunctions of Holy Quran and
the Sunnah.

Chapter 3-A of Part VIII of the Constitution,

dealing with the Federal Shariat Court,
contemplates very vividly that the Federal
Shariat Court, shall be guided in its
837
decisions and findings by the Injunctions of
Islam as laid down in the Holy Quran and
the Sunnah of the Holy Prophet (PBUH).
Likewise, Article 227 (1) of the Constitution
prescribes that all existing laws shall be
brought in conformity with the Injunctions
of Islam as laid down in the Holy Quran and
the Sunnah and further that no law in
future shall be enacted which is repugnant
to these injunctions. The ultimate role of
examining the vires of an impugned legal
instrument on the touchstone of Injunctions
of Islam is therefore the exclusive preserve
of the Federal Shariat Court as mandated by
Article 203-D of the Constitution. The
Parliament is debarred from enacting a law
which is repugnant to the Injunctions of

838
Islam. This reality amounts to a declaration
in loud terms that the statute book of
Pakistan has to be in conformity with the
Injunctions of Islam and consequently the
term "Hudood" has, in fact, to be defined in
the light of Injunctions as laid down in the
Holy Quran and the Sunnah.

(t) Constitution of Pakistan---

----Art. 203-DD---Expression "Hudood"-

Meaning and Scope---"Hudood", in the field
of law, science, philosophy etc. assumes a
wider meaning than the actual dictionary
meanings and includes the term `Tazir'---
Offences covered by the term Hudood
839
enumerated.

Tashree ul Janai al Islam Vl. 1 at p.119; Ayah

90 Surah 16 of Holy Quran and Dr.
Muhammad Aslam Khaki v. Federation of
Pakistan PLD 2010 FSC 191 ref.

(u) Constitution of Pakistan---

----Art. 203-DD & 203-G---Enforcement of

Hudood---Revisional and other jurisdiction
of Federal Shariat Court---Scope---All
offences relating to Hudood are within the
exclusive jurisdiction of Federal Shariat
Court---All matters connected with Hudood
840
would, therefore, automatically be included
in the jurisdiction of Federal Shariat Court---
Powers conferred by the Constitution upon
Federal Shariat Court enumerated.

Article 203-G read with Article 203-DD(2) of

the Constitution establishes beyond doubt
that all offences relating to Hudood are
within the exclusive jurisdiction of Federal
Shariat Court. All matters connected with
Hudood would therefore automatically be
included in the jurisdiction of Federal
Shariat Court. This is precisely what is
meant by "enforcement of Hudood" as
prescribed in Article 203-DD of the
Constitution.

841
It is indeed true that all judicial powers are
lodged with the judiciary and wide powers
have undoubtedly been conferred by the
Constitution upon the Federal Shariat Court
which include:-

(a) To administer punitive and remedial

justice to and between parties subject
to Constitution and law;

(b) To exercise exclusive jurisdiction in

matters relating to examination of laws
on the touchstone of Injunctions of
Islam and in cases relating to Hudood

842
 laws;

(c) To exercise the special jurisdiction

without further legislative sanction;

(d) To define the scope and extent of its

jurisdiction within the parameters
identified in Chapter 3-A of Part VII of
the Constitution;

(e) To determine the meaning and scope

of the undefined terms used in Chapter
3-A of Part VII of the Constitution;

843
(f) To exercise powers of a civil court in
respect of certain matters;

(g) Authority to conduct its proceedings

and regulate its procedure in all
respects as it deems fit;

(h) To punish its own contempt;

(i)To make rules for carrying out the

purposes of Chapter 3-A of Part VII of
the Constitution;

(j) Exercising such other jurisdiction as

844
 may be conferred on it by or under any
law;

(k) To call for and examine the record of

any case decided by any criminal court
under any law relating to the
enforcement of Hudood; and

(l)Exclusive authority and the jurisdiction

to examine and decide the question
whether or not any law or provision of
law is repugnant to the Injunctions of
Islam as laid down in Holy Quran and
Sunnah.

845
(v) Constitution of Pakistan---

----Arts. 203-DD & 227---Offences falling in

the ambit of "Hudood"-Jurisdiction of
Federal Shariat Court---Scope---Terminology
employed in Art.203-DD of the Constitution
"any case"; "any Criminal Court" and "under
any law "---Scope.

It is necessary for a Judge to know the

meaning and the scope of the term law
because he is under oath to administer law.
He should be clear in his mind that the law
under consideration was made by an
authority legally competent to makes laws.
The Federal Shariat Court has the additional
846
but onerous constitutional responsibility to
examine whether the impugned law or
provision of law is in accordance with
Injunctions of Islam. This authority of the
Federal Shariat Court is necessary extension
of the mandate given in Article 227 of the
Constitution. The notion of legitimacy and
efficacy therefore becomes relevant
because not only the law making authority
should be legally competent but the law
should be capable of being enforced
according to the Injunctions of Islam and
the principles established by the
Constitution.

The ouster of jurisdiction of Federal Shariat

Court can be accomplished by only one
847
jurisdictional fact: that the act complained
of is not covered by the mischief of an
offence covered by the term "Hudood". If
however the impugned transgression falls in
the ambit of "Hudood" then the jurisdiction
of Federal Shariat Court cannot be ousted.
This element is the key to the question of
jurisdiction. It is immaterial whether the
offence complained of is mentioned in the
four Hudood laws of 1979 or any other law.
The issue stands settled by the terminology
employed in Article 203-DD any case; any
criminal court and under any law. The term
any case is relatable to all such offences
which might be covered in the definition of
"Hudood". All actions which are ancillary or
auxiliary or related to or germane to or

848
connected with offences falling in the ambit
of "Hudood" are also included in the term
any case related with "Hudood". Any case
also includes all those cases in which one of
the alleged offences is covered by the
definition of the term "Hudood". When a
matter has been dealt with by the
Constitution and it is not subject to any
statute then no statute can control or
curtail the power conferred upon a superior
court by the Constitution.

The State v. Khalid Mahmood PLD 1996 SC

42 ref.

(w) Constitution of Pakistan---

849
----Art. 203-DD---Exact nature and scope of
Art.203-DD of the Constitution---Nature of
Art.203-DD is self-executing and is not at all
different from the nature of Arts.184
through 190 as well 199,101 and 203 of the
Constitution---Article 203-DD confers power
upon the Federal Shariat Court to exercise
jurisdiction in all cases, pending or decided
by any criminal court under any law in
relation to the enforcement of "Hudood"-
Exclusive powers of judicial nature in
relation to matters pertaining to "Hudood",
a particular branch of administration of
Criminal Justice, have been conferred upon
the Federal Shariat Court to (i) call for and
examine the record of (ii) any case (iii)
850
decided by any criminal court (iv) under any
law relating to enforcement of Hudood---
Principles.

Hakim Khan v. Government of Pakistan PLD

1992 SC 595 ref.

(x) Constitution of Pakistan---

----Art. 203-D---Powers, jurisdiction and

functions of Federal Shariat Court---Term
`law' for the purpose of Art.203-D---
Connotation.

851
Kundah Bibi and 4 others v. Walayat
Hussain, Controller of Estate Duty,
Government of Pakistan and another PLD
1971 Lah. 360; Government of West
Pakistan v. Begum Agha Abdul Karim
Shorish Kashmiri PLD 1969 SC 14 and
Dudlay Corporation (1882) 8 QBD 86 (93,
94) by Brett, L.J. ref.

(y) Constitution of Pakistan---

----Art. 203-DD---Revisional and other

jurisdiction of Federal Shariat Court---
Contention that revisional power and not
appellate power was conferred upon the
Federal Shariat Court under Art.203-DD of
852
the Constitution was erroneous---Revisional
jurisdiction conferred upon Federal Shariat
Court, at constitutional plane, not only
encompass at one place the powers that
are exercised by an appellate court under
different sections of the Criminal Procedure
Code but at the same time, in exercise of
the same jurisdiction, the Federal Shariat
Court in its capacity as the revisional court,
has the additional potential of enhancing
any sentence if, after examination of the
record of any case decided by any criminal
court, it is convinced that punishment
awarded was scanty; it is for this reason
that Art.203-DD of the Constitution
conferred revisional jurisdiction alone on
the Federal Shariat Court because powers

853
of a revisional court are much wider than
that of the powers of an appellate court---
Power of Federal Shariat Court to order
retrial remains intact under the
constitutional provisions because "the
Court may pass such orders as it deems fit.
"; however in appropriate cases, in order to
save time, expense, and harassment the
Federal Shariat Court may straightaway
convict the accused, if after hearing him, it
finds that there is sufficient evidence on
record to do so.

Muhammad Babar v. Muhammad Akram

and 3 others PLD 1987 FSC 38 ref.

854
(z) Constitution of Pakistan---

----Art. 203-DD---Revisional jurisdiction of

Federal Shariat Court---Scope---"Revision"---
Scope in legal parlance---Article 203-DD of
the Constitution does not confer appellate
jurisdiction simpliciter upon the Federal
Shariat Court; it confers revisional and
other jurisdiction---Powers vesting in the
Federal Shariat Court under Art. 203-DD of
the Constitution with regard to any case
decided by any criminal court under any law
relating to the enforcement of "Hudood"
are all inclusive in nature---Statute may or
may not confer a right of appeal but the
Constitution has provided a permanent
remedy for every aggrieved person to
855
invoke revisional jurisdiction of the Federal
Shariat Court in appropriate proceedings---
Revision is a wider jurisdiction; this is what
the head-note of Art.203-DD indicates---
Term Revision includes re-examination, re-
assessment, careful reading over for
correction and improvement---Federal
Shariat Court has also to see whether
justice, as tempered by kindness, has been
done by the Trial Court---Such power of Adl
with Ihsan is not prescribed upon any
appellate court in the Code of Criminal
Procedure---Wide powers have been
conferred upon the Federal Shariat Court by
way of revisional jurisdiction to do
complete justice according to relevant
Injunctions of Islam in cases decided by any

856
criminal court under any law relating to the
enforcement of Hudood.

Ayat No.90 Surah 16, An-Nahl ref.

(aa) Constitution of Pakistan---

----Arts. 203-DD & 203-D---Revisional

jurisdiction of Federal Shariat Court---
Significance elaborated.

The term revision is wider in meaning and

scope than the term "appeal". The term
"revision" also includes revision of statutes

857
which in substance is the re-examination of
laws. It is different from an amendment. It
implies re-examination and restatement of
law. Legislators are often authorized by
constitutional provisions to revise and to
restate all the statute laws of a general and
permanent nature of the State up to a
certain date, in corrected and improved
form. This legislative function has been
conferred on the Federal Shariat Court to
undertake examination of laws on the
touchstone of the Injunctions of Islam. This
is precisely the jurisdiction of the Federal
Shariat Court under Article 203-D of the
Constitution. The Court at the same time
enjoys the jurisdiction under Article 203-D
to examine any law on its own motion.

858
There could be cases when the court is
called upon to exercise its jurisdiction under
both the Articles 203-D and 203-DD in one
and the same case. This special type of
jurisdiction is enjoyed only by the Federal
Shariat Court in the judicial hierarchy of
Pakistan.

The absence of the word "appeal" does not

in any way limit the widest possible
jurisdiction of the Federal Shariat Court
conferred upon it by virtue of Article 203-
DD of the Constitution which enables it to
call for and examine the record of any case
decided by any criminal court under any law
relating to the enforcement of Hudood. In
fact very wide powers have been conferred
859
upon the court by virtue of just one Article
of the Constitution without enumerating
twenty-eight sections in quick succession as
has been done .in Chapter XXXI of Part VII
of the Code of Criminal Procedure. The
Federal Shariat Court would, in view of this
constitutional provision, exercise widest
possible jurisdiction in cases decided by any
criminal court under any law relating to an
offence covered by the term Hudood. All
the recognized incidents of the term
"appeal" have been included in the powers
conferred upon Federal Shariat Court by
Article 203-DD of the Constitution under
the title Revision. The Constitution does not
concede such broad based revisional
powers to the High Courts. The revisional

860
jurisdiction of a High Court is certainly
dependent upon an enabling provision in
the Code of Criminal Procedure which can
be omitted, altered, substituted, or even
restricted by ordinary legislative measure.

The revisional jurisdiction conferred upon

Federal Shariat Court by Article 203-DD of
the Constitution is not a mere power but is
in essence a sacrosanct duty because the
said constitutional provision speaks in terms
of enforcement of "Hudood".

It is for the purposes of correcting

miscarriage of justice, doing substantial
justice, removing any illegality or perversity
861
that the Federal Shariat Court has been
clothed with vast powers under the title of
Revisional Jurisdiction. One of the
fundamental object of this jurisdiction is
that the Federal Shariat Court would watch
carefully that no Injunction of Islam relating'
to the enforcement of "Hudood" is violated
in any case by virtue of any order or
decision by any criminal court exercising
power under any law.

Existence of law is not sufficient. It is just

one aspect of administration of justice. The
emphasis of Holy Quran is- in fact upon
enforcing the law. Constitution, in
particular, has laid emphasis on
"enforcement of Hudood". Chapter 3A of
862
Part VII of the Constitution is the solitary
instance where the Constitution speaks in
terms of enforcement. This element of
enforcement only in relation to Hudood,
according to the Constitution, is the
exclusive domain of Federal Shariat Court
through revisional jurisdiction.

The jurisdiction of the Federal Shariat Court

under Article 203-DD not only refers to the
power to examine the record of any case
pending in a criminal court but also enables
it to examine the propriety of any decision
or order passed by any criminal court under
any law relating to "Enforcement of
Hudood". The word any means all, each,
and every case pending or decided and
863
each law under which the criminal Court
takes cognizance of a matter. The term "any
case" used in Article 203-DD is therefore
very wide and includes any matter which is
within the initial cognizance of the criminal
trial court. Any case therefore means any
matter under any law connected with the
"Enforcement of Hudood".

(bb) Constitution of Pakistan---

----Art. 203-DD---Terms "any case", "any

criminal court" and "any law" used in
Art.203-DD of the Constitution---
Connotation and Scope.

864
The word "any" has been used four times in
Article 203-DD of the Constitution. In clause
(1) the words are: "of any case," "any
criminal court" and "under any law" while in
clause (2) the words used are: "in any case".

The word 'any" as employed in Article 203-

DD has been expressed without any
qualification. The word any in the context in
Article 203-DD would mean: any person,
any court or any law under which a trial or
proceedings as regards offences relating to
Hudood are being held or have been
concluded. The word any is wide enough to
include every case, covered by the term

865
Hudood or related to Hudood and would
also cover situations when any case is
sought to be transferred in the manner and
circumstances visualized by sections 526
and 528 of the Code of Criminal Procedure.
The three terms i.e. "any case", "any
criminal court" and "any law" as used in
Article 203-DD not only tend to enlarge the
amplitude of the, term Hudood but lay
emphasis on the fact that all type of
proceedings related to offences covered by
the meaning and scope of the term Hudood
would remain the exclusive preserve of the
Federal Shariat Court. There is no earthly
reason to exclude any one matter
connected with the proceedings under
Hudood laws from the jurisdiction of the

866
Federal Shariat Court. Word "any" as used
in Article 203 DD is a word of "expansion
indicative of width and amplitude sufficient
to bring within the scope and ambit of the
words it governed, all that could possibly be
included in them.

Term criminal court used in Article 203-DD

is not restrictive in the sense as mentioned
in section 6 of the Code of Criminal
Procedure. It means any court exercising
criminal jurisdiction under any law of the
land relating to an offence in the domain of
Hudood. The term criminal court extends to
every category of Courts, Tribunals or
Authorities competent under any law of the
land to try and decide cases in which the
867
offence complained of pertains to Hudood.

Inamur Rehman v. Federation of Pakistan

1992 SCMR 563; Ch. Zahoor Elahi MNA v.
The State PLD 1977 SC 273; M. Amjad v.
Commissioner of Income Tax and 2 others
1992 PTD 513; N.-W.F.P. v. Muhammad
Irshad PLD 1995 SC 281 and Commissioner
of Income Tax v. Media Network PLD 2006
SC 787 ref:

(cc) Constitution of Pakistan---

----Art. 203-DD---Extent and scope of the

powers bestowed upon the Federal Shariat
868
Court by Art. 203-DD of the Constitution
summarized.

Following is the summary of the extent and

scope of the powers bestowed upon the
Federal Shariat Court by Article 203-DD of
the Constitution. The under mentioned
issues appear to have been contemplated:

(i) The jurisdiction of the court in respect

of enforcement of Hudood;

(ii) The responsibility of the court to

satisfy itself as to the correctness,
legality and propriety of any finding,
869
 sentence or order recorded or passed
by any court;

(iii) The power of the court to decide the

regularity or otherwise of any
proceedings related to enforcement of
Hudood;

(iv) The power of the court to direct

suspension of any sentence awarded
in cases relating to Hudood;

(v) Power of the court to release any

accused on bail;

870
 (vi) Power of the court to pass any order it
may deem fit in relation to any
proceeding related to the enforcement
of Hudood;

(vii) Power of the court to enhance any

sentence passed by any court in
relation to Hudood; and

(viii) Any other jurisdiction conferred on

the court by or under any law.

A cursory glance over the contents of

Article 203-DD clearly establishes that the
framers of Chapter 3A of Part VII of the
871
Constitution perceived a much broader role
for the Federal Shariat Court in relation to
Hudood. It was an all-inclusive role which is
certainly wider than mere customary
appellate jurisdiction.

The Constitution has made it certain that

the revisional jurisdiction conferred upon
the Federal Shariat Court by it is taken out
of the scope of ordinary legislative
functions of Majlis-e-Shoora. The
Constitution conceded not only wide
powers to the Federal Shariat Court but it
proceeded to protect these powers from
the vicissitude of legislative procedure
prescribed under Article 70 of the
Constitution. Additionally the Constitution
872
proclaimed that Federal Shariat Court shall
have such other jurisdiction as may be
conferred upon it by or under any law. The
consequence of this provision of the
Constitution is that the Government or the
Legislature has been restrained firstly from
omitting any item from the prescribed
jurisdiction of Federal Shariat Court in
matters relating to Hudood, and secondly
the additional power which may
subsequently be included in the jurisdiction
of the court under sub-Article (3) of Article
203-DD will be of the nature that it cannot
be taken away by routine legislative
measure. The additional jurisdiction,
whenever conferred would be saved by
constitutional provision. The Constitution

873
commands in unambiguous terms that
Federal Shariat Court shall, to the exclusion
of any other court in Pakistan, have
exclusive jurisdiction to control, supervise
and streamline the process of the
enforcement of Hudood under any law by
any court or judicial forum. In Article 203-
DD the term used is "enforcement of
Hudood" and not mere Hudood.

In this context the word enforcement

means the action of making sure that
people obey the Islamic law relating to
Hudood or the result of making sure that
people obey the law. The intent of the
authors of this constitutional provision is
clear. It confers wider powers and
874
jurisdiction on the Federal Shariat Court so
that not only the enforcement or
implementation of Hudood law is ensured
but judicial guarantee is provided to ensure
correctness, legality and propriety as well as
regularity of proceedings in relation to the
enforcement of Hudood as prescribed by
Injunctions of Islam in the administration of
criminal justice with a. view to protecting
Din, Life, Intellect, Progeny and Family as
well as the legitimately acquired property of
the citizens and the people of Pakistan. The
positive law must be aimed at protecting
and advancing the objectives of Shariah so
as to achieve a correct and proper
enforcement of Hudood. Laws have to be
implemented in that spirit. The Constitution

875
authorizes the Federal Shariat Court to
interfere and exercise its jurisdiction in any
case from any criminal court under any law
with a view to ensuring the correctness,
legality and propriety of such
implementation. The word enforcement
has been used by the Constitution only in
relation to offences relating to or covered
by the term Hudood. This is clearly wider
expression and includes all those steps
which may technically be termed as
appellate jurisdiction.

Even if the Parliament were to repeal

Prohibition (Enforcement of Hadd) Order
No. 4 of 1979, Offences Against Property
(Enforcement of Hudood) Ordinance (VI of
876
1979), Offence of Zina (Enforcement of
Hudood) Ordinance (VII of 1979) and
Offence of Qazf (Enforcement of Hadd)
Ordinance (VIII of 1979), even then the
Federal Shariat Court will continue having
exclusive jurisdiction, under Article 203-DD,
to call for and examine the record of any
case decided by any criminal court tinder
any law relating to the enforcement of
Hudood.

Oxford, Advanced Learner's Dictionary ref.

(dd) Constitution of Pakistan---

877
----Arts. 203-DD, 203-G & 203-GG---Intent
and purport of the Art.203-DD of the
Constitution.

The intent and purport of Article 203-DD of

the Constitution is to provide a single and a
central judicial forum which should have
exclusive jurisdiction of ensuring correct,
legal, proper and regular enforcement of
the laws of Hudood throughout Pakistan.
The word "revisional" appearing in the head
note of Article 203DD has not been used in
narrow and limited sense but it has been
used in a broader sense. The right of appeal
is conceded to an aggrieved party whereas
revision is conferring of power, privilege
and discretion upon the court to undertake
878
examination of proceeding of a lower
tribunal on the application of an aggrieved
person or on its motion. If this Article is
read with Articles 203-G and 203-GG, it
establishes beyond any shadow of doubt
that revisionary power includes the
appellate powers in relation to Hudood
laws and the enforcement of Hudood vest
in the Federal Shariat Court to the exclusion
of any other court in Pakistan. The words
"any power or jurisdiction in respect of any
matter within the power and jurisdiction of
the court" in Article 203-G makes it
abundantly clear that no court will exercise
appellate or revisional jurisdiction in
matters relating to enforcement of Hudood
except the Federal Shariat Court. The power

879
of a High Court to reverse an order of
acquittal into conviction, on appeal, is
stipulated only under section 417 of the
Code of Criminal Procedure but this power
which a High Court enjoys under a
legislative instrument is conferred upon the
Federal Shariat Court specifically through a
superior piece of legislation i.e. the
Constitution. The Constitution authorizes
the Court to convert an order of acquittal
into conviction. The Constitution therefore
preserves and consolidates all the legally
conceivable powers and jurisdiction in
Federal Shariat Court in all matters relating
to the enforcement of Hudood which any
other court may enjoy collectively as an
appellate and revisional court under

880
ordinary law.

Be it the Psalms of David, Gospel of Jesus,

Tables of Moses or the Scripture revealed
upon Muhammad PBUH, Allah Almighty
made His promise abundantly clear that the
weak and the oppressed, the meek and the
browbeaten shall inherit this earth. Allah
was Gracious to those who were oppressed
in the land and in His infinite mercy, He
made them leaders of humanity and helped
them succeed to the resources of this
world. The Righteous servants of God, in
turn, uphold the guiding principles and
permanent values ordained and preserved
in the Revelation and come forward to
implement the regulations proposed by the
881
Lord Creator. They do not hesitate to
implement and enforce the injunctions
prescribed by Allah.

Ayaat Nos. 133 and 165 of Surah No.6;

Ayaat Nos. 100, 130 and 134 of Surah No.7;
Ayah No.14 of Surah No.10; Ayah No. 57 of
Surah No.11; Ayaat Nos. 11 and 105 of
Surah 21; Ayah No.55 of Surah 24; Ayah
No.62 of Surah 27; Ayah No.5 of Surah 28;
Ayah No.39 of Surah 35; Ayah No. 26 of
Surah 38; Ayah No.38 of Surah 47; Ayah
No.7 of Surah 57 and Ayah No.41 of Surah
70 ref.

(ee) Constitution of Pakistan---

882
----Arts. 203-D & 227---Powers, jurisdiction
and functions of the Federal Shariat Court---
Foundation and Scope of Art.203-D of the
Constitution stated.

The basis of Article 203 D can be traced to

Ayaat 59 through 65 of Surah 4, An-Nisa.

A perusal of these Ayaat shows that the

following two standards have been
identified by Holy Quran for the resolution
of disputes, particularly between the
citizenry and the State:

883
 (i) The first point of reference is the
Word of God;

(ii) The second point of reference is the

Sunnah of the Holy Prophet PBUH;

Those who deny this procedure/process are

termed hypocrites by Holy Qur'an. The
nutshell of Ayah 62 Surah 4, An-Nisa and
Ayaat 47 through 52 is that those who do
not observe what Allah or His Chosen
Messenger PBUH has ordained may fall in
the category of Munafiqeen i.e. the
hypocrites. This is the situation which a
believer would certainly avoid in all
circumstances.
884
The message of the above mentioned seven
Ayaat of Surah 4 is restated with full
vehemence in Ayaat 43 through 50 of Surah
5, Al-Maida. The nutshell of the Divine
verdict in these Ayaat is that those who do
not judge between people in accordance
with what has been revealed are
Disbelievers, Wrong-doers and Evil-livers. It
is in this background that Article 203-D and
Article 227 of the Constitution of Pakistan
has to be understood, appreciated,
construed, interpreted and implemented.

Article 203D of the Constitution provides a

practical mechanism to:

885
(a) ensure implementation of the
mandate contained in Article 227 of the
Constitution that no law shall be
enacted which is repugnant to the
Injunctions of Islam contained in Holy
Quran or Sunnah;

(b) achieve the goal, visualized in clause

three of Objectives Resolution that the
Muslims shall be enabled to order their
lives in the individual and collective
spheres in accordance with the
teachings and requirements of Islam as
set out in the Holy Quran and Sunnah,
and

886
 (c) provide machinery at national level
not through an ordinary piece of
legislation but through the agency of
the fundamental law of Pakistan by way
of creating a superior court with
exclusive jurisdiction to undertake
solemn exercise of adapting the Statute
Book of Pakistan with Injunctions of
Islam.

The reason that a constitutional provision

has empowered the Federal Shariat Court
to examine laws on the touchstone of
Injunctions of Islam can be traced to Ayah
85 of Surah 28, Al-Qasas which proclaims

887
that Allah made the teachings of Holy
Quran binding upon the believers. The
other reason is furnished by Ayah 23 Surah
3, Ale-Imran, Ayah 105 Surah 4, An-Nisa;
Ayaat 44, 47 Surah 5, Al-Maidah; Ayah 114
Surah 6, Al-Anam. All these verses proclaim
that people should be judged according to
the teachings and principles handed over by
Revelation. Still another reasons is that the
Holy Quran proclaims itself as FURQAN i.e.
Distinguisher. In other words Quran is the
litmus test. Human conduct in Muslim
societies should not be apposed to the spirit
and teachings of the Holy Book.

(ff) Islamic jurisprudence---

888
----Ijtehad---Role in administration of
justice.

. The criteria for resolving conflicts among

people at judicial level is best illustrated by
the instructions given by Holy Prophet
PBUH to Maaz bin Jabel on the eve of his
appointment as Governor of Yamen.
Decisions were to be given in the light of
Injunctions contained in Holy Quran and if
no guidance was available in the primary
source, the judgment was to be based upon
the guiding principles provided by Sunnah
and in the absence of any precedent or
Injunction available in the above two basic

889
sources, then the judge was to undertake
Ijtehad i.e. application of mental faculties to
the maximum in resolving the issue without
violating the spirit of guiding principles
provided by two primary sources: This was
the first occasion when the term Ijtehad
was employed in the realm of
administration of justice by a Companion in
the presence of Holy Prophet (PBUH) who
approved it whole heartedly. This was the
time and occasion when the exercise of
Ijtehad for the resolution of disputes
received formal sanction. From that point
onward Ijtehad played an important role in
the evolution of Islamic jurisprudence and
the administration of justice.

890
(gg) Constitution of Pakistan---

----Arts. 203-GG, 189 & 201---Decision of

Federal Shariat Court---Nature and scope.

A careful reading of Article 203-GG as well

as Articles 189 and 201 of the Constitution
indicates that the Federal Shariat Court is
not bound even by its own decisions. There
is no institutionalized taqlid in so far as this
Court is concerned. It is the continuation of
the time honoured practice in Muslim
societies that the Judges were not bound by
previous decision in matters within the
ambit of uncovered field. The reason was
simple: In the given circumstances of a
891
situation when no legal provision was
available to resolve a controversy, an effort
to discover a remedy was resorted to by
undertaking Ijtehad in the larger interest of
Justice. Justice is indeed related to the
restoration of rights. Resolution of human
problems does not brook a vacuum. A still
better view is always possible on account of
practical experience gained by all the
stakeholders in the administration of justice
particularly on account of change of
conditions and circumstances. Human
thought is not stagnant. Human mind is a
dynamic faculty. It progresses and develops
by experience. The process of development
and evolution is ongoing. This course is not
static. Injunctions of Islam do not enjoin

892
negation of movement. Islamic teachings
beckon a person to look forward for a
better future.

The superior courts, particularly in matters

relating to Islamic jurisprudence, are under
an obligation to develop law in the light of
Injunctions of Islam as laid down in Holy
Quran and Sunnah. Exercise of Ijtehad
implies that the courts are not bound by
one interpretation in the uncovered field
for all times to come: Wisdom and saner
counsel is the common heritage of
humanity. The net result of incorporating
Article 203-GG is that any decision of the
Federal Shariat Court in exercise of its
jurisdiction, is binding on a High Court and
893
on all courts subordinate to such High
Court. The trial courts are subordinate to
provincial High Courts with the result that
the findings of Federal Shariat Court, as
regards its jurisdiction over trials relating to
enforcement of Hudood as well as its
interpretation and decisions shall be
binding on provincial High Courts and the
courts subordinate to the High Courts.

The phrase "to the extent that it decides a

question of law or is based upon or
enunciates a principle of law" mentioned in
Articles 189 & 201 of the Constitution is
conspicuous by omission in Article 203-GG.
It therefore means in very clear terms that
the ratio as well as dicta in a judgment of
894
the Federal Shariat Court is binding upon
the four provincial High Courts as well as all
the courts throughout the country as these
courts are subordinate to one or the other
High-Court. Any judgment, order or
decision delivered, passed or given by a
High Court or a court subordinate to a High
Court, contrary to the decision of Federal
Shariat Court will be a judgment per
incuriam. High Court has no jurisdiction
under section 561-A of the Code of Criminal
Procedure and Article 199 of the
Constitution in matters which fell within the
jurisdiction of Federal Shariat Court.
Decision of the High Court in such matters
was coram non judice. This jurisdiction of
the Federal Shariat Court therefore is

895
exclusive in nature and is not shared by any
superior Court/Tribunal created by the
Constitution.

Ayah 46, Surah 34, Saba; Zaheer ud Din v.

The State 1993 SCMR 1718; Auranzeb v.
Massan 1003 CLC 1020 and Hafiz Abdul
Waheed v. Mst. Asma Jehangir P1D 2004 SC
219 ref.

(hh) Constitution of Pakistan---

----Art.203-E(a)---Power of review by
Federal Shariat Court---Nature and Scope.

896
This power of review is not subject to any
Act of Parliament.

The vast power of review conferred upon

the Federal Shariat Court is in effect the
acceptance of the principle of IJTIHAD for
the development of Islamic Jurisprudence
through the agency of this court of original
jurisdiction. The objective in conferring this
power upon the Federal Shariat Court has it
genesis in Ayah 17 Surah 13, Ar-Rad, Holy
Qur'an.

The decisions of the Federal Shariat Court

are supposed to clean the existing law of
any dirt or possible trash.
897
Hazoor Bux v. Federation of Pakistan PLD
1981 FSC 145 and Federation of Pakistan v.
Hazoor Bux and 2 others PLD 1983 FSC 255
ref.

(ii) Constitution of Pakistan---

----Arts. 203-D & 203-C---Creation of

Federal Shariat Court---Purpose---
Declaration' in Holy Quran conceding the
protest of aggrieved person---
Administration of justice in Islam---
Principles.

898
The historic opening words of the first Ayah
of Surah Mujadilah is very significant as it is
the solitary instance in the history of
revealed literature where a woman,
aggrieved by an inhuman custom, having
the force of law, entered a caveat. Her
rights as a wife had been suspended
unilaterally by oral pronouncement made
by the husband. She lodged a protest
before Muhammad (PBUH), the head of the
nascent Islamic polity, because she knew
that Allah through His Apostle had the
power to promulgate, amend, change, alter,
substitute or even repeal any prevalent rule
or custom having the force of law. Her
supplication was answered. The prompt
revelation proclaimed:

899
 "O protesting lady! Your petition has
been heard."

This declaration is preserved in Holy Quran

as Ayah No.1 Surah 58, Al-Mujadilah. The
following principles of law can therefore be
deduced from this very Injunction of Islam:-

(i) Right of protest is conceded to an

aggrieved person;

(ii) Every person aggrieved of an inhuman

rule, law, custom or practice, having
the force of law, has a right to get it
900
 reviewed by competent authority;

(iii) The aggrieved person in such a

situation should have free access to
justice;

(iv) The aggrieved person shall have the

right of audience at the time of
initiating the complaint;

(v) The Authority is under an obligation to

probe into the complaint and may for
that purpose undertake examination
of any impugned law or practice;

901
 (vi) The Authority must examine the issue
and deliver a speaking and an effective
order; and

(vii) The Authority, may in the facts and

circumstances of the case not only
introduce necessary amendments in
law but may also provide a remedy to
rectify the wrong.

In this view of the matter the creation of

Federal Shariat Court is in fact practical
realization of the remedy contemplated by
Holy Quran for persons aggrieved by anti-
people laws and inhuman practices having
the force of law. The Federal Shariat Court,
902
in exercise of its jurisdiction under Article
203-D, in fact 'discharges the obligation
imposed by Ayah 103 of Surah 3, Ale-Imran
because the power todeclare a law to be in
conflict or otherwise to the Injunctions of
Islam is not only a message to the people to
follow what is good and avoid what is
wrong. The yardstick to determine what is
good or bad according to Muslim belief, is
certainly the Revealed principle.

Ayah No.1 Surah 58, Al-Mujadilah ref.

(jj) Constitution of Pakistan---

903
----Arts. 203-C, 228 & 227---Creation of
Federal Shariat Court and composition of
Council of Islamic Ideology---Object and
Scope.

The creation of the Council of Islamic

Ideology and the Federal Shariat Court in
due course of time after the .creation of
Pakistan, through constitutional apparatus
provides technical assistance/
recommendations to the
Parliament/Provincial Assemblies before
finalizing legislation while the Federal
Shariat Court examines, whenever any
question arises, any law or provision of law
on the touchstone of Injunctions of Islam
after a proposed Bill has materialized into
904
an Act. The Council of Islamic Ideology
appears to be an adjunct of the
Parliament/Provincial
Assemblies/President/Governor but it does
not provide remedies to general public. The
Federal Shariat Court is not part of the
legislative wing of the State but it has the
potential to provide relief to any person
who is aggrieved of or is critical of any
legislative measure. This court on the other
hand gives personal hearing to a petitioner
and undertakes an examination of the
question submitted for its consideration.
The procedure for invoking jurisdiction of
Federal Shariat Court is not only simple but
has been made inexpensive as well. Persons
desirous of seeking examination of a given

905
law or a provision of law or even custom,
having the force of law, may not be
permitted an ingress in the premises of
legislative bodies to demand review of
impugned legal instruments but the
Constitution has provided a forum at the
federal level to the citizens of Pakistan
enabling them to invoke its extraordinary
jurisdiction by making an application,
without stamp duty and claim examination
of any law, on the touchstone of Injunctions
of Islam without constraint of period of
limitation. The application for examination
can be made at any provincial head-quarter
or the principal seat of this Court at
Islamabad. Once a Shariat Petition is
submitted, it cannot be dismissed on the

906
sole ground of absence or death of the
petitioner. The Court may proceed with the
examination of the impugned law which has
been brought to its notice.

The creation of Federal Shariat Court is a

natural sequel to Article 227 of the
Constitution.

It is therefore abundantly clear that the

basic object of creating Federal Shariat
Court at the national level was to provide a
vigilant and effective forum to oversee that
no legal instrument, made enforceable in
the Federation, remains de hors the
Injunctions of Islam. This particular aspect is
907
in fact the practical realization of the
second part of clause (1) of Article 227 of
the Constitution of Pakistan which
proclaims that no law shall be enacted
which is repugnant to Injunctions of Islam.
The possibility of a legal provision, being
incorporated in a Federal or a Provincial
law, which is contrary to one or more
Injunctions of Islam, cannot be ruled out
because to err is human. The powers
vesting in the Federal Shariat Court to
examine the provisions of any law in fact
provide a speedy and an effective remedy
to rectify any error which might creep in
while drafting the legal instrument.

The power conferred upon the Federal

908
Shariat Court under Chapter 3A of Part VII
of the Constitution is mandatory. The
imperative nature of a decision of the court
is mentioned in Article 203-G of the
Constitution which states that the final
decision of the Federal Shariat Court is
binding on all the High Courts and on all
courts subordinate thereto. This is at par
with the obligatory nature of the decisions
of the High Court under Article 201 as well
as the provision contained in Article 189
which makes the decision of the Supreme
Court conclusive and binding on all other
courts in Pakistan. This power is therefore
more than what is visualized commonly
about mandatory statutes. Without even
alluding to the power of contempt

909
stipulated for the three above mentioned
constitutional courts it is discovered that
the intention of legislature was indicated in
unequivocal terms by mandating that the
order passed by courts have to be obeyed,
implemented and acted upon and further
that the jurisdiction mandated for these
three constitutional courts shall have to be
honoured and preserved. Clause (2) of
Article 5 of the Constitution states 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 in Pakistan.

Ayah No.1, Surah 58, Al-Majadalah of Holy

Quran; Ayah No.17 Surah 13, Ar-Raad of
910
Holy Quran and Ayah 111 of Surah 3, Al-e-
Imran ref.

(kk) Offences Against Property

(Enforcement of Hudood) Ordinance (VI
of 1979)---

----Preamble---Offence of Zina
(Enforcement of Hudood) Ordinance (VII of
1979), Preamble---Offence of Qazf
(Enforcement of Hadd) Ordinance (VIII of
1979), Preamble---Prohibition
(Enforcement of Hadd) Order (4 of 1979),
Preamble---Control of Narcotic Substances
Act (XXV of 1997), Preamble---Anti
Terrorism Act (XXVII of 1997), Preamble---
911
Penal Code (XLV of 1860), Preamble---
Constitution of Pakistan, Art.203-DD---
Revisional and other jurisdiction of Federal
Shariat Court---Scope---Final or interim
orders passed or judgments delivered by
trial courts exercising jurisdiction on
criminal side with regard to offences
covered by the term "Hudood", whether
mentioned in Offences Against Property
(Enforcement of Hudood) Ordinance, 1979;
Offence of Zina Enforcement of Hudood)
Ordinance, 1979; Offence of Qazf
(Enforcement of Hadd) Ordinance, 1979;
Prohibition (Enforcement of Hadd) Order,
1979; Control of Narcotic Substances Act,
1997; Anti Terrorism Act, 1997; Penal Code,
1860 or any other law for the time being in

912
force, can be challenged by way of appeal
or otherwise only before the Federal
Shariat Court and no other court of criminal
jurisdiction is competent to entertain and
adjudicate upon proceedings connected
with Hudood offences---Initiation of
proceedings to quash First Information
Report or pending criminal proceeding
related to Hudood matters are within the
exclusive jurisdiction of Federal Shariat
Court in view of the mandate of Art.203-DD
of the Constitution---Remedy against grant
or refusal of bail before or during the trial
of any of the above mentioned offences lies
before Federal Shariat Court alone and no
other court has jurisdiction to entertain any
proceedings in such matters---Federal

913
Shariat Court directed that present
declaration relating to Protection of
Women (Criminal Laws Amendment) Act,
2006, The Control of Narcotic Substances
Act, 1997 as well as Anti-Terrorism Act,
1997 shall take effect as from 22nd June,
2011 by which date necessary steps be
taken by the Federal Government to
amend the impugned laws in conformity
with present declaration whereafter the
impugned provision shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as
on 22-6-2011---Other items of the
Declaration become operative forthwith.

(ll) Protection of Women (Criminal Laws

914
Amendment) Act (VI of 2006)---

----Ss. 11, 28 & 29---Offence of Zina

(Enforcement of Hudood) Ordinance (VII of
1979), Preamble---Offence of Qazf
(Enforcement of Hadd) Ordinance (VIII of
1979), Preamble---Constitution of Pakistan,
Chap.3A, Part VII & Art.203-DD---Powers
and jurisdiction of Federal Shariat Court---
Vires of statute---Sections 11, 28 and 29 of
Protection of Women (Criminal Laws
Amendment) Act, 2006 have been found to
be violative of Art.203-DD of the
Constitution of Pakistan---Overriding effect
given to Offence of Zina (Enforcement of
Hadd) Ordinance, 1979 and Offence of Qazf
(Enforcement of Hudood) Ordinance, 1979
915
was doubly fortified as the provisions of
Chap.3A Part VII of the Constitution, which
deal with the powers and jurisdiction of
Federal Shariat Court, were mandated to
have effect notwithstanding contained in
the Constitution---Federal Shariat Court
directed that present declaration shall take
effect as from 22nd June, 2011 by which
date necessary steps be taken by the
Federal Government to amend the
impugned laws in conformity with present
declaration whereafter the impugned
provision shall cease to be effective, and
present judgment of the Federal Shariat
Court will be operative as on 22-6-2011.

(mm) Control of Narcotic Substances Act

916
(XXVII of 1997)---

----Ss. 48 & 49---Constitution of Pakistan,

Chap.3A of Part VII & Art.203-DD---Powers
and jurisdiction of Federal Shariat Court---
Vires of statute---Section 48 of Control of
Narcotic Substances Act, 1997 whereby the
High Court has been empowered to
entertain and decide appeals arising out of
the orders passed by the Special Court as
well as the power of High Court under
section 49 of the Act to transfer cases, at
any stage, from one Special Court to
another Special Court are inconsistent with
the provisions contained in Chap. 3A of Part
VII of the Constitution---Power to entertain
appeals against orders passed or judgments
917
delivered by a Special Court established
under section 48 of the Act in matters
related to Hudood offences and other
proceedings including transfer of cases from
such court vests in the Federal Shariat Court
because offences related to narcotics are
covered by the term Hudood---Word "High
Court" occurring in these sections shall be
substituted with the words "Federal Shariat
Court"---Federal Shariat Court directed that
present declaration shall take effect as from
22nd June, 2011 by which date necessary
steps be taken by the Federal Government
to amend the impugned laws in conformity
with present declaration whereafter the
impugned provision shall cease to be
effective and present judgment of the

918
Federal Shariat Court will be operative as on
22-6-2011.

(nn) Protection of Women (Criminal Laws

Amendment) Act (VI of 1006)---

----S. 25---Constitution of Pakistan, Art.203-

DD---Repugnancy to Injunctions of Islam---
Section 25 of Protection of Women
(Criminal Laws Amendment) Act, 2006 is
repugnant to Art.203-DD of the
Constitution because it makes Lian a ground
for divorce and thereby causes additional
and uncalled for hardship to the "wife"
which is contrary to the principle of Ease
(Yusr) enunciated by Holy Qur'an--Federal
919
Shariat Court directed that present
declaration shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned laws in conformity
with present declaration whereafter the
impugned provision shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on
22-6-2011.

(oo) Anti-Terrorism Act (XXVII of 1997)---

----Sched. Item 2---Constitution of Pakistan,

Art.203-DD---Powers and Jurisdiction of
Federal Shariat Court---Vires of statute---
920
According to the amendment effected in
item 2 of Sched. of Anti-Terrorism Act, 1997
dated 21-8-1997, the Federal Government
in exercise of power vesting in it under
section 3 of the Anti-Terrorism Act, 1997
authorized the Anti-Terrorism Courts to try
some categories of offences relating to
Hudood without providing a rider in section
25(i) of the said Act that appeals in cases
involving Hudood offence would lie to the
Federal Shariat Court---Said amendment in
the Schedule without corresponding change
in S.25(i) offends the constitutional
provision contained in Art.203-DD which
confers exclusive jurisdiction upon Federal
Shariat Court in cases relating to the
enforcement of Hudood---"Any case

921
decided. by any criminal court under any
law relating to the enforcement of Hudood"
is to be heard and decided by the Federal
Shariat Court alone---Such position is
therefore travesty of legal constraint
imposed by the Constitution---No authority
is superior to the Constitution---
Constitution has to be upheld at all costs---
Federal Shariat Court directed that present
declaration shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned laws in conformity
with present declaration whereafter the
impugned provision shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on

922
22-6-2011.

(pp) Constitution of Pakistan---

----Art. 203-DD---Revisional and other

jurisdiction of Federal Shariat Court---
Scope---Categories of offences covered by
the term "Hudood" as contemplated by
Art.203-DD of the Constitution and tribable
exclusively by the Federal Shariat Court
under its revisional and appellate
jurisdiction.

The following ten categories of offences are

inter alia covered by the term Hudood as
923
contemplated by Article 203-DD of the
Constitution and hence within the exclusive
appellate and revisional jurisdiction of the
Federal Shariat Court:

(i) Zina = In all its forms including

Adultery, Fornication and Rape.

(ii) Liwatat= Sexual intercourse against

the order of nature;

(iii) Qazf= Imputation of Zina;

(iv) Shurb = Alcohlic drinks/Intoxicants/

924
 Narcotics etc;

(v) Sarqa = Theft simplicitor;

(vi) Haraaba = It includes Robbery,

Highway Robbery, Dacoity and all
other categories of offences against
property as mentioned in Chapter XVII
of Pakistan Penal Code.

(vii) Irtidad= Apostacy. It includes all

offences mentioned in Chapter XV of
the Pakistan Penal Code, namely: Of
Offences Relating to Religion.

925
(viii) Baghee =Treason, waging war
against State; All categories of
offences mentioned in Chapter VI of
the Pakistan Penal Code.

(ix) Qisas = Right of retaliation in offences

against human body. All these
offences are covered by definition
Hadd because the penalty therein has
been prescribed by Nass/Ijma. [Abdul
Qadir Audah, has discussed to some
extent the scope of Hadd in his
treatise Al-Tashree ul Jinai al Islami,
Volume 1 at page 119, and

(x) Human Trafficking.

926
Appeal or Revision against any order, final
or interim, passed by any criminal court
under any law with regard to proceedings
connected with or ancillary to or
contributing towards commission of any of
the above-mentioned offences, shall not be
entertained by any court other than the
Federal Shariat Court. Section 338-F of the
Pakistan Penal Code has, in very clear
words, prescribed that in the interpretation
and application of its provisions and in
respect of matters ancillary or akin thereto,
the court shall be guided by the Injunctions
of Islam as laid down in Holy Quran and
Sunnah. The determination of what is in
accordance with Injunctions of Islam is the
927
sole province of Federal Shariat Court and
no other court. Additionally all those
matters relating to the Family life of
Muslims, for which the term Hadood Allah
has been used in Holy Quran are covered in
the abmit of Hudood and hence within the
appellate and revisional jurisdiction of the
Federal Shariat Court.

The term "Enforcement of Hudood"

encompasses all categories of offences and
matters mentioned above. These offences
are included in the scope of the term
Hudood wherein the punishments have
been prescribed by Holy Quran or Sunnah
of the Holy Prophet PBUH and subsequently
through legislative measures. Such
928
punishments can be awarded by trial courts
duly constituted under law. The term Tazir
when applied to any offence which partakes
of the nature of Hudood or is ancillary or
akin to or contributing towards commission
of offences covered by the term Hudood or
even where the proof prescribed for
establishing Hadd is lacking, would of
necessity fall within the ambit of the term
Hudood and hence within the jurisdiction of
Federal Shariat Court. Consequently all
matters within the parameters of Hudood,
including offences in which cognizance has
been taken in any form as stipulated in
section 190 of the Code of Criminal
Procedure or under any other law dealing
with offences relating to `Hudood', are, for

929
all purposes, enshrined in the jurisdiction of
Federal Shariat Court as mandated by the
Constitution, which jurisdiction includes,
appeal, revision, review, grant or refusal of
bail, transfer of cases, calling and examining
record of proceedings, and applications to
quash proceeding initiated before or during
trial and all matters ancillary to such cases,
at any stage of investigation, enquiry or
trial.

(qq) Constitution of Pakistan---

----Art. 203-D---Powers, jurisdiction and

functions of Federal Shariat Court---Scope---
Examination of vires of a statute---Vires of
930
an Act are to be examined in the light of the
limitations imposed by the Constitution---
However if the court finds a law or a
provision of law to be inconsistent with
constitutional provisions, it is competent to
strike it down to the extent of such
inconsistency---Federal Shariat Court is
additionally empowered to examine a law
on the touchstone of Injunctions of Islam---
Court will therefore keep in mind three
elements: The legislative competence; the
touchstone of Fundamental Rights and the
yardstick of Islamic Injunctions---Such an
exercise is resorted to not because Judiciary
is superior but on account of the fact that:
dignity of law and legal principles have to
be maintained; that Constitution has to be

931
upheld and enforced; that above all the
people of Pakistan have to be enabled to
live upto the permanent values and guiding
principles enunciated by Islam; and that
members of superior judiciary are under
oath to do all these things.

(rr) Constitution of Pakistan---

----Preamble, Arts. 2A, 31 & Chap.3A, Part

VII & Part IX---Legal presumptions based
upon various Injunctions of Islam, the
constitutional provisions and the Judge
made law enumerated.

932
Following are the legal presumptions based
upon various Injunctions of Islam, the
constitutional provisions and Judge-made
law:

(i) The sole repository of the authority to

interpret legal instrument is the court
constituted under the Constitution.

(ii) Members of the superior judiciary are

under oath to uphold the Constitution
and the law.

(iii) The Preamble, Articles 2A and 31,

Chapter 3A of Part VII and Part IX of
933
 the Constitution make it incumbent
upon the State to create conditions
which may enable the Muslim of
Pakistan, individually and collectively,
to order their lives in accordance with
fundamental principles and basic
concept of Islam and to provide
facilities whereby they may be enabled
to understand the meaning of life
according to the Holy Quran and
Sunnah.

(iv) That Holy Quran prohibits very strictly

any extra-marital activity between
man and woman and is consequently
full of praise for those who shun illicit
activity, i.e. those who guard their
934
 chastity and private parts. Reference
Ayat 35 Sura 33, Al-Ahzab and Ayat 29
Sura 70, Al-Ma'arij.

(v) Human dignity, honour and human life

has to be preserved. Laws which
protect property of persons have also
to be upheld.

(vi) Legal provisions are enacted to

establish peace, order and balance in
the society both at domestic level and
among nations at International level.
Reference Ayaat 1 to 6 Sura 83, Al-
Taffit; Ayat 38 Sura 2, Al-Baqara; Ayat
55 Sura 24, Al-Noor.
935
(vii) Wisdom and saner counsel wherever
recorded, according to the well known
tradition of the Holy Prophet PBUH, is
the lost treasure of believers and they
are exhorted to acquire it as and when
available. In this view of the matter all
the legal principles relating to the
domain of interpretation of legal
instruments, or reflecting permanent
values, from any jurisdiction, if not
opposed to the letter and spirit of Holy
Quran and Sunnah, will be considered
part of principles of Islamic
Jurisprudence.

936
 (viii) The Court has to be extremely
vigilant on the issue of implementation
of the Injunctions of Islam because a
stern warning has been given to those
who cover up the Divine
Commandments. Reference Ayah 159,
Surah 2, Al-Baqarah:

"Those who conceal anything of the clear

teachings and true guidance which We have
sent down even though We have made
them clear in Our Book, Allah curses such
people and so do all the cursers."

(ss) Constitution of Pakistan---

937
----Arts. 203-DD & 203-D---Re visional and
other jurisdiction of Federal Shariat Court---
Hudood Offences---Federal Shariat Court
declared that all those offences whose
punishments are either prescribed or left
undermined, relating to acts forbidden or
disapproved by Holy Quran, Sunnah,
including all such acts which are akin,
auxiliary, analogous, or supplementary to or
germane with "Hudood" offences as well as
preparation or abetment or attempt to
commit such an offence and as such made
culpable by legislative instruments would
without fail be covered by the meaning and
scope of the term "Hudood"-Federal Shariat
Court directed that present declaration
938
become operative forthwith.

(tt) Constitution of Pakistan---

----Art. 203-DD & Chap. 3A of Part VII---

Jurisdiction of Federal Shariat Court under
Art.203-DD of the Constitution---Extent---
Federal Shariat Court declared that extent
of Jurisdiction of Federal Shariat Court in
matters relating to the "Hudood" under
Art.203-DD is exclusive and pervades the
entire spectrum of orders passed or
decisions given by any criminal court under
any law relating to the enforcement of
Hudood and no other court is empowered
to entertain appeal, revision or reference in
939
such cases---No legislative instrument can
control, regulate or amend said jurisdiction
which was mandated in Chap. 3A of Part VII
of the Constitution---Federal Shariat Court
directed that present declaration become
operative forthwith.

(uu) Constitution of Pakistan---

----Art. 203-DD---Revisional and other

jurisdiction of Federal Shariat Court in
Hudood matters---Scope--- "Proceedings"
as used in Art.203-DD of the Constitution---
Connotation---Bail, grant or refusal of---
Federal Shariat Court declared that an order
granting or refusing bail before conclusion
940
of trial in all categories of offences within
the ambit of Hudood is covered by the word
proceedings, as used in Art.203-DD, and
hence within the exclusive jurisdiction of
the Federal Shariat Court and can be
impugned only in Federal Shariat Court---
Federal Shariat Court directed that present
declaration become operative forthwith.

(vv) Constitution of Pakistan---

----Art. 203-DD---Offences covered by the

term "Hudood" for the purpose of Art.203-
DD of the Constitution---Federal Shariat
Court declared offences of (1) Zina =
Adultery, Fornication and Rape; (2) Liwatat=
941
Sexual intercourse against the order of
nature; (3) Qazf= Imputation of Zina; (4)
Shurb = Alcohlic
drinks/Intoxicants/Narcotics etc; (5) Sarqa =
Theft simpliciter; (6) Haraaba = Robbery,
Highway Robbery, Dacoity. All categories of
offences against property as mentioned in
Chapter XVII of Pakistan Penal Code; (7)
Irtdad= Apostacy; (8) Baghy =Treason,
waging war against State; All categories of
offences mentioned in Chapter VI of the
Pakistan Penal Code and (9) Qisas = Right of
retaliation in offences against human body.
All these offences are covered by definition
Hadd because penalty therein has been
prescribed by Nass/Ijnta (10) Human
Trafficking as offences covered by the term

942
"Hudood" for the purpose of Art.203-DD of
the Constitution---Present declaration in
the above four items shall take effect
immediately because all the counsel
representing the respondents, the
jurisconsult as well the amicus curiae,
agreed on the said four issues---Said
conclusions having been consented to by
the parties need nothing more to be done.

(ww) Protection of Women (Criminal Laws

Amendment) Act (VI of 2006)---

----Ss. 11 & 28---Constitution of Pakistan,

Art.203-DD---Vires of Statute---Federal
Shariat Court declared that sections 11 and
943
28 of the Protection of Women (Criminal
Laws Amendment) Act, 2006 are violative of
Art.203-DD of the Constitution because
these provisions annul the overriding effect
of Offence of Zina (Enforcement of Hadd)
Ordinance, 1979 and Offence of Qazf
(Enforcement of Hudood) Ordinance, 1979--
-Federal Shariat Court directed that present
declaration shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned law in conformity
with present declaration whereafter the
impugned provisions shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on
22-6-2011.

944
(xx) Control of Narcotic Substances Act
(XXV of 1997)---

----Ss. 48 & 49---Constitution of Pakistan,

Art.203-DD, Chap. 3A, Part VII---Vires of
Statute---Federal Shariat Court declared
that the portions of Ss.48 & 49 of The
Control of Narcotic Substances Act, 1997
whereby the High Court has been
empowered to (a) entertain appeals against
the order of a Special Court consisting of a
Sessions Judge or an Additional Sessions
Judge and (b) transfer within its territorial
jurisdiction any case from one Special Court
to another Special Court at any stage of the

945
proceedings, are violative of the provisions
contained in Chap.3A of Part VII of the
Constitution because the offences
envisaged by the Act are covered by the
terra "Hudood"-Both the sections are
consequently declared violative of Art.203-
DD of the Constitution---Portion which
contains the words "High Court" should be
deemed to be substituted by the words
"Federal Shariat Court" in Ss.48 & 49 of the
Control of Narcotic Substances Act, 1997---
Federal Shariat Court directed that present
declaration shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned law in conformity
with present declaration whereafter the

946
impugned provision shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on
22-6-2011.

(yy) Protection of Women (Criminal Laws

Amendment) Act (VI of 2006)---

----Ss. 25 & 29---Constitution of Pakistan,

Art.203-DD---Repugnancy to Injunctions of
Islam---Federal Shariat Court declared that
section 25 of the Protection of Women
(Criminal Laws Amendment) Act, 2006 is
violative of Art. 203-DD of the Constitution
as it omits subsections (3) and (4) of section
14 of the Offence of Qazf (Enforcement of
947
Hadd) Ordinance, 1979 with the result that
it has adversely effected the operation of
Injunctions of Islam relating to Lian;
consequently S.29 of Protection of Women
(Criminal Laws Amendment) Act, 2006 is
also violative of Art. 203-DD as it adds
clause (vii)(a) Lian in S.2 of the Dissolution
of Muslim Marriages Act, 1939---Said
addition in the latter Act also becomes
invalid on account of repugnancy with the
Injunctions of Islam relating to Lian---
Federal Shariat Court directed that present
declaration shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned laws in conformity
with present declaration whereafter the

948
impugned provisions shall cease to be
effective and present judgment of the
Federal Shariat Court will be operative as on
22-6-2011.

(zz) Anti-Terrorism Act (XXVII of 1997)---

----S. 25---Constitution of Pakistan, Art.203-

DD---Offences in cases relating to Hudood---
Vires of statute---Federal Shariat Court
declared that S. 25 of the Anti-Terrorism
Act, 1997 does not make provision for filing
an appeal before the Federal Shariat Court
in cases where the Anti-Terrorism court
decides a case relating to some of the
Hudood offences included in the Schedule
949
as from 21-8-1997; said omission is violative
of Art.203-DD of the Constitution---Federal
Government should rectify this error by the
target date fixed by Federal Shariat Court
otherwise the rider to the effect that "but
where a private complaint or a First
Information Report or information, as
stipulated in 5.190 of the Code of Criminal
Procedure, relating to an offence falling
within the purview of ten categories of
Hudood Offences (mentioned in the present
judgment), is decided by any court
exercising criminal jurisdiction under any
law of the land, the appeal therefrom shall
lie to the Federal Shariat Court." shall be
read at the end of clause (i) of S.25 after
omitting the full stops---Federal Shariat

950
Court directed that present declaration
shall take effect as from 22nd June, 2011 by
which date necessary steps be taken by the
Federal Government to amend the
impugned laws in conformity with present
declaration whereafter the impugned
provision shall cease to be effective and this
judgment of the Federal Shariat Court will
be operative as on 22-6-2011.

Mian Abdur Razzaq Aamer, Ch. Muhammad

Aslam Ghuman and Abdul Latif Sufi for
Petitioners.

Sardar Abdul Majeed, Standing Counsel for

Federal Government, Mr. Tariq Ali,
951
Advocate for Federal Government, Mr.
Muhammad Israr, Advocate on behalf of
Sardar Abdul Majeed, Standing Counsel,
Syed Hasnain Haider, Advocate for Federal
Government and Syed Azmat Ali Bukhari,
Standing Counsel for Federal
Government/Attorney General, for Federal
Government.

Mr. Shafaqat Munir Malik,' Additional

Advocate General, Punjab and Ch. Saleem
Murtaza Mughal, Assistant Advocate
General Punjab for the Punjab Province.

Fareed-ul-Hassan, A.A.G., Sindh for the

Sindh Province.
952
Muhammad Sharif Janjua, Advocate on
behalf of Advocate General, N.-W.F.P. and
Aziz-ur-Rehman, Advocate on behalf of
Advocate-General, Khyber Pakhtoon Khaw
for N.-W.F.P./Khyber Pakhtoon Khaw.

Salahuddin Mughal, Advocate General

Balochistan, Tariq Ali Tahir, Additional
Advocate General Balochistan, Muhmood
Raza Khan, Additional Advocate General
Balochitan and Muhammad Sharif Janjua,
Advocate on behalf of Advocate General
Balochistan for Balochistan.

953
Hafiz Muhammad Tufail and Dr.
Muhammad Hussain Akbar, Jurisconsults.

Raja Muqsit Nawaz Khan and Syeda Viquar-

un-Nisa Hashmi: Amicus curiae.

Dates of hearing: 29th January. 13th, 25th

March, 7th May, 18th November, 2008; 5th,
20th January, 11th February, 2nd April,
2009; 29th March, 19th April, 17th, 26th
May, 5th, 6th July, 26th October and 23rd
November, 2010.

JUDGMENT
954
SYED AFZAL HAIDER: J . - -

Those who do not judge by what Allah has

revealed are indeed the Unbelievers. (5:44)

Those who do not judge by what Allah has

revealed are indeed the Wrong-doers.(5:45)

And those who do not judge by what Allah

has revealed are the Transgressors. (5:47)

Then We revealed the Book to you, (0

Muhammad), with Truth, confirming what-
955
ever of the Book was revealed before, and
protecting and guarding over it. Judge,
then, in the affairs of men in accordance
with (the commandment) what Allah has
revealed. (5:48)

AND

Take whatsoever the Prophet (Muhammad

PBUH) gives you and abstain from whatever
he forbids and fear Allah: verily Allah is
Most stern in retribution Ayat 7, Sura 59,
Al-Hashr, The Holy Quran

EXHORDIUM
956
2. This Judgment will dispose of the
following three connected Shariat Petitions:

(i) Shariat Petition No.1/I of 2010.

(ii) Shariat Petition No.3/I of 2007.
(iii) Shariat Petition No.1/I of 2007.

Shariat Petition No. 1/I of 2010, at serial

number i, seeks to challenge sections 5,6
and 7 of the Protection of Women Act, 2006
(Act. No.VI of 2006); while Shariat Petition
No.3/I of 2007, at serial number ii, impugns
the same sections as well as the entire Act
VI of 2006; whereas Shariat Petition No.1/I
957
of 2007, at serial number iii, calls into
question sections 5 and 7 of Act VI of 2006
whereby section 376, 496-B and 496-C have
been added in the Pakistan Penal Code. Act
VI of 2006 entitled Protection of Women
(Criminal Laws Amendment) Act, 2006
impugned in these petitions, will be
referred to in this judgment as the Act.,
Three petitions at serial i, ii and iii were
clubbed together by an order of this Court
dated 29-3-2010. The order reads as
follows:-

"According to the office report Shariat

Petition No.1 as well as Shariat Petition
No.3/I of 2007 was dismissed for non
prosecution on 25-3-2008. The present
958
Shariat Petition No.1/I of 2010 has a
nexus with the said two petitions. We
are inclined to restore the said two
Shariat Petitions i.e. Nos.1/I & 3/I of
2007 to the same numbers so that they
are also linked up with this petition for
disposal.

Learned counsel inter-alia contends that

the addition of new sections 5, 6 and 7
in the Protection of Women (Criminal
Law Amendment) Act, 2006, including
the omission of the first proviso to
section 20 of Ordinance VII of 1979 is
not only repugnant to the Injunctions of
Islam but is also violative of the
constitutional provisions contained in
959
Article 203-DD(i). The Federal Shariat
Court has, it is urged, exclusive
jurisdiction in any case decided by any
criminal court under any law relating to
the enforcement of Hudood

The learned counsel also states that

according to the Injunctions contained
in Ayat 4 of Sura 24 i.e. Sura Noor of
Holy Quran, every person who indulges
in calumny against chaste women looses
his legal capacity to give evidence in any
court of law. The points raised are
substantial and need consideration.
Admit. Notice. A copy of this order be
sent to respondents Nos.1 and 2 with
the direction to file written statements
960
 within two weeks. The case be fixed in
the third week of April, 2010."

Initially Shariat Petition No.9/I of 2004,

pending disposal in this court for the last six
years, was ordered to be heard along with
the other three petitions as common legal
instruments were impugned in these
petitions. Written statement had also been
submitted by answering respondents in
Shariat Petition No.9/I of 2004 which was
duly amended in November, 2008 to
include simultaneous challenge to the Act.
Arguments on all the four petitions were
heard on 16 dates over a period of almost
three years. Last date of hearing was 26-10-
2010. However on 23-11-2010 petitioner in
961
Shariat Petition No.9/I of 2004 submitted
that he would not like his case to be
bracketed with the other three Shariat
Petitions because the point raised by him
was. of "first .impression" and further that
during the last fourteen centuries wrong
interpretation had been put on the word
Shahadah occurring in Holy Quran. He
claimed to be son of Prophet Syedna Yaqub
A.S. and claimed that his interpretation of
the Ayaat of Holy Quran will revolutionize
the criminal law all over the Muslim world.
His prayer to separate out his petition was
not opposed by the answering respondents.
Consequently his request was allowed with
a direction to the office to delink Shariat
Petition No.9/I of 2004 with further

962
direction that his petition be fixed
separately at some appropriate time. In this
view of the matter this judgment will
dispose of the three other Shariat Petitions
mentioned in the title.

CONTENTS OF THREE PETITIONS

3. The points urged in the aforementioned

three petitions may be summed up as
under:-

(a) Shariat Petition No.1/I of 2007

963
Mian Abdur Razzaq Aamer, has through this
petition, challenged sections 5 and 7 of the
Act which have added three new provisions
i.e, sections 376, 496-B and 496-C relating
to Rape and Fornication, in Pakistan Penal
Code. It is contended that the impugned
provisions are violative of the Injunctions of
Islam.

(b) Shariat Petition No.3/I of 2007

Ch. Muhammad Aslam Ghuman has,

through this petition impugned sections 5,
6, 7 of the Protection of Women (Criminal
Laws Amendment) Act, 2006 as being
repugnant to the Injunctions of Islam.
964
(c) Shariat Petition No.1/I of 2010

Mr. Abdul Latif Sufi through this petition

has also assailed sections 5, 6, 7 of the
Protection of Women (Criminal Laws
Amendment) Act, 2006 and prayed that the
same be declared to be repugnant to the
Injunctions of Islam and ultra vires the
Constitution of Islamic Republic of Pakistan,
1973.

INITIAL DISCUSSION

4. During the course of preliminary

965
arguments learned Counsel for the
petitioners inter-alia maintained that:

(a) The introduction of Act. VI of 2006

has adversely affected the jurisdiction of
Federal Shariat Court though in matters
relating to the enforcement of Hudood,
the Constitution had conferred exclusive
jurisdiction upon this Court as was
evident from Article 203DD of the
Constitution;

(b) The practice of moving the Provincial

High Courts for grant of pre-arrest or
post arrest bails or cancellation thereof
in Hudood matters was illegal as the
966
 appellate and revisional jurisdiction in
all Hudood matters vested in the Federal
Shariat Court alone;

(c) The appellate and revisional

jurisdiction against orders passed or
judgments delivered by Special Court
under the Control of Narcotic
Substances Act, 1997 (Act No.XXV of
1997) including the power of transfer of
cases from one to another Special Court,
exercised by the High Court under
section 49 ibid, has to be with the
Federal Shariat Court as offences
relating to ' intoxicants are covered by
the scope of the term Hudood;

967
(d) The meaning and scope of the term
Hudood should be elaborated with
particular reference to the number and
nature of offences and human affairs i.e,
MUAMLAAT, for a proper appreciation
of existing constitutional and legal
provisions and future legal instruments;

(e) Since all matters relating to the

Muslim family are covered by the term
Hudood, so the ultimate jurisdiction to
hear appeals and revisions in such
matters should also vest in the Federal
Shariat Court particularly after the
introduction of Chapter 3A of Part VII in

968
 the Constitution. It was therefore
contended that section 14 and section
25-A of Act XXXV of 1964 be also
examined;

(f) The overriding effect given to the

Hudood Ordinances has been protected
by the Constitution. Act VI of 2006
cannot limit the extent of jurisdiction
which had been guaranteed by the
Constitution and lastly it was urged that
and;

(g) They would not press the objections

raised in the Shariat Petitions relating to
Act VI of 2006 provided matters relating
969
 to jurisdiction of this Court and allied
question mentioned in the proposed
issues are decided at the first instance.

Learned counsel representing respondents

1 through 5 did not controvert the above
mentioned seven assertions. In fact each
one of them agreed that the questions
raised were substantial and required in-
depth analysis in the larger interest of
justice and development of law. It was
urged that the issue of Muslim Family Law
be also examined as the term Hudood as
mentioned in Holy Qur'an covers matters
relating to family laws.

970
However it was not deemed advisable to
adjudicate upon a number of legal
propositions through this judgment.
Decision on other matters has been left for
some future date in appropriated
proceedings. Consequently the respondents
were put on notice that this Court would
proceed to examine only a limited number
of provisions contained in the following six
legal instruments in view of the statement
of petitioners.

(i) Section 3 of Ordinance VII of 1979

(ii) Section 19 of Ordinance VIII of 1979

971
(iii) Sections 11, 28 and 29 of Act VI of
2006

(iv) Part VII and provisions relating to Bails

occurring in Part IX of the Code of
Criminal Procedure.

(v) Chapters 11 and V of Control of

Narcotic Substances Act, 1997.

(vi) West Pakistan Family Courts Act,

(Section 5 read with Schedule I and II
,and section 14 in particular as well as
sections 14 and 25-A ibid.)
972
Learned Counsel for respondents were
advised to get instructions from respective
governments on the questions raised
before us. The learned counsel representing
the respondents accepted notice as regards
the above-mentioned subjects and it was
then agreed that necessary issues be struck
on these specific points in order to examine
the entire gamut of legal provisions as the
basic question relating to jurisdiction of this
Court was involved. It was emphatically
urged before us that the meaning and
scope of the term Hudood must be
determined as this term has not been
defined by the Constitution. It was also
urged that the purpose of creating Federal
973
Shariat Court be also examined from
different perspectives in order to fully
appreciate the extent of jurisdiction and
power of this Court. Consequently the
following revised consensus issues were
struck for the purpose of adjudication of
basic questions in relation to the subject
matter under examination.

CONSENSUS ISSUES

(a) What is the meaning and scope of

the term Hudood with particular
reference to clause (1) of Article 203-DD
of the Constitution?

974
(b) What is the meaning of the term
Jurisdiction and Judicial Power and what
is the extent of jurisdiction of the
Federal Shariat Court in matters relating
to the enforcement of Hudood under
Article 203-DD of the Constitution?

(c) Can the mandate of Article 203-DD

of the Constitution, which confers
exclusive jurisdiction upon the Federal
Shariat Court to examine the record of
any case decided by any criminal court
under any law relating to the
enforcement of Hudood, be nullified by
legislative instruments like the Act of

975
 2006;

(d) Are not sections 11 and 28 of the Act

violative of Article 203-DD of the
Constitution as the overriding effect of
both the Hudood laws, duly fortified by
constitutional provisions, has been
repealed?

(e) Can the Federal Shariat Court be

barred by a subordinate judicial
pronouncement from granting bail to or
cancelling bail of an accused before or
during trial for offences covered by the
term Hudood?

976
(f) Are not sections 48 and 49 of Act
XXV of 1997 violative of Article 203-DD
in so far as the forum of Appeal and the
power to transfer cases provided therein
vest in the High Courts and not Federal
Shariat Court?

(g) Are not sections 25 and 29 of the Act

violative of the Injunctions of Islam
because the Islamic provisions of Lian as
contained in sub-sections (3) and (4) of
Section 14 of Ordinance (VIII of 1979)
have been illegally repealed apart from
adding clause (vii)(a) Lian in section 2 of
Act VIII of 1939?

977
(h) How are punishments and offences
classified according to Islamic teachings
and what categories of offences are
within the ambit of Hudood and hence
within the exclusive jurisdiction of the
Federal Shariat Court?

(i) What is the meaning of Jurisdiction

and Judicial Power with particular
reference to the Federal Shariat Court as
envisaged by Articles 203-D and 203-DD
of the Constitution?

(j) Conclusions;

978
 (k) Declaration by the Court.

It might as well be stated here that except

the issues framed above in relation to the
specific legal instruments, we do not
propose considering other legal provisions
mentioned in the four Shariat Petitions. We
are leaving these provision for future date
whenever any questions is raised before the
Court.

JURISCONSULTS INVITED

5. In view of the importance of the

979
questions involved we decided to invite
jurisconsults to render assistance to this
Court on the above-mentioned questions.
As a next step we proceeded to issue
notices to the following jurisconsults:--

(i) Dr. Hafiz Muhammad Tufail

(ii) Dr. Muhammad Tahir Mansoori

(iii) Dr. Allama Muhammad Hussain Akbar

(iv) Hafiz Abdur Rehman Madni

980
 (v) Dr. Sajid-ur-Rehman Siddiqui.

Only two jurisconsults responded to our

call. Dr. Allama Muhammad Hussain Akbar
from Lahore submitted written comments
which were placed on record while Dr. Hafiz
Muhammad Tufail from Islamabad
appeared personally and apart from
submitting written comments also
addressed the Court.

6. Raja Muqsat Nawaz Advocate and Ms.

Syeda Viquar-un-Nisa Hashmi Advocate
appeared to assist the Court on the
aforementioned issues. The lady lawyer was
encouraged for the additional reason that a
981
female human right activist had opted to
participate in these deliberations.

WRITTEN RIPOSTE OF RESPONDENTS

7. The Federal Government, respondent No.

1, initially submitted written statement on
15-10-2008. This reply was focused on the
contents of Shariat Petition No.9/I of 2004.
However learned counsel submitted that
this very reply be read in other three
petitions under consideration. Respondent
No.1 finally submitted additional written
comments on 5-7-2010 in which various
preliminary objections were raised. These
objections are however not relevant for our
982
discussion as we are not determining the
questions relating to the Zina (Enforcement
of Hudood) Ordinance, 1979 as agitated in
Shariat Petition No.9/I of 2004.

8. Learned counsel appearing on behalf of

Province of the Punjab also referred to the
comments already submitted in Shariat
Petition No.9/I of 2004 with the request
that the same be read as reply in the
connected matters under discussion in this
Court. Learned Counsel appearing on behalf
of the other three Provinces stated that
they endorse the view point of the Federal
Government and own the comments filed in
Shariat Petition No.9/I of 2004. In fact the
learned counsel for the respondents, on
983
every date of hearing, stated that they had
nothing else to add. The learned counsel
also stated that since the question of
construction of various Injunctions of Holy
Quran and Sunnah as well as the question
of jurisdiction of this Court was involved in
these cases so they would be seeking
guidance from this Court rather than
dilating upon or elucidating the Injunctions
of Islam from their end. It was further
submitted that they would abide by the
decision given therein. It was however
made clear to the learned Counsel of the
five answering respondents that the
comments already submitted by them
related only to Shariat Petition No.9/I of
2004 wherein the main thrust was against

984
Ordinance VII of 1979 but the questions
requiring determination in this judgment
had been condensed in the consensus
issues.

9. The objection raised by learned counsel

for respondent No.1 about the language
employed by petitioner in paragraphs 17,
22, 23 and 25 of his Shariat Petition No.9/I
of 2004 is valid. The objection is upheld.
The office is directed to delete the
objectionable lines from the text of the
petition. The petitioner is present in court.
He has been told that irrelevant and
irresponsible matters should be eschewed
in solemn proceedings.

985
10. Respondent No.2 Province of
Balochistan did not file any written
comment. Oral arguments were also not
advanced. It was stated by the learned
counsel for the Province of Balochistan that
the comments submitted by Federal
Government have also been adopted by
them.

11. Mr. Aziz-ur-Rehman Khan learned

Counsel representing respondent No.3,
Khyber Pukhtoon Khwa, in the written
statement dated 17-5-2010 submitted that
Shariat Petition No.9/I of 2004 merits
dismissal as it has raised hypothetical

986
questions.

12. Respondent No.4, Province of the

Punjab, in the written comments, submitted
in Shariat Petition No.9/I of 2004, inter-alia
raised the preliminary objections that the
provinces are not necessary parties and
that the petitioner has completely ignored
the Ahadis of Holy Prophet PBUH and that
self coined meanings have been given by
the petitioner to various legal provisions
which are contrary to judicial
pronouncements.

13. Learned counsel for respondent No.4,

challenged the petitioner's contention
987
which pertains to Ordinance VII of 1979. As
stated above we are not examining the
provisions of that Ordinance. As regards the
objection relating to LIAN; the plea of
Province of the Punjab was that "the
grounds of divorce are the subject-matter
of Dissolution of Muslim Marriages Act,
1939, therefore the provision relating to
lion were deleted from Hudood Laws and
were made part of Dissolution of Muslim
Marriages Act, 1939 and the said statutory
amendments have not violated any
fundamental rights guaranteed by the
Constitution."

14. Learned counsel for respondent No.5,

Province of Sindh, submitted that he had
988
adopted the comments filed by respondent
No.4, Province of the Punjab. However
written comments on behalf of Sindh
Government were received only in Shariat
Petition No. 9/I of 2004. These comments
consist of the three following lines:-

"It is respectfully prayed that the

respondent No.5 adopts the comments
filed by respondent No.4 in the above
petition".

AREAS OF CONTENTION

15. Learned counsel appearing on behalf of

989
petitioners in other three petitions raised
the following contentions:

(a) That the omission of sections 3, 4, 6,

10, 16, 18, and 19 of Ordinance VII of
1979 and amendments effected in
sections 8, 9, 17 and 20 ibid as well as
omissions of sections 10 through 13, 15,
16 and 19 of Ordinance VIII of 1979 and
amendments in sections 2, 4, 6, 8, 9, 14,
16 and 17 ibid as well as insertion of
new sections in the Pakistan Penal Code
by virtue of sections 2 through 8 of Act
VI of 2006 and corresponding
amendments in Schedule II of the Code
of Criminal Procedure is violative of the
Injunctions of Islam.
990
(b) That the purpose achieved by these
amendments was to limit the
jurisdiction of the Federal Shariat Court
which decided appeals/revisions against
conviction/acquittal recorded under
Ordinances Nos.V11 and VIII of 1979 in
relation to the offences stipulated
originally in the four Hudood
Ordinances. These amendments it is
urged, contravene Constitutional
provision contained in Article 203-DD
apart from being mala fide;

(c) That the words "The High Court"

occurring in (i) subsection (3) of section

991
 5, (ii) clause (9) of subsection (1) of
section 14 and the words "the High
Court" occurring in clause (1) and the
words "the Supreme Court" occurring in
clause 2(b) of section 25(a) of the West
Pakistan Family Courts Act, 1964 be
substituted for the words "Federal
Shariat Court." It was also contended
that the provisions of Muslim Family
Laws are covered by the meaning and
scope of the term Hudood as is evident
from various Ayaat of Holy Quran.

(d) That subsection (5) may be added in

section 14 of the West Pakistan Family
Courts Act, 1964 to empower the
Federal Shariat Court to exercise
992
 revisional jurisdiction within ninety days
over the appellate orders passed by the
District Court in any cases as provided in
clause (h) of submission (1) of section 14
(ibid). A provision be also added to
transfer all the appeals, pending in the
High Courts, to the Federal Shariat
Court.

(e) That appeals against convictions,

recorded under the Control of Narcotic
Substances Act, 1997 (Act No.XXV of
1997), should lie before the Federal
Shariat Court as the sale, purchase,
manufacture and use of narcotics was
hit by the mischief of Prohibition as
envisaged by Hudood Laws.
993
(f) That the practice of invoking the
jurisdiction of High Courts in the event
of grant or refusal of pre-arrest and
post-arrest bail application during
investigation and trial stage was
violative of Article 203-DD of the
Constitution; and

(g) The scope of the term Hudood is

very wide and covers not only all
categories of offences relating to
property, human body, human dignity
and honour but also family matters of a
civil nature. In this context it was urged
that the categories of offences as well as

994
 civil matters relating to family life, be
also identified which fall within the
ambit of the term Hudood. It was
asserted that the purpose of creating
Federal Shariat Court be also examined,
and lastly it was maintained;

(h) That the above mentioned points

have been raised additionally for the
reason that Article 203-DD of the
Constitution stipulates that the Federal
Shariat Court shall have such other
jurisdiction as may be conferred on it by
or under any law.

As stated above we made it clear to the

995
learned counsel for petitioners as well as
petitioner in Shariat Petition No.9/I of 2004
that this judgment will dispose of the
questions enumerated in the consensus
issues. Challenge to the other provisions
will be taken up in appropriate proceedings
at some other occasion if so required.

16. The Jurisconsult, in addition to the

seven pages opinion expressed in the
written comments, made the following
submissions:-

(i) That the purpose of amending the

Hudood Laws through Act VI of 2006
was only to deprive the Federal Shariat
996
 Court of its constitutional jurisdiction;

(ii) That the amendments introduced in

Hudood laws are motivated by
extraneous considerations;

(iii) That the Protection of Women Act,

2006 (Act No.VI of 2006) should be
adjudged as being violative of the
Injunctions of Islam;

(iv) That the scope of the term Hudood is

wide enough to cover various
categories of offences affecting human
body, property, qazf, honour, including
997
 extra-marital activity and

(v) That the institution of Federal Shariat

Court has not only to be preserved but
strengthened with additional power.

17. After hearing contentions of the parties

certain questions were posed. Raja Muqsit
Nawaz Khan, Advocate and Syeda Viquar-
un-Nisa Hashmi, Advocate as well as the
representatives of the parties and the
jurisconsult, in response to the questions
posed by the Court on 26-10-2010 agreed
that:

998
(i) Exclusive Jurisdiction conferred by
constitutional provisions can neither
be curtailed nor regulated by
subordinate legislation;

(ii) The determination of meaning and

scope of the term Hudood as well as
the exercise to identify the categories
of offences and civil matters regarding
the life of Muslims which fall in the
ambit of Hudood is the sole preserve
of Federal Shariat Court;

(iii) All the matters connected with or the

steps leading upto the commission of
offences covered by Hudood ipso facto
999
 fall within the jurisdiction of the
Federal Shariat Court;

(iv) The Federal Shariat Court, as

mandated by Article 203-D of the
Constitution, is the only forum to
examine any law or provision of law or
any custom or usage having the force
of law on the touch stone of
Injunctions of Islam; and

(v) That adjudication upon bail matters in

cases covered by Hudood is certainly
ancillary to the trial, appellate and
revisional jurisdiction and hence
cognizable by Federal Shariat Court.
1000
18. It may be mentioned here that the
second round of arguments in this case was
necessitated on account of the sudden
demise of Justice Doctor Mahmood Ahmad
Ghazi. The Bench was therefore
reconstituted by the Hon'ble Chief Justice.
Fresh notices were issued to the parties for
26-10-2010. The rehearing took place at the
principle seat on 26-10-2010 and also on
23-11-2010. The parties recapitulated
briefly the various arguments already
advanced by them along with fresh input
which has been duly noted for
consideration.

1001
 SCOPE OF DISCUSSION

19. Before proceeding to discuss the

consensus issue it may be reiterated that
out of the four Shariat Petitions, linked with
each other for disposal, Shariat Petition
No.9/I of 2004 was delinked on the request
of petitioner. It will be heard separately at
some future date. The three remaining
Shariat Petitions are being disposed of in
this judgment only on matters enumerated
in the consensus issues. Cognizance is not
being taken of the other legal provisions
agitated in these petitions. Questions
beyond the consensus issues are being left
with the consent of parties for a future date
in appropriate proceedings as and when
1002
situation arises. I therefore proceed to
analyze and discuss the issues framed with
the consent of parties.

ISSUES Nos. (a, and c)

HUDOOD: MEANING AND SCOPE

20. Issues (a) and (c) relates to

determination of the meaning and scope of
the term Hudood and the nature as well as
extent of the mandate contemplated in
Article 203DD. The reason to formulate and
discuss these issues is evident from the text
of Article 203DD of the Constitution of
1003
Islamic Republic of Pakistan itself. The said
Article reads as follows:-

(1) The Court may call for and

examine the record of any case
decided by any criminal court under
any law relating to the enforcement
of Hudood for the purpose of
satisfying itself as to the correctness,
legality or propriety of any finding,
sentence or order recorded or
passed by, and as to the regularity of
any proceedings of, such court and
may, when calling for such record,
direct that the execution of any
sentence be suspended and, if the
accused is in confinement, that he be
1004
 released on bail or on his own bond
pending the examination of the
record.

(2) In any case the record of which

has been called for by the Court, the
Court may pass such order as it may
deem fit and may enhance the
sentence:

Provided that nothing in this Article

shall be deemed to authorize the
Court to convert a finding of
acquittal into one of conviction and
no order under this Article shall be
made to the prejudice of the accused
1005
 unless he has had an opportunity of
being heard in his own defence.

(3) The Court shall have such other

jurisdiction as may be conferred on it
by or under any law". (Emphasis
added)

21. An analysis of Article 203-DD indicates

that:

(i) the Federal Shariat Court has the

exclusive jurisdiction to call for and
examine the record of;

1006
(ii) any case decided by any criminal court
under any law relating to .F the
enforcement of Hudood;

(iii) for the purpose of satisfying itself as to

the correctness, legality or propriety of
any finding, sentence or order
recorded or passed by and as to the
regularity of any proceedings of such
Court;

(iv) the order under examination by the

Federal Court or challenged before it
may be in the nature of grant or
refusal of bail by the trial Court;

1007
(v) and the Court may for that purpose
call for the record of the case;

(vi) while so doing the Court may suspend

execution of the sentence;

(vii) direct release on bail or on his own

bond if the accused is in confinement
pending examination of record; and
further;

(viii) the Federal Shariat Court may, as a

result of examination of record pass
such order as it may deem fit;
1008
 (ix) and may even enhance the sentence
subject of course, to notice.

22. It is therefore clear that the exclusive

jurisdiction of the Federal Shariat Court,
mandated by the Constitution, revolves
around the term "the enforcement of
Hudood." For this reason we now proceed
to discover the meaning and the scope of
the term Hadood as well as Tazir as both
the terms have throughout centuries been
employed in the criminal administration of
justice in Islamic polity.

1009
23. The word "Hudood" is plural of the
word Hadd. Literally the word Hadd means
prevention, impediment, barrier, bounds
and limit. In the Holy Quran this word has
been used in a very wide sense covering
various aspects of our mundane life. This
word occurs a number of times in the
sacred texts and with the passage of time it
has acquired the status of a legal term
particularly in the field of administration of
criminal Justice. It is now a well recognized
component of the chapter relating to crime
and punishment in Islamic Jurisprudence.
This term, in its essence, connotes Divine
Injunctions which prescribe parameters for
human action in certain spheres of life.
These injunctions have consequently the

1010
effect of regulating the areas of human
choices and freedoms. There are zones of
human activity where the lawgiver has
allowed choice or what may be termed as
freedom of action to human beings and in
other places the addressee of the
commandment i.e. the obligee is required
to strictly follow the mandated provision.

24. The term Hudood finds mention in

fourteen different Ayaat of Holy Quran.
These Ayaat identify multifaceted aspects
of our mundane existence. In order,
therefore, to fully grasp the significance of
the term Hudood, it will be instructive to
examine the said 14 Ayaat of Holy Quran as
well as the sayings of the Holy Prophet,
1011
PBUH, on the subject. The translation of the
related text, from both the sources, is being
detailed below for a proper appreciation of
the meaning and scope of the term
Hudood. Part A below refers to Injunctions
of Holy Quran while Part thereafter pertains
to the traditions of Holy Prophet (PBUH).
Discussion on the meaning and scope of the
term Hudood will be undertaken thereafter
in Part C entitled HUDOOD AND TAZIR while
concluding deliberation on these issues.

PART -A

QURANIC INJUNCTIONS 25.

1012
 25. Ayah 187 Surah 2 (al-Baqrah) Holy
Quran:

"It has been made lawful for you to go in

to your wives during the night of the
fast. They are your garment, and you are
theirs. Allah knows that you used to
betray yourselves and He mercifully
relented and pardoned you. So you may
now associate intimately with your
wives and benefit from the enjoyment
Allah has made lawful for you, and eat
and drink at night until you can discern
the white streak of dawn against the
blackness of the night; then (give up all

1013
 that and) complete your fasting until
night sets in. But do not associate
intimately with your wives during the
period when you are on retreat in the
mosques. These are the (Hudood Allah)
bounds set by Allah; do not, then, even
draw near them. Thus does Allah make
His Signs clear to mankind that they may
stay away from evil."

Ayah 229 Surah 2 (Al-Bagrah) of Holy

Quran. The term Hudood has been
employed four times in this Ayat:--

"Divorce can be pronounced twice:

then, either honourable. retention or
1014
 kindly release should follow. (While
dissolving the marriage tie) it is unlawful
for you to take back anything of what
you have given to your wives unless
both fear that they may not be able to
keep within the bounds set by Allah.
Then, if they fear that they might not be
able to keep within the bounds set by
Allah, there is no blame upon them for
what the wife might give away of her
property to become released from the
marriage tie. These are the bounds set
by Allah; do not transgress them. Those
of you who transgress the bounds set by
Allah are indeed the wrong-doers."

iii. Ayah 230 Surah 2 (Al-Bagarah) of Holy

1015
Quran. The term Hudood has been used
twice here:--

"Then, if he divorce her (for the third

time, after having pronounced the
divorce twice), she shall not be lawful to
him unless she first takes another man
for a husband, and he divorces her.
There is no blame upon them if both of
them return to one another thereafter,
provided they think that they will be
able to keep within the bounds set by
Allah. These are the bounds of Allah
which He makes clear to a people who
have knowledge (of the consequences of
violating those bounds)".

1016
iv. Ayaat 1 through 12, 13 and 14 Surah 4
(An-Nisa) of Holy Quran:--

Ayaat I through 12 deal with:

(a) equality of human beings;

(b) handing over of property to orphans;
(c) marriage with orphan girls;
(d) mandatory bridal gift;
(e) guardianship of mentally efficient
persons;
(f) inheritance shares and division of
estate;
1017
 (g) Zihar and Divorce.

"These are the bounds set by Allah. Allah

will make him who obeys Allah and His
Messenger enter the Gardens beneath
which rivers flow. He will abide there for
ever. That is the mighty triumph."

"And he who disobeys Allah and His

Messenger and transgresses the bounds
set by Him - him shall Allah cause to enter
the Fire. There he will abide. A humiliating
chastisement awaits him."

v. Ayah 97 Surah 9 (At-Taubah) of Holy

1018
Quran:--

"The Bedouin Arabs surpass all in

unbelief and hypocrisy and are most
likely to be un-aware of the limits
prescribed by Allah in what He has
revealed to His Messenger. Allah is All-
knowing, All-Wise."

vi. Ayah 112 Surah 9 (At-Taubah) of Holy

Quran:-

"Those who constantly turn to Allah in

repentance, who constantly worship
Him, who celebrate His praise, who go
1019
 about the world to serve His cause,
prostrate them-selves before Him, who
enjoin what is good and forbid what is
evil, and who keep the limits set by
Allah. Announce glad tidings to such
believers."

vii. Ayah 4 Surah 58 (Al-Mujadalah) of Holy

Quran:--

"And he who does not find a slave (to

free),shall fast for two months
consecutively before they may touch
each other, and he who is unable to do
so shall feed sixty needy people. All this
is in order that you may truly believe in
1020
 Allah and His Messenger. These are the
bounds set by Allah; and a grievous
chastisement awaits the unbelievers."

viii. Ayah 1 Surah 65 (At-Talaq) of Holy

Quran. The term Hudood has been used
twice in this Ayah:

"O Prophet, when you divorce women,

divorce them for their waiting-period,
and compute the waiting period
accurately, and hold Allah, your Lord, in
awe. Do not turn them out of their
homes (during the waiting period) nor
should they go away (from their homes)
- unless they have committed a
1021
 manifestly evil deed. Such are the
bounds set by Allah; and he who
transgresses the bounds set by Allah
commits a wrong against himself. You
do not know: may be Allah will cause
something to happen to pave the way
(for reconciliation)."

26. In the above mentioned Nusoos of Holy

Quran, the term Hudood has been clearly
and explicitly used in the sense of
commandments or injunctions ordained by
Allah. These injunctions have to be
enforced in a Muslim society. The
significant thing to be noted is that the term
Hudood stands doubly sanctified because it
has been specifically termed as Hudood
1022
Allah. It signifies that these limits have been
prescribed by Allah. This is a reminder in
the peculiar style of Holy Quran because as
Creator of human specie He has honoured
every human being with valuable freedoms
which according to His Command have to
be protected in the larger interests of
human welfare, amity and peaceful social
conditions. Though the entire Holy Quran is,
no doubt, a revelation from Allah, yet the
reason for relating this particular term to
His Own Self was to make it emphatically
clear, particularly to the agencies assigned
the task of promulgation and
implementation of laws and administration
of justice, that utmost care has to be
observed in matters relating to adjudication

1023
of human rights in an Islamic society
because any violation of these rights would
be tantamount to transgressing the limits
prescribed by sacred texts. It is in this sense
that the protect of human rights has to be
appreciated because violation thereof has
been made cognizable as Hudood offences
by Holy Quran.

27. Ayah 103 Surah 10, Younas, of Holy

Quran contains a Divine Commitment that
Allah will save the believers but at the same
time Ayah No.95 of the same Surah warns
the believers not to be among those who
defy the Ordinances of Allah because such
rejecters shall be losers in the end. This is
what is repeated in Ayah 47 Surah 30, Ar-
1024
Rum of Holy Quran which declares that
Allah shall help the believers but this Divine
indulgence is subject to their obedience and
compliance with Injunctions of Islam. Ayah
182 Surah, 'Al-Aaraf, repeats the warning in
the following words:--

"We lead them (the rejecters of Divine

Commandments) step by step to an end
(whose condition they know not)"

It is pertinent to refer to yet another

principle enunciated in Ayah 42 Surah 8, Al-
Infaal, of Holy Quran. This is a principle of
universal significance. It states:-

1025
 "That who perished might perish by a
clear proof and he who survives might
survive by a clear proof."

PART-B

SUNNAH OF HOLY PROPHET PBUH

28. Detailed below are the traditions of the

Holy Prophet (PBUH) wherein the term
Hadood finds mention:

(I would not feel sorry for one who dies

1026
 because of receiving a legal punishment,
except the drunk.) (Sahih al Bukhari,
Kitab al Hudood,Vol. VIII, Hadith No.
769)

(They used to inflict the legal

punishments on the poor and forgive the
rich)

Sahih al Bukhari, Kitab al Hudood, Vol.

VIII, Hadith No. 778. Traditions
No.1916,1917 volume 2 Sahih Muslim
report the same tradition on the
authority of other companions.
Tradition No.967 volume 3 Sunan Abdu
Daud also narrates on the authority of
1027
 another companion.

(Do you intercede (with me) to violate

one of the legal punishment of Allah.)

(Sahih al Bukhari, Kitab al Hudood,Vol.

VIII, Hadith No. 779)

("O 'Allah's Apostle! I have committed a

legally punishable sin please inflict the
legal punishment on me.) Sahih al
Bukhari, Kitab al Hudood, Vol. VIII,
Hadith No. 812)

1028
(Nobody should be flogged more than
ten stripes except if he is guilty of a
crime the legal punishment of which is
assigned by Allah.) Sahih al Bukhari,
Kitab al Hudood, Vol. VIII, Hadith No.
831)

(No. punishment exceeds the flogging of

the ten stripes except if one is guilty of a
crime involving a legal punishment
prescribed by Allah.) (Sahih al Bukhari,
Kitab al Hudood, Vol. VIII, Hadith No.
832).

(Do not flog anyone more than ten

stripes except if he is involving Allah's
1029
 legal punishment. ") (Sahih al Bukhari,
Kitab al Hudood,Vol. VIII, Hadith Nos.
833, 1744, 1745 and 1746. This tradition
has also been reported at serial No.1966
volume 2, Sahih Muslim. Tradition
No.1078 volume 3 Abu Daud has also
narrated on the authority of other
companions.)

viii. Traditions Nos.969 and 970 Sunan Abu

Daud are to the effect that faults of good
people may be forgiven except Hudood;
and

ix. Tradition No.1976 volume 3 Sunan Abu

Daud contains the commandment that
1030
Hadd punishment be not inflicted in
Mosques.

29. The scope of Hudood is the prohibitions

imposed by Allah or His Apostle PBUH. The
sanctity attached to Divine prohibition is
best I illustrated by the following tradition
recorded in Sahih Muslim in Kitabul-
Masoqat, Bab Akhz ul Halal wa Tarkat
Shubahat, contains the following Tradition.

(Nu'man b. Bashir (Allah be pleased with

him) reported: I heard Allah's
Messenger (May peace b upon him) as
having said this (and Nu'man pointed
towards his ears with his fingers): what
1031
is lawful is evident and what is unlawful
is evident, and in between them are the
things doubtful which many people do
not know. So he who guards against
doubtful things keeps his religion and
honour blameless, and he who indulges
in doubtful 'things indulges in fact in
unlawful things, just as shepherd who
pastures his animals round a preserve
will soon pasture them in it. Beware,
every king has a pasture (preserve) and
the pasture (exclusive domain) of Allah
is His Ordinance of prohibition. Beware,
in the body there is a piece of flesh; if it
is sound, the whole body is sound, and if
it is corrupt the whole body is corrupt,
and hearken it is the heart.

1032
 PART C

HUDOOD AND TAZIR

30. The term Hadd and its plural Hudood, as

used in the above mentioned traditions of
the Prophet of Islam (PBUH), indicates that
it has been employed in the sense of
punishment prescribed by the Messenger of
Allah (PBUH). The essence of the well
known Hadith of the Holy Prophet (PBUH)
reported in Sahih Bukhari, and other
authorities is that:

1033
 "Earlier nations had perished simply
because punishment (Hadd) was
imposed only when a lowly commoner
had committed a crime but influential
persons were spared the agony of
punishment."

In this Hadith, the term Hadd very clearly

refers to the general punishments for
different categories of offences. This aspect
establishes, in turn, that the word Hadd in
the administration of criminal justice in an
Islamic society includes (any) specific
punishment awarded or prescribed under
or in pursuance of an Injunction of Holy
Quran or Sunnah. It may be profitable to
refer to a Tradition quoted by Hazrat Umar
1034
R.A. recorded by Muslim as Hadith No.269
in Kitab Salat ul Musafareen wus Qasarha.
According to this report many nations were
exalted because they followed the
ordinances prescribed in the Book while
many nations perished on account of non-
observance of Divine edicts.

31. The Muslim jurists, during the period

when the judicial system was evolving in
the light of and on the foundation of the
teachings of Islam, deemed it expedient to
classify punishments on the basis of proof
and the nature of proof for proper and
effective administration of justice. This
reasoning was based upon sacred text
because Holy Quran in addition to
1035
prescribing penalty also made reference to
the nature of proof. This classification
provided guidelines to the judges who were
assigned the task of holding trials of
different kinds of offences. These offences
entailed punishments prescribed by Holy
Quran, Sunnah, as well as any punishment
prescribed by State in .matters related with
Hudood or ancillary or akin thereto. The
first category was called Hadd par
excellence, while the latter came to be
known as Tazir. The purpose of assigning a
new title to the latter category of
punishment was only to emphasize the
standard and immutable nature of the
punishments under the title Hudood, as
ordained by Holy Quran and Sunnah.

1036
32. This classification of punishments into
Hadd and Tazir was made primarily for
pedagogical purposes. This classification
was never meant to be taken to limit the
wider scope of the term Hudood. The
Sunnah provides ample evidence to
establish the broad space the term Hadd
commands, as is evident also from the
sayings of the Holy Prophet (PBUH) quoted
in Part-B supra. This classification of
punishments into Hadd and Tazir cannot be
separated administratively or dissociated at
academic level. This is because
punishments are interrelated and
provisions dealing with one crime and its
consequent punishment is dove-tailed with
1037
other punishments related to the same
matter or same transaction. A person may
be found guilty of multiple crimes in the
same episode. Similarly if the standard of
proof required in a particular category of
offence is not forthcoming but the facts and
circumstances of the case are a conclusive
pointer towards, the guilt of the accused,
then punishment by way of tazir in a matter
relating to Hudood or akin thereto may be
awarded. In such a situation it is not
practicable to remand the case for a fresh
trial to a court specially created only to
award Tazir punishment. Similarly it would
be futile to prosecute an accused under
parallel laws in separate jurisdictions or
under two parallel systems. This is neither

1038
judicially viable nor is it in the interest of
justice. Such a thing would work to the
serious disadvantage of accused and would
certainly be a source of delay, irritation, un-
necessary embarrassment as well as
uncalled for harassment for the accused.
The witnesses for the prosecution will
suffer equally on account of multiple
litigation. This methodology of altering the
finding while maintaining or reducing the
sentence is now a universally recognized
principle which finds mention in the
criminal jurisprudence of Pakistan in the
shape of sections 423(i) and 439 of the
Code of Criminal Procedure.

33. It will thus be appreciated that it is

1039
because of sanctity of human body that
punishment is inflicted only when
transgression takes place. Islam therefore
proposes punishments in certain cases to
set a precedent that whenever a penalty is
to be proposed in future, in the uncovered
field, it must have legal sanction i.e, it must
be prescribed by an authority competent to
impose the punishment. It is in this
situation that the penalty can become a
legal punishment which in turn will be
covered by the term Hadd/Hudood.
Reference the principle of Hablin minum
Nass as enunciated in Ayat 112 Sura 3, Ale-
Imran of Holy Quran.

34. This explains the reason why the jurists

1040
enlisted a limited category of offences
within the scope of the term Hadood. It is
meaningful to note that the chapters
dealing with Hudood in the juristic literature
relating to Hadith and Fiqh do not deal
exclusively with offences whose
punishment has been fixed by Holy Quran,
Sunnah or Consensus. The unequivocal
mass of traditions and consequent legal
opinion of jurists as well as the judge made
law, spread over centuries, deal with all
kinds of punishments whether ordained_ by
Holy Quran, Sunnah, Ijma or enforced by
temporal authority through the instrument
of State, judicial hierarchy and legal experts.
It is therefore abundantly clear that any
federal or provincial law which authorizes

1041
any court, other than Federal Shariat Court,
to exercise appellate/revisional jurisdiction
in matters relating to or akin to Hudood
would be violative of Article 203-DD of the
Constitution and every decision or order
passed by such a court would be coram non
judice. The term tazir, whenever applied in
relation to the offences which partake of
Hudood offences or are analogous to or
auxiliary or supplementary to Hudood
offences would also be covered within the
scope and definition of Hudood. The reason
is obvious: Had the requisite evidence,
prescribed for Hadd, been made available
to the prosecution in relation to a matter
which, for some reason, has to be treated
as a tazir case or in another situation had

1042
the impugned action been completed, that
would have certainly been dealt with and
punished as a Hadd case.

35. I am consequently of the considered

view that all those acts, preparatory or
otherwise, which contribute towards the
commission of a Hadd crime, for which
specific punishment has not been provided
in Shariah, also becomes cognizable as a
Hadd offence. All tributary streams leading
to the reservoir of Haraam have been
plugged by Islam. The term La Taqrabu i.e.,
do not even go near: has been used by Holy
Quran at number of places in relation to
Hudood. Ayat 15 Sura 6, Al-Anam says:--

1043
 And do not even draw near Al-Fawahish
(the shameful things) be they open or
secret.

All extra-marital sexual relationships,

sodomy, nudity, false accusations of
unchastity, and taking a woman as a wife
who had been married to one's father, are
specifically reckoned as "shameful deeds."
According to Hadith, theft, taking
intoxicating drinks and begging have been
characterized as Fawahish, like several
other brazenly indecent acts.

1044
Man is required to abstain from them both
openly and in secret Ayat 32 Sura 17, Bani
Israeel may also be perused in this context:

Do not even approach Fornication for it

is an outrageous act, and an evil way.

Ayah 43, Surah 4, An-Nisa directs the

believers not to draw near to the Prayer
while they are intoxicated.

36. The words used in Article 203-DD are:

"relating to the enforcement of Hudood."
Like the words "in respect of" or "with
reference to" employed in some statutes,
1045
these words have a wider meaning and
connotation. The words "relating to"
includes all those matters which pertain to
the realm of preparation, intention,
attempt and all conceivable steps taken
towards the commission of an offence. Such
steps and actions on fulfillment, have the
potential of being covered by the penalty of
Hudood if the requisite evidence,
prescribed for proof of Hadd, is made
available. Short of that proof the action
complained of becomes punishable as tazir
for an offence which is of the specie of
Hadd. Tazir punishment is in lieu of Hadd
and is not the consequence of a separate
category of offence.

1046
37. The basic reason for retaining the
offence of fornication etc. in the Hudood
Laws of 1979 was that Tazir as punishment
is invariably awarded in such cases because
the proof in these offences depends either
upon circumstantial evidence or upon
production of less than four adult male
Muslim witnesses without undergoing the
process of Tazkia al Shahood. Such an
eventuality presupposes that the case is
either of the category of circumstantial
evidence or less than the required oral
testimony. There may be no direct evidence
which however would not be conclusive
proof that the offence of Zina had not taken
place. It is the mode and manner of proof of
the offence alone that determines whether

1047
the punishment has to be awarded as Hadd
or Tazir. An occurrence of rape, brought to
the notice of the Holy Prophet PBUH, was
decided on the solitary statement of the
victim and the punishment provided for
Hadd was awarded even though the case
fell clearly under the category what we now
call Tazir. It therefore follows that whether
it is a case of consensual extra-marital
sexual activity, or rape or incestuous
adultery or any related pursuit ancillary and
akin to or leading upto extra-marital sexual
activity, the investigation, enquiry or trial of
such a matter is covered within the scope of
the term enforcement of Hadd and hence in
the exclusive jurisdiction of Federal Shariat
Court.

1048
38. A legal instrument which bars a court
from taking cognizance of offences or
hearing appeals and revisions not only
affects the jurisdiction of the court but
seriously jeopardizes the fundamental right
of an aggrieved person to have access and
recourse to speedy justice. Jurisdiction
conferred by a constitutional provision
cannot be erased by ordinary piece of
legislation. It is an accepted principle of law
that jurisdiction of superior court cannot be
taken away except by express words. In
particular a jurisdiction or power conferred
by constitutional apparatus can be taken
away only through an express constitutional
amendment and nothing short of that. An
1049
ordinary statute cannot take away powers
of a superior court conferred by
Constitution. Such a statute is ex-facie
discriminatory.

39. On the civil side the term Hudood

includes

(a) Marital life,

(b) the mandatory bridal gift commonly

known in our country as Haq-e-Mehr,

(c) Inheritance,

1050
 (d) Guardianship of person and property
of minors and persons with defective
legal capacity,

(e) Marriages (in particular polygamy),

(f) Divorce including Khula and Ziher

and

(g) Inheritance.

From amongst these matters we have taken

suo motu notice only of sections 5, 14 and
1051
25A of West Pakistan Family Courts Act,
1964 as well as section 29 of Act VI of 2006
whereby new clause vii a, liar: has been
added in section 2 of the Dissolution of
Muslim Marriages Act, 1939.

40. In this view of the matter it is being held

that those offences, whose punishment was
either prescribed or left undetermined but
it relates to acts forbidden or made
cognizable by Holy Quran, Sunnah,
Consensus or by subsequent legislative
instruments including all those acts which
according to the Statute Book of Pakistan
are akin, auxiliary, analogous or
supplementary to or germane with Hudood
offences including preparation or abetment
1052
or attempt to commit such offences, would,
without fail, fall within the meaning and
scope of the term Hudood. Proceeding
arising out of a private complainant, crime
report registered with police as F.I.R.,
information laid before a Magistrate by a
person other than a police officer or upon
its motion by a judicial officer or judicial
proceedings arising out of an interim order
or final verdict of acquittal or conviction in
relation to an offence covered by the term
Hudood, whether in the form of an appeal,
revision or reference, would fall within the
jurisdiction of Federal Shariat Court. The
category of offences that are covered by
the term Hudood will be determined in
detail while discussing issue (h) in this

1053
judgment. It may be stated here that the
fact that legislation in Muslim societies in
the uncovered field has been made
permissible as is evident from the principle
Hablin Min un Naas enunciated in Ayat 112
of Sura 3 Ale Imran. The word Habal does
not only mean rope but it also means
Command and mandate. The State is
therefore competent to promulgate laws to
implement and enforce Injunctions of Islam.

ISSUE No. (d)

OVERRIDING CLAUSES OMITTED

1054
41. Section 11 of Act VI of 2006 has omitted
section 3 of Ordinance VII of 1979. Section 3
before repeal read as follows:-- .

3. Ordinance to override other Laws.---

The provision of this Ordinance shall
have effect notwithstanding anything
contained in any other law for the time
being in force,"

Section 28 of the said Act has omitted the

similar text contained in section 19 of
Ordinance VIII of 1979. Both the omitted
sections had given overriding effect to the
provisions of Ordinances VII and VIII of
1979. These were Non-obstante clauses
1055
which had created exceptions. This
protective cover to the Hudood Laws of
1979 was further strengthened by Chapter
3A, Part VII of the Constitution which had
introduced Article 203-A in the Constitution
from 26`h May, 1980. Thereafter Article
203-DD in the present form, was
incorporated in the Constitution in the year
1982. Section 3 and section 19 of the said
two Hadood Ordinances thus acquired
constitutional protection which could not
have been repealed/omitted or even
amended by Act VI of 2006. Moreover the
effect of sections 11 and 28 of the Act is to
curtail the constitutional jurisdiction
guaranteed in Article 203-DD of the
Constitution and this step cannot be legally

1056
undertaken through ordinary legislation.
The effect of constitutional protection can
be altered only through constitutional
amendment and not otherwise. As a result
thereof the introduction of sections 11 and
28 of the Act is an unwarranted inroad in
the legislative domain and consequently an
unlawful interference in the enforcement of
Hudood. Hence it is being held to be
repugnant to the Constitution as well as
Injunctions of Islam. Section 3 of Ordinance
VII of 1979 and section 19 of Ordinance VIII
of 1979 shall be deemed not to have been
repealed and are hereby declared as valid
and essential part of the two Hudood laws.

ISSUE NO. (e)

1057
 JURISDICTION IN BAIL MATTERS

42. Bail matters in Hudood cases, during

investigation or during trial, are initially
decided by the Court of Sessions which is
seized of the matter. An order granting or
refusing bail was, as per practice after 1980,
challenged before the High Courts. The
reason for not moving the Federal Shariat
Court, the Court which had appellate and
revisional jurisdiction in all Hudood cases,
was the existence of a judgment delivered
by a learned single Judge of the Lahore High
Court in the case of Muhammad Rafiq and
others Versus The State, PLD 1980 Lahore

1058
708 at page 718 wherein the extent of
jurisdiction of the High Court under section
498, Cr.P.C. in matters relating to Hudood
offence was discussed. It was held that
jurisdiction of the High Court was not
ousted by any specific provision or by
necessary intendment. The learned single
Judge had essentially relied upon the
erstwhile text of Article 203-DD of the
Constitution which, on 8th September 1980
i.e., the date of announcement of the said
High Court single judge judgment, was to
the following effect:

"The Court shall have such other

jurisdiction as may be conferred on it by
or under any law."
1059
This Article was, however, substantially
amended subsequently. The amended text,
reproduced in an earlier paragraph of this
judgment, was introduced in the
Constitution with effect from 22nd March
1982 by virtue of Constitution (Second
Amendment) Presidential Order No.5 of
1982 whereby the above-mentioned
original text of Article 203-DD was retained
as clause three in the amended Article 203-
DD. Consequently this precedent, on
account of the said constitutional
amendment of a later date lost its relevance
as from 22nd March, 1982. The case of
Muhammad Rafique, supra, ought to have
been revisited in the light of the
1060
constitutional amendment. It was not done.
Anyhow it is being over-ruled now to make
thing clear. The ouster of jurisdiction
particularly of a superior court has to be
stated in very clear terms. The jurisdiction
vesting in a court by virtue of constitutional
provisions undoubtedly stands at a higher
level. It cannot be curtailed by routine
legislation. Moreover the constitutional bar
mandated by Article 203-G of the
constitution needs careful consideration.
According to this Article "no court or
tribunal including the Supreme Court and a
High Court, shall entertain any proceedings
or exercise any power or jurisdiction in
respect of any matter within the powers or
jurisdiction of the court". The word used in

1061
this Article is "proceedings". This word has
been interpreted in the case of Zahoor Elahi
Versus State PLD 1977 SC 273 wherein it
was held that "proceedings" do not mean
proceedings which have already been
concluded. The word "proceedings"
includes all matters connected with or
ancillary to the trial of a person charged
before a special tribunal including the
matters relating to grant of bail. It was
further found that when "proceedings"
conclude, they result in an "order" or
"sentence". In this context it is worth
mentioning that Article 203-DD has
employed the following four words:

(a) finding,
1062
 (b) sentence,
(c) order and
(d) proceedings.

The word order includes both final and

interlocutory order (p.310 of the said
report). Since an order, whether final or
otherwise, of the Sessions Court, trying a
Hudood matter, can be challenged under
constitutional provision before the Federal
Shariat Court alone, the remedy to move
the Federal Shariat Court by way of appeal
was consequently made available under
Hudood laws to a person aggrieved of an
order of trial court. He could file an appeal
against final order and a revision in certain
1063
other matters before the Federal Shariat
Court because the Sessions Court was
holding or had held the trial relating to
Hudood offence. It may be profitable also
to refer again to page 313 of the said
report wherein it was held that the
jurisdiction conferred upon the courts by
Constitution overrides all laws. Reliance
was placed on the case of Malik Ghulam
Jilani Versus Government of Pakistan PLD
1967 Supreme Court 373 and Government
of Pakistan Versus Begum Agha Abdul
Karim Shorish Kashmiri PLD 1969 SC 14. It
can therefore be rightfully stated that the
power exercised by the Federal Shariat
Court under the Constitution overrides all
laws. Article 203A states that the

1064
provisions of Chapter 3A of Part VII of
Constitution shall have effect
notwithstanding anything contained even in
the Constitution.

43. The matter of bail is related with the

offence. Bail is applied for by an accused
only when an offence is alleged to have
been committed. If an offence is covered
by Hudood the trial takes place under the
law relating to Hudood. The appeal or
revision in such proceedings is therefore
within the cognizance of Shariat Court. The
order of grant or refusal to grant in such
offence is therefore part of proceedings of
trial of Hudood cases and hence cognizable
by Federal Shariat Court alone.
1065
44. As a consequence of what has been
stated above issue (e) is answered in the
negative. The result of the discussion is
that an order on an application for grant
or refusal of bail by trial court in all
categories of offences within the ambit of
Hudood is covered by the term
proceedings, as employed in Article 203 DD
and hence within the scope of the term
"any case", "any criminal court" and "under
any law" and therefore can be impugned
only before the Federal Shariat Court
which hat the exclusive jurisdiction in all
sorts of matters related with enforcement
of Hudood. No other court, including a
High Court, will, in future, entertain
1066
proceeding relating to bail in offences
covered by the term Hudood.

ISSUE NO.(f)

STATUS OF ACT XXV OF 1997

45. Sections 9, 48, 49 and 51 of the Control

of Narcotic Substances Act, 1997 (Act XXV
of 1997) are also under consideration of
this Court. The reason for examining these
provisions is because of the fact that
cultivation of narcotic plants or
possession, sale, purchase, use, import;
export, and manufacture of narcotics is
1067
covered by the term Hudood as all
categories of intoxicants are prohibited on
account of Injunctions of Islam. A larger
Bench of this Court in the case of
Muhammad Aslam Khaki v. Federation of
Pakistan PLD 2010 FSC 191 at page 205
(Paragraphs 18 and 19) held as under:--

"It may be mentioned that though the

word "Khamr" which was normally
used for wine, literally means what
obscures the intellect and thus it
includes other intoxicant drinks made
from wheat, barely, raisins and honey.
The Prophet (PBUH) extended the
prohibition of wine etc. to all
intoxicants, in any form. In this regard
1068
we find innumerable categorical
statements from the Prophet (PBUH)
mentioned in so many Traditions. (See
Bukari, `Wudu', 71 `Maghazi', 60,
`Ashribah', 4, 10, `Adab', 8, `Ahkam',
22, Muslim, `Ashribah' 67-9; Abu Daud,
`Ashribah', 5, 71; Ibn Majah, `Ashribah',
9, 13, 14; Darimi, `Ashribah', 8,9;
Muwatta", `Dahayat', 8: Ahmed b.
Hanbal, Musnad, Vol. 1, pp. 274, 289,
350, Vol. 2, pp. 16, 158, 171, 185, 329,
501; Vol. 3, pp.66, 112, 119, 361, Vol.
4, pp. 4, pp.41, 416; Vol. 6, pp. 36, 71,
72, 97, 131 and 226-Ed). (Emphasis
added)

As stated above, the Prophet (PBUH)

1069
further enunciated the following
principles:

(a) whatever causes intoxication when

used in large quantity is prohibited,
even in a small (sic).

(b) If a large quantity of something

causes intoxication, to drink even a
palmful of it is prohibited; (See Abu
Daud, `Ashribah', 5; Ibn Majah,
Ashribah;, 10; Ahmed B. Hambal,
Musnad, Vol. 2, pp.167, 179 and Vol.3,
p. 343-Ed)."

1070
Section 2(s) and (t) of Act XXV of 1997
defines "narcotic drug" and "opium."
Section 4 through section 9 as well as
setions 48, 49 and 51 of this Act make
provision as follows:-

(i) Section 4: Prohibition of cultivation of

narcotic plants;

(ii) Section 5: Punishment for

contravention of section 4;

(iii) Section 6: Prohibition of Possession of

narcotic drugs etc.

1071
(iv) Section 7: Prohibition of import or
export of narcotic drugs etc.

(v) Section 8: Prohibition on trafficking or

financing the trafficking of narcotic
drugs etc.

(vi) Section 9: Punishment for

contravention of sections 6, 7 and 8;

(vii) Section 48: Appeal;

(viii) Section 49: Transfer of cases;

1072
 (ix) Section 51: No bail to be granted in
respect of certain offences;

Section 48 states that an appeal against the

order of a Special Court comprising a
Sessions Judge or an Additional Sessions
Judge shall lie to the High Court whereas
section 49 ibid confers the power to
transfer (within its territorial jurisdiction) a
case from one Special Court to another
Special Court. It has already been held 'in
this judgment exclusive jurisdiction was
conferred upon Federal Shariat Court in all
matters relating to enforcement of Hudood
under Article 203DD of the Constitution.
Chapter 3A in Part VII of the Constitution
relates to the Federal Shariat Court. The
1073
first Article of this Chapter is non obstante
in nature. Article 203G states that "no court
or tribunal including Supreme Court and a
High Court shall entertain any proceedings
or exercise any power or jurisdiction in
respect of any matter within the power or
jurisdiction in respect of any matter within
the power or jurisdiction of the Court."

46. Section 48 ibid provides that an appeal

against conviction by a Special Court would
lie in the High Court. But offences relating
to narcotics/intoxicants falls within the
ambit of Hudood. This is an anomalous
position and not capable of rational
justification. This incongruous aspect is well
illustrated in the case of Muhammad Boota
1074
and others v. The State 2002 YLR 1142,
decided by a Division Bench of the Lahore
High Court on an appeal against conviction
recorded by Special Court Sargodha
constituted under the Anti-Terrorism Act,
1997 when the charge framed was for
abduction and Zina bil Jabr under section
10(4) read with section 11 of Offence of
Zina (Enforcement of Hudood) Ordinance,
VII 1979. The offences in this case are
obviously related to Hudood but the appeal
against the final judgment delivered by
Special Court ATA, Sargodha was moved
before the High Court under section 25 of
Anti-Terrorism Act, 1997. The appeal had
in-fact to be filed before the Federal Shariat
Court because Constitution has conferred

1075
exclusive jurisdiction upon Federal Shariat
Court in all Hudood related offense. The
Federal Government, however in exercise
of its power under section 34 of Act XXVII of
1997, amended the Schedule vide
Notification No.SRO 663(i)/97 dated 21-8-
1997 and brought certain Hudood offences
within the jurisdiction of the Special Court
without corresponding amendment in
section 25 of Act XXVII of 1997 by adding a
proviso that appeals in Hudood matters
would lie before the Federal Shariat Court.
This omission violated the constitutional
provision contained in Article 203-DD. In
this view of the matter it becomes crystal
clear that the offences relating to narcotic
drugs are within the purview of Hudood and

1076
consequently an order, final or interim
including grant or refusal of bail, passed by
any court, special or ordinary, under any
law, regarding an offence relating to
Hudood is within the jurisdiction of the
Federal Shariat Court and no other court,
including a High Court, has the power to
entertain bail matter or an appeal or
revision in any such matter. Consequently
the text of sections 48 and 49 of Act XXV' of
1997 has now to be suitably amended to
restore jurisdiction of Federal Shariat Court
in matters relating to enforcement of
Hudood. No legal instrument, other than
constitutional amendment, as stated
earlier, can limit or ignore the exclusive
jurisdiction of Federal Shariat Court

1077
mandated under Article 203-DD of the
Constitution. Similarly if an offence of the
nature of Hudood is tried under Anti-
Terrorism Act, 1997 (Act No. XXVII of 1997)
the appeal in all such cases under section
25 of Act XXVII of 1997 or for that matter
bail under section 21-D ibid shall lie before
the Federal Shariat Court and not a High
Court. Consequently the following two
steps will have to be taken to set the matter
right:--

a. words Federal Shariat shall be

substituted for the words High Court
occurring in Sections 48(i) and 49(i) of
Control of Narcotic Substances Act, 1997
(Act XXV of 1997) and
1078
b. a rider will have to be put in section
25 of the Anti-Terrorism Act, 1997 (Act
XXVII of 1997) to state that appeal in
cases relating to Hudood shall lie to the
Federal Shariat Court. Any order, interim
or final, passed by a Terrorist Court
constituted under Act XXVII of 1997, in
relation to a Hadd offence, shall be
appealable or revisable only before the
Federal Shariat Court. The wordings of
section 25 Act XXVII of 1997 should be
suitably amended to make it clear that a
High Court shall have jurisdiction in all
cases under the Act except Hudood
matters. The above findings shall
become operative after the specified
1079
 period. The basic reason is that no legal
instrument other than a Constitutional
provision can limit the jurisdiction of
Federal Shariat Court.

47. In this view of the matter and for

reasons recorded under Issues (a) through
(d) as well, this issue is answered in the
affirmative. Sections 48 and 49 of Act XXV
of 1997 and section 25 of Act XXVII of 1997
are hereby held to be violative of Article
203-DD to the extent that R the jurisdiction
of the Federal Shariat Court is ousted in
matters relating to grant of bail or hearing
appeals or ordering transfer of cases from
one court to another court in cases
registered or charged with Hudood
1080
offences.

ISSUE NO.(g)

LIAN

48. Section 25 of the Act has repealed

subsections (3) and (4) of section 14,
Ordinance VIII of 1979 and section 28 of the
Act adds clause (vii a) Lian in section 2 of
the Dissolution of Muslim Marriages Act,
1939. Both the interpolations have altered
the legal composition of the institution of
Lian which developed on the basis of
express injunctions of Holy Quran contained
1081
in Ayaat 4 through 9 of Surah 24, An-Nur.
Section 14 of Ordinance VIII of 1979 had in
fact given legislative effect to an Injunction
of Islam. The effect of repealing subsections
(3) and (4) of Section 14 of Ordinance VIII of
1979 is to stifle the operation of an
Injunctions of Holy Quran relating to the
enforcement of Hudood which is not only
repugnant to the injunctions contained
Ayaat 44, 45 and 47 of Surah 5 and Surah
An-Nur but is also a clear violation of Article
203DD of the Constitution. Similarly section
28 of the Act becomes repugnant to the
Quranic Injunctions because as soon as the
Tian proceedings conclude the following
results ensue:

1082
 (i) the husband is not liable for
punishment for 'making false
accusation,

(ii) the wife is absolved of the calumny

and

(iii) on account of such a serious breach

between the couple, the court without
further proof or additional
proceedings, declares the marriage to
be dissolved with all legal
consequences of a valid divorce.

49. It is time that attention is paid to the

1083
style in which Surah An-Noor was revealed.
It opens with the words:

"This is a Sura which

WE have revealed and the
Ordinance which
WE have Made obligatory

The emphasis on the mode and style of

revelation lends added importance to the
injunctions contained in the Surah. This is
extra-ordinary way adopted by Holy Quran.
Like Shirk the illicit sex and false accusation,
against chaste woman have been dealt with
seriously. Even though the whole of Quran
1084
is Divine Revelation yet the revelations in
Surah Nur have been specifically declared
as His revelation. In this view of the matter
the repeal effected by the Act is in utter
violation of the Injunctions of Islam as
mentioned above.

ISSUE NO.(h)

CLASSIFICTION OF PUNISHMENTS AND

OFFENCES COVERED BY HADOOD

50. This issue deals with categories of

punishment that can be awarded under
Islamic Jurisprudence. This issue will be
1085
discussed in two parts. Part-A will deal with
classification of punishments and Part-B will
deal with Offences covered by the term
Hudood. The punishments may therefore
be classified as under:--

A. CLASSIFICATION OF PUNISHMENTS

51. i. Primary Punishments, i.e. Punishments

prescribed for homicide, fornication,
adultery, theft, etc. These punishments are
prescribed by NASS wherein the Judge has
no discretion in deciding the nature and
quantum of sentence when the case has
been proved;

1086
ii. Substitutory Punishments: i.e. cases
where instead of primary punishments,
discretionary penalties can be sanctioned
by State and awarded by courts;

iii. Consequential Punishment: It is in the

nature of an additional penalty consequent
upon commission of an independent but
cognizable offence; e.g. when a killer on
proof of his guilt, by operation of law, is
also deprived from inheriting the estate of
the victim whose death was caused by his
criminal act i.e. the act of the prospective
heir, or where the property recovered from
a thief is directed by the court to be

1087
restored to its real owner;

iv. Maximum or Minimum Punishment: i.e. a

situation where the Judge exercises
discretion, in given circumstances and facts
of a particular case not covered by primary
punishments, to award maximum or
minimum penalty i.e. a penalty between
the two extremes;

v. Discretionary Punishments: i.e, instances

where the Judge has the discretion even to
let off an accused after administering
rebuke or he may award any other
appropriate sentence in the facts and
circumstances of the case;
1088
vi. Section 53 of the Pakistan Penal Code
was substituted as a result of the process of
Islamization of laws initiated under Article
227 of the Constitution through the
medium of Criminal Law (Second
Amendment) Ordinance, 1990: (Later on it
became permanent law as Act 11 of 1997)
and the following ten categories of
punishments, duly recognized by Islamic
Jurisprudence, were incorporated therein.

Firstly Qisas
Secondly Tazir
Thirdly Diyat
Fourthly Arsh
1089
 Fifthly Daman
Sixthly Death
Seventhly Imprisonment for life
Eighthly Imprisonment of
either description,
namely:-
(i) Rigorous with
hard labour;
(ii) Simple
Ninthly Forfeiture of
Property;
Tenthly Fine.

As noted elsewhere these amendments in

the Penal Code were the consequence of
certain verdicts of the Federal Shariat Court

1090
and the recommendations made by Council
of Islamic Ideology.

52. Section 299 occurring in Chapter XVI of

the Pakistan Penal Code, entitled: of
Offences Affecting The Human Body,
defines Arsh, Daman, Ikrah-e-tam, Ikrah-e-
Naqis, Qatl, Qisas and Tazir. It is worth
noting that section 299 of Pakistan Penal
Code, inter alia, defines Qisas. The various
definitions are detailed below:--

"299 Definitions.---In this Chapter,

unless there is anything repugnant in
the subject or context,--

1091
(a) "arsh" means the compensation
specified in this Chapter to be paid to
the victim or his heirs under this
Chapter;

(b) "daman" means the compensation

determined by the Court to be paid by
the offender to the victim for causing
hurt not liable to arsh;

(c) "diyat" means the compensation

specified in Section 323 payable to the
heirs of the victim;

1092
(d) "Government" means the Provincial
Government;

(e) "ikrah-e-tam" means putting any

person, his spouse or any of his blood
relations within the prohibited degree
of marriage in fear of instant death or
instant permanent impairing of any
organ of the body or instant fear of
being subjected to sodomy or zinabil-
jabr;

(f) "ikrah-e-naqis" means any form of

duress which does not amount to
Ikrah-i-tam;

1093
 (g) "gatl" means causing death of a
person;

(h) "qisas" means punishment by

causing similar hurt at same part of
the body of the convict as he has
caused to the victim or by causing his
death if he has committed Qatl-e-amd,
in exercise of the right of the victim of
a wali. (Emphasis Added)

The definition of Qisas adopted by Pakistan

Penal Code is indicative of the fact that the
retributive punishments prescribed by Holy

1094
Quran have been enforced as Hudood
under the criminal jurisdiction in the courts
of Pakistan. In this view of the matter the
appellate or revisional jurisdiction over
trials in cases of injuries against human
body would be the exclusive domain of
Federal Shariat Court. The word Hadd has
also been defined in the Enforcement of
Hudood Laws of 1979. Different kinds of
hurts and punishments, as prescribed by
Islamic teachings, are also included in this
newly added Chapter XVI of the Penal Code.
Section 338-F ibid, occurring in this chapter,
additionally mandates as follows:-

"Interpretation:-In the interpretation

and application of the provisions of this
1095
 Chapter, and in respect of matters
ancillary or akin thereto, the court shall
be guided by the Injunction of Islam as
laid down in the Holy Quran and
Sunnah. "(Emphasis Added)

It is in this background that the expanse of

the term enforcement of Hudood as used in
Article 203-DD of the Constitution has to be
appreciated, understood and interpreted. It
is now time to analyse the term
enforcement of Hudood.

53. In the field of criminal law, the Holy

Quran has employed the term QISAS as
retaliatory punishment for certain
1096
categories of offences against human body.
The punishments are mentioned in the
revealed text. Hence these are
INJUNCTIONS and have to be implemented.
This is also a constitutional obligation. The
following Ayaat of Holy Quran will illustrate
the point:-

"(i) Ayah 178 Surah 2 (Al-Baqarah)

"Believers! Retribution is prescribed for

you in cases of killing: if a freeman is
guilty then the freeman; if a slave is
guilty then the slave; if a female is guilty,
then the female. But if something of a
murderer's guilt is remitted by his
1097
brother this should be adhered to in
fairness, and payment be made in a
goodly manner. This is alleviation and a
mercy from your Lord; and for him who
commits excess after that there is a
painful chastisement."

(ii) Ayah 179 Surah 2 (Al-Baqarah)

"People of understanding, there is life

for you in retribution that you may
guard yourselves against violating the
law."

(iii) Ayah 194 Surah 2 (Al-Baqarah)

1098
"The sacred month for the sacred
month; sanctities should be respected
alike (by all concerned). Thus, if
someone has I attacked you, attack him
just as he attacked you, and fear Allah
and remain conscious that Allah is with
those who guard against violating the
bounds set by Him."

(iv) Ayah 45 Surah 5 (Al-Maidah)

"And therein We had ordained for them:

"A life for a life, and an eye for an eye,
and a nose for a nose, and an ear for an

1099
 ear, and a tooth for a tooth, and for all
wounds, like for like. But whosoever
foregoes it by way of charity, it will be
for him expiation." Those who do not
judge by what Allah has revealed are
indeed the wrong=doers." (Emphasis
Added)

54. It may be useful to refer to Ayah 24

Surah 4, An-Nisa of Holy Quran, at the risk
of repetition, which proclaims that the
commandments given by Allah in the Holy
Quran have a binding force upon the
believers. This declaration comes at the end
of the list of prohibitions prescribed by Holy
Quran. This edict cannot be ignored and has
to be taken seriously.
1100
55. Let us now revert to the term
Hadd/Hudood as used in various legal
instruments in force in Pakistan. The term
Hudood has been employed in Article 203-
DD (1) of the Constitution but this term, it
appears, has purposely not been defined
therein. It indicates clearly that this
question was left for the Federal Shariat
Court to define because this very clause
proceeds to confer exclusive jurisdiction
upon this Court to deal with matters
relating to Hudood. Moreover, the
Constitution has created only one forum
under the designation Federal Shariat
Court, which has the exclusive jurisdiction
(Article 203-D) to examine the question
1101
whether any law is repugnant to the
Injunctions of Islam. It is therefore the
domain of the solitary constitutional
institution, known as Federal Shariat Court,
to lay down what the law on the subject is.
Reference may be made to the case. of
Asma Jilani versus Gove 'nment of the
Punjab, reported as PLD 1972 Supreme
Court 139 Justice Yaqub Ali (as his Lordship
then was) at page 230 held as under:-

"Law" was not defined in the

Constitution. It is, therefore, for the
Courts to lay down what "law" is, and if
any decree, or behest of Yahya Khan
expressed as a Martial Law Order,
Martial Law Regulation or Presidential
1102
 Order, or Ordinance, does not conform
to the meaning of the term `law' in
Article 2 these Regulations, Orders and
Ordinances will be void and of no legal
effect." (Emphasis Added)

It is thus the domain of Superior Courts to

assign meanings to those words and terms
which, used technically by jurists, and
employed in legislative instruments, have
been wilfully left undefined by legislature.
The definition of the term Hudood, as may
be settled in the light of Injunctions of Islam
by the Federal Shariat Court, will therefore
determine the meaning of the term as well
as the extent of its jurisdiction.

1103
56. The term Hadd as mentioned above, has
also been given a meaning in Ordinance VI
of 1979, Ordinance VII of 1979, Ordinance
(VIII bf 1979) and President's Order No.4 of
1979. This meaning is in tune with the
arguments advanced above. According to
this definition the term Hadd means a
punishment "ordained by Holy Quran or
Sunnah ". This definition has not been held
to be repugnant to the Injunctions of Islam
in the three decades of its application.

57. Chapter 3-A of Part VIII of the

Constitution, dealing with the Federal
Shariat Court, contemplates very vividly

1104
that the Shariat Court, shall be guided in its
decisions and findings by the Injunctions of
Islam as laid down in the Holy Quran and
the Sunnah of the Holy Prophet (PBUH).
Likewise, Article 227 (1) of the Constitution
prescribes that all existing laws shall be
brought in conformity with the Injunctions
of Islam as laid down in the Holy Quran and
the Sunnah and further that no law in
future shall be enacted which is repugnant
to these injunctions. The ultimate role of
examining the vires of an impugned legal
instrument on the touchstone of Injunctions
of Islam is therefore the exclusive preserve
of the Federal Shariat Court as mandated by
Article 203D of the Constitution of Islamic
Republic of Pakistan. The parliament is

1105
debarred from enacting a law which is
repugnant to the Injunctions of Islam. This
reality amounts to a declaration in loud
terms that the statute book of Pakistan has
to be in conformity with the Injunctions of
Islam and consequently the term Hudood
has, in fact, to be defined in the light of
Injunctions as laid down in the Holy Quran
and the Sunnah. The term Hudood
according to the meaning and scope of
various Injunctions of Islam, referred to
above, includes every activity which falls
directly or indirectly within the mischief of
11 offences tabulated in the next section.

58. In literary and legal parlance some

words in the field of law, science,
1106
philosophy etc. assume a wider meaning
than the actual dictionary meanings. This is
also the case with the expression Hudood. It
includes the term Tazir. A parallel may be
conveniently drawn from the term viz major
or force majeure. The term force majeure
according to law lexicons means irresistible
force or compulsion; circumstances beyond
one's control. The expression force majeure
`is not a mere French version of the Latin
expression vis major.' The term force
majeure has therefore become a term of
wide import. Strikes, breakdown of
machinery, which, though normally not
included the term vis major are included in
force majeure.

1107
B. OFFENCES COVERED BY THE TERM
HUDOOD

59. It is therefore time to recapitulate the

scope of the term Hudood. In the light of
the foregoing discussion the following
categories of offences are therefore
covered sby the term Hudood:

(i) Zina = Adultery, Fornication and Rape.

(ii) Lawatat= Sexual intercourse against

the order of nature;

1108
(iii) Qazaf = 'Imputation of Zina;

(iv) Shurb = Alcohlic

drinks/Intoxicants/Narcotics etc;

(v) Sarqa = Theft simplicitor;

(vi) Haraba = Robbery, Highway Robbery,

Dacoity. All categories of offences
against property as mentioned in
Chapter XVII of Pakistan Penal Code.

(vii) Irtdad= Apostacy;

1109
(viii) Baghy =Treason, waging war against
State; All categories of offences
mentioned in Chapter VI of the
Pakistan Penal Code and

(ix) Qisas = Right of retaliation in offences

against human body. All these
offences are covered by definition
Hadd because penalty therein has
been prescribed by Nass/Ijma.

Abdul Qadir Audah, has discussed to

some extent the scope of Hadd .in his
treatise Tashree ul Janai al Islam,
Volume 1 at page 119.

1110
 (x) Human Trafficking.

Reference Ayah 90 Surah 16 of Holy Quran

where Fhashaa, Munkar and Baghee have
been forbidden.

60. It is immaterial for the purpose of the

petitions under discussion whether penal
provisions relating to
Qisas/kidnapping/abduction/
enticing/fornication/adultery/rape/un-
natural offences/prostitution/buying or
selling a person for sexual purposes;
theft/Haraba/Drinking alcoholic liquor or

1111
sale, purchase, manufacture, import or
export or possession of
intoxicants/Narcotic, alcoholic liquors of
various categories, theft, extortion, waging
war against state or offences against human
body, false imputations, etc, are retained in
Pakistan Penal. Code, or `President's Order
No.4 of 1979, Ordinance VI of 1979,
Ordinance VII of 1979, Ordinance VIII of
1979, or even Control of Narcotic
Substances Act No. XXV of 1997 Prevention
and Control of Human Trafficking
Ordinance, 2002 (Ordinance LIX of 2002) or
any other legal instrument for the time
being in force. What is material is that all
such offences relating to enforcement of
Hadd as ordained by Holy Quran and

1112
Sunnah are within the exclusive jurisdiction
of the Federal Shariat Court before or after
the trial has been initiated or completed by
any criminal court (of course under any law)
and no. other court would exercise
appellate or revisional powers over such
criminal cases initiated either on police
report or by way of complaint direct in the
court or at the instance of the Court itself.

61. In the case of Dr. Muhammad Aslam

Khaki v. Federation of Pakistan reported in
PLD 2010 FSC page 191 a Bench consisting
of four Hon'ble Judges of the Federal
Shariat Court, after considering different
view points found that a sin does not mean
Haram only. There is no doubt in the mind
1113
of any Muslim that Quran and Sunnah shall
always serve as a sure guide in determining
what are major sins. In many societies sins
are distinguishable from crimes but in some
cultures sins are inseparable from crimes. In
an Islamic society sins are crimes and not
separate entities. In the said report it was
also held in paragraph 24 that the State is
duty bound to enforce that which is
prohibited and inflict requisite punishment
to the transgressors.

ISSUES Nos.(b) and (i)

JURISDICTION AND JUDICIAL POWER AND

JURISDICTION
1114
62. We consider it expedient to examine
this issue relating to the Judicial power,
Jurisdiction and allied matters as these
points are intrinsically related to Issues Nos.
(b) and (c) discussed above. This issue will
therefore be discussed under 08 following
distinct heads:-

A. JURISDICTION IN GENERAL

B. NATURE OF ARTICLE 203-DD

C. REVISIONAL CUM APPELLATE

JURISDICTION
1115
D. TERMS: ANY CASE, ANY COURT, ANY
LAW

E. TERM: ENFORCEMENT OF HUDOOD

F. FOUNDATION AND SCOPE OF

ARTICLE 203D

G. DECISIONS OF FEDERAL SHRIAT

COURT

H. FEDERAL SHARIAT COURT AND

COUNCIL OF ISLAMIC IDEOLOGY.
1116
 A. JURISDICTION IN GENRAL

63. Jurisdiction is the right to hear and

determine and the result of this exercise is
the judgment of the Court. Deniels v.
Tarney, 102 U.S. 415, 26 L.ED. 187.

64. Justice Hamood-ur-Rehman, Hon'ble

Chief Justice Supreme Court of Pakistan, in
the case of State Versus Zia-ur-Rehman PLD
1973 Supreme Court 49 at pages 69-70,
explained the scope of the terms "Judicial
Powers" and "Jurisdiction" in the following
words:-

1117
"So far, therefore, as this Court is
concerned it has never claimed to be
above the Constitution nor to have the
right to strike down any provision of the
Constitution. It has accepted the
position that it is a creature of the
Constitution; that it derives its powers
and jurisdictions from the Constitution;
that it derives its powers and
jurisdictions from the Constitution; and
that it will even confine ,itself within the
limits set by the Constitution which it
has taken oath to protect and preserve
but it does claim and has always claimed
that it has the right to interpret the
Constitution and to say as to what a
1118
particular provision of the Constitution
means or does not mean, even if that
particular provision is a provision seeking
to out the jurisdiction of this Court.

This is a right which it acquires not de

hors the Constitution itself. It is not
necessary for this purpose to invoke any
divine or super-natural right but this
judicial power is inherent in the Court
itself. It flows from the fact that it is a
Constitutional Court and it can only be
taken away by abolishing the Court
itself.

In saying this, however, I should make it

1119
clear that I am making a distinction
between "judicial power" and
"jurisdiction". In a system where there is
a trichotomy of sovereign powers, then
ex-necessitate rei from the very nature
of things the judicial power must be
vested in the judiciary. But what is this
judicial power. "Judicial Power" has
been defined in the Corpus Juris
Secundum, Vol. XVI, Paragraph 144, as
follows:-

"The judiciary or judicial department is

an independent and equal coordinate
branch of Government, and is that
branch thereof which is intended to
interpret, construe, and apply the law, or
1120
that department of Government which
is charged with the declaration of what
the law is, and its construction, so far as
it is written law. " (Emphasis added)

This power, it is said, is inherent in the

judiciary by reason of the system of
division of powers itself under which, as
Chief Justice Marshal put it, "the
Legislature makes, the executive
executes, and the judiciary construes,
the law." Thus, the determination of
what the existing law is in relation to
something already done or happened is
the function, of the judiciary while the
predetermination of what the law shall
be for the regulation of all future cases
1121
,falling under its provisions is the
function of the Legislature.

It may well be asked at this stage as to

what is meant by "jurisdiction"? How
does it differ from "judicial power"?
Apart from setting up the organs the
Constitution may well provide for a
great many other things, such as, the
subjects in respect of which that power
may be exercised and the manner of the
exercise of that power. Thus it may
provide that the Courts set up will
exercise revisional or appellate powers
or only act as a Court of a cessation or
only decide Constitutional issues. It may
demarcate the territories in which a
1122
particular Court shall function and over
which its Writs shall run. It may specify
the persons in respect of whom the
judicial power to hear and determine
will be exercisable. These are all matters
which are commonly comprised in what
is called the jurisdiction of the Court. It
expresses the concept of the particular
res or subject matter over which the
judicial power is to be exercised and the
manner of its exercise. Jurisdiction is,
therefore, a right to adjudicate
concerning a particular subject-matter in
a given case, as also the authority to
exercise in a particular manner the
judicial power vested in the Court. "

1123
In this very report the Hon'ble Chief Justice
at page 70 was pleased to hold as under:--

"In exercising this power, the judiciary

claims no supremacy over other organs
of the Government but acts only as the
administrator of the public will. Even
when it declares a legislative measure
unconstitutional and void, it does not do
so, because, the judicial power is
superior in degree or dignity to the
legislative power; but because the
Constitution has vested it with the
power to declare what the law is in the
cases which come before it. It thus
merely enforces the Constitution as a
paramount law whenever a legislative
1124
 enactment comes into conflict with it
because, it is its duty to see that the
Constitution prevails."

65. The Supreme Court of Pakistan in its

Appellate Jurisdiction, in the case of Dr.
Munawar Hussain v. Dr. Muhammad Khan,
District Health Officer, Sargodha and two
others, reported as 2004 SCMR 1462 (at
page 1466) and PLJ 2005 SC 64 (at pages 67,
68) while dilating upon the question of
jurisdiction of the Federal Shariat Court
held as under:

"Article 203-A of the Constitution

provides that the provisions of this
1125
Chapter i.e. Chapter 3-A relating to
Federal Shariat Court shall have effect
notwithstanding any thing contained in
the Constitution meaning thereby that
provisions of this Chapter containing
Article 203-A to Article 203-J have
overriding effect on the other provisions
of the Constitution. Article 203-G of the
Constitution imposes bar on the
jurisdiction of the Courts and Tribunal
including the Supreme Court and the
High Court to entertain any proceedings
or exercise any power or jurisdiction in
respect of the matters within the power
or jurisdiction of the Federal Shariat
Court, as such, the High Court neither
had the jurisdiction under Section 561-

1126
A, Cr.P.C. nor under Article 199 of the
Constitution in the matter which fell
within the jurisdiction of the Federal
Shariat Court, as such, the jurisdiction
exercised by the High Court under
Article 199 of the Constitution after
conversion of quashment petition, was
coram non judice. It may be noted that
the Federal Shariat Court had already
directed the trial Court vide its judgment
dated 11-5-1994 passed in Criminal
Revision No.110-L of 1993 to issue
process against Dr. Muhammad Khan
respondent and to decide his case along
with other respondents in accordance
with law. This judgment which was
rendered by the three Hon'ble Judges of

1127
the Federal Shariat Court was binding on
the High Court and all other Courts
subordinate to it under Article 203-GG
and a Single Judge in Chambers of the
High Court had no jurisdiction to sit in
judgment over the judgment of the
Federal Shariat Court which had
exclusive jurisdiction in the matter and
its decision had a binding effect as
stated earlier. Since the matter was
exclusively amenable to the jurisdiction
of the Federal Shariat Court under
Article 203-G, therefore, the impugned
judgment passed by the Single Judge of
the High Court was without lawful
authority and of no legal consequence.
Consequently, this appeal is allowed, the

1128
 impugned judgment of the learned
Single Judge in Chambers of the High
Court being coram non judice is set
aside and the trial Court is directed to
proceed with the complaint as directed
by the Federal Shariat Court vide its
order dated 11-5-1994 and decide the
same in accordance with law as
expeditiously as possible."

66. In this context perusal of Article 203G

would be useful:

"Save as provided in Article 203F, no

Court or tribunal, including the Supreme
Court and a High Court, shall entertain
1129
 any proceedings or exercise any power
or jurisdiction in respect of any matter
within the power or jurisdiction of the
Court." (Emphasis added)

This provision read with Article 203-DD(2)

establishes beyond doubt that all offences
relating to Hudood are within the exclusive
jurisdiction of Federal Shariat Court. All
matters connected with Hudood would
therefore automatically be included in the
jurisdiction of Federal Shariat Court. This is
precisely what is meant by enforcement of
Hudood as prescribed in Article 203-DD of
the Constitution.

1130
67. It is indeed true that all judicial powers
are lodged with the judiciary and wide
powers have undoubtedly been conferred
by the Constitution upon the Federal
Shariat Court which include:-

(a) To administer punitive and remedial

justice to and between parties subject
to Constitution and law;

(b) To exercise exclusive jurisdiction in

matters relating to examination of laws
on the touchstone of Injunctions of
Islam and in cases relating to Hudood
laws;

1131
(c) To exercise the special jurisdiction
without further legislative sanction;

(d) To define the scope and extent of its

jurisdiction within the parameters
identified in Chapter 3-A of Part VII of
the Constitution;

(e) To determine the meaning and'

scope of the undefined terms used in
Chapter 3-A ibid;

(f) To exercise powers of a Civil Court in

respect of certain matters;
1132
(g) Authority to conduct its proceedings
and regulate its procedure in all
respects as it deems fit;

(h) To punish its own contempt;

(i)To make rules for carrying out the

purposes of Chapter 3-A ibid;

(j) Exercising such other jurisdiction as

may be conferred on it by or under any
law;

1133
 (k) To call for and examine the record of
any case decided by any criminal court
under any law relating to the
enforcement of Hudood; and

(l)Exclusive authority and the jurisdiction

to examine and decide the question
whether or not any law or provision of
law is repugnant to the Injunctions of
Islam as laid down in Holy Quran and
Sunnah.

68. On the question of jurisdiction, the

Supreme Court of Pakistan in the case of
Asma Jilani v. Government of the Punjab,
reported as PLD 1972 Supreme Court 139 at
1134
page 197, held as under:--

"The Courts undoubtedly have the

power to hear and determine any
matter or controversy which is brought
before them, even if it be to decide
whether they have the jurisdiction to
determine such a matter or not. The
Superior Courts are, as is now well
settled, the Judges of their own
jurisdiction. This is a right which has
consistently been claimed by Supreme
Court and other Courts of superior
jurisdiction in all civilized countries."

It may be useful to refer also to the case of

1135
Yousaf Ali Khan v. The West Pakistan Bar
Council Tribunal, Lahore PLD 1972 Lahore
404, a Full Bench case of the Lahore High
Court, wherein it was held as under:-

"It is not possible for the executive to

wrest from the judiciary its jurisdiction
to interpret any law promulgated in the
country. The superior judiciary is clothed
with this jurisdiction as a delegate of the
sovereign who, in the Islamic Republic of
Pakistan, is God Almighty Himself
exercising His Will and Sovereignty
through the people of this country. It is
hardly possible to deny that the making
of laws, their implementation by three
independent delegates of the sovereign
1136
 in respect of its own particular field. The
Legislature exercises that delegated
sovereign power of the sovereign to
make laws and the executive exercises it
to implement them, the judiciary does,
by interpreting laws made in pursuance
of the exercise of the legislative part of
the powers of the sovereign by the
Legislature. The right of the superior
judiciary delegated to it by the sovereign
which can neither be curbed nor can it
be taken away."

69. It is necessary for a Judge to know the

meaning and the scope of the term law
because he is under oath to administer law.
He should be clear in his mind that the law
1137
under consideration was made by an
authority legally competent to make laws.
The Federal Shariat Court has the additional
but onerous constitutional responsibility to
examine whether the impugned law or
provision of law is in accordance with
Injunctions of Islam. This authority of the
Federal Shariat Court is necessary extension
of the mandate given in Article 227. of the
Constitution. The notion of legitimacy and
efficacy therefore becomes relevant
because not only the law making authority
should be legally competent but the law
should be capable of being enforced
according to the Injunctions of Islam and
the principles established by the
Constitution.

1138
70. The ouster of jurisdiction of Federal
Shariat Court can be accomplished by only
one jurisdictional fact: that the act
complained of is not covered by the
mischief of an offence covered by the term
Hudood. If however the impugned
transgression falls in the arnbit of Hudood
then the jurisdiction of Federal Shariat
Court cannot be ousted. This element is the
key to the question of jurisdiction. It is
immaterial whether the offence complained
of is mentioned in the four Hudood laws of
1979 or any other law. The issue stands
settled by the terminology employed in
Article 203-DD - any case; any criminal court
and under any law. The term any case is
1139
relatable to all such offences which might
be covered in the definition of Hudood. All
actions which are ancillary or auxiliary or
related to or germane to or connected with
offences falling in the ambit of Hudood are
also included in the term any case related
with Hudood. Any case also includes all
those cases in which one of the alleged
offences is covered by the definition of the
term Hudood. It may he mentioned here
that the principle identified by the Supreme
Court of Pakistan in the case of State v.
Khalid Masood, PLD 1996 Supreme Court 42
is that when a matter has been dealt with
by the Constitution and it is not subject to
any statute then no statute can control or
curtail the power conferred upon a superior

1140
court by the Constitution.

B. NATURE OF ARTICLE 203-DD

71. Allied with the question of jurisdiction

of Federal Shariat Court is the subject
regarding determination of the exact scope,
and nature of Article 203-DD incorporated
in the Constitution. The language employed
in this Article shows that a calculated step
was taken to give legislative effect to the
principles and commandments relating to
Hudood enumerated in Holy Quran and
Sunnah. While interpreting Article 203-DD
of the Constitution of Islamic Republic of
Pakistan it becomes imperative to ascertain
1141
the nature of this constitutional provision.
Does this Article contain a policy? Does it
provide only a guideline? Does it contain a
principle of law? The answer goes beyond
these questions. An examination of this
Article demonstrates that it confers power
upon the Federal Shariat Court to exercise
jurisdiction in all cases, pending or decided
by any criminal court under any law in
relation to the enforcement of Hudood. The
Hudood laws were in existence and being
implemented at the time Article 203-DD
was made operational in the Constitution
with effect from 22nd March 1982. The
analysis of the contents of this Article
therefore leads to the irresistible conclusion
that the nature of this Article is self-

1142
executing. Justice Shafiur Rehman in the
case of Hakim Khan v. Government of
Pakistan, reported as PLD 1992 Supreme
Court 595, at pages 633-634 (para 16 of the
Report), while approving a passage from
Bindra's Interpretation of statutes,
observed as under:--

"A Constitutional provision is self-

executing if it supplies a sufficient rule
by means of which the right which it
grants may be enjoyed and protected, or
the duty which it imposes may be
enforced without the aid of a legislative
enactment. It is within the power of
those who adopt a Constitution to make
some of its provisions self-executing,
1143
with the object of putting it beyond the
power of the Legislature to render such
provisions nugatory by refusing to pass
laws to carry them into effect. Where
the matter with which a given section of
the Constitution deals is divisible, one
clause thereof may be self-executing
and another clause or clauses may not
be self-executing. Constitutional
provisions are self-executing when there
is a manifest intention that they should
go into immediate effect, and no
ancillary legislation is necessary to the
enjoyment of a right given of the
enforcement of a duty imposed. That a
right granted by a Constitutional
provision may be better or further

1144
protected by supplementary legislation
does not of itself prevent the provision
by question from being self-executing,
nor does the self-executing character of
the Constitutional provision necessarily
preclude legislation for the protection of
the right secured. A Constitutional
provision which is merely declaratory of
the common law is self-executing. A
Constitutional provision designed to
remove an existing mischief should
never be construed as dependent for its
efficacy and operation on Legislature.

Constitutional provisions are not self-

executing if they merely indicate a line
of policy or principles, without applying
1145
the means by which such policy of
principles are to be carried into effect,
or it appears from the language used
and the circumstances of its adoption
that subsequent legislation was
contemplated to carry it into effect.
Provisions of this character are
numerous in all Constitutions and treat
of a variety of subject. They remain
inoperative until rendered effective by
supplemental legislation. The failure of
the legislation to make suitable
provision for rendering a clause effective
is no argument in favour of self-
executing construction of the clause.
Self-enforcing provisions are
exceptional.

1146
 The question whether a Constitutional
provision is self-executing is always one
of intention, and to determine intent,
the general rule is that Courts will
consider the language used, the objects
to be accomplished by the provision,
and surrounding circumstances. Extrinsic
matters may be resorted to where the
language of the Constitution itself is
ambiguous."

72. A scrutiny of Article 203-DD of the

Constitution consequently illustrates that
exclusive powers of judicial nature in
relation to matters pertaining to Hudood, a

1147
particular branch of administration of
Criminal Justice, have been conferred upon
the Federal Shariat Court to:

(i) call for and examine the record of

(ii) any case

(iii) decided by any criminal court

(iv) under any law

(v) relating to enforcement of Hudood.

1148
The Hudood laws were made part of the
Statute Book of Pakistan on 9th February
1979 Chapter 3A entitled Federal Shariat
Court was incorporated thereafter as
substantive provision in Part VII of the
Constitution of Pakistan with effect from
26th May 1980 vide Constitution
(Amendment) Order, 1980. The opening
provision of this Chapter i.e. Article 203A
reads as follows:-

"The provisions of this Chapter shall

have effect notwithstanding anything
contained in the Constitution."

1149
73. It is this Chapter which contains Article
203DD. The present text of Article 203-DD
substituted the original Article 203-DD vice
section 5 of Constitution (Second
Amendment) Order, 1982 with effect from
22nd March 1982. The previous text of
Article 203-DD was incorporated in the
Constitution vide section 4 of the
President's Order No.4 of 1980,
Constitution (Second Amendment) Order,
1980 with effect from 21st June, 1980
which provided simply that:

"The Court shall have such other

jurisdiction as may be conferred on it by
or under any law."

1150
This very portion has now become clause
(3) of Article 203-DD by virtue of President's
Order No.5 of 1982. It is therefore amply
clear that the four Hudood laws i.e,
Ordinance No.VI of 1979, Ordinance No.V1I
of 1979, Ordinance No.VIII of 1979 and
President's Order No.4 of 1979 had come in
force before Article 203-DD was
reconstituted in an elaborate manner. In
the domain of legislation it is presumed that
the legislature is fully cognizant of previous
legislation on the given subject. The effect
of this amendment i.e, incorporation of
clauses (1) and (2) in Article 203-DD in the
Constitution is as follows:-

1151
(i) All the offences mentioned in the
above mentioned laws fall within the
ambit of Hadood;

(ii) As such all the offences are within

the jurisdiction of Federal Shariat Court;

(iii) These offences are no more

susceptible to amendment or repeal
through an ordinary or routine legislative
measure other than amendment of
Article 203-DD of the Constitution;

(iv) The Constitution did not limit the

scope of Article 203-DD to the offences
1152
covered by the said four Hudood laws
alone but mandated that the Court shall
have, such other jurisdiction as may be
conferred on it by or under any law. It
was a clear indication that the meaning
and scope of the term Hudood is wider
than what the four above mentioned
Hudood laws have professed. This clause
pre-supposes that in due course of time
when the scope of the term Hudood has
been defined appropriately, the
jurisdiction of the Federal Shariat Court
will keep on expanding.

(v) The Constitution purposely refrained

from defining the term "enforcement of
Hudood" and left it for the Federal
1153
Shariat Court to spell out the scope of
term Hudood for a safe and progressive
evolution of law in the light of Injunctions
of Islam, and

(vi) It was after lapse of a period of five

years that it was ultimately decided to
incorporate the term Hudood for the first
time in the Constitution so that a
complete range of offences falling within
the purview of Hudood would
progressively become part and parcel of
the penal law of Pakistan. It is in this way
that gradual fulfillment of Islamic tenets
becomes possible.

1154
74. During the three decades of its
existence, a lot many Articles of the
Constitution were amended on as many as
10 occasions and very recently far reaching
amendments have been effected through
Eighteenth Constitutional Amendment Act
which have been made operative from 20-
4-2010. However during this long period,
the successive Parliaments did neither
disturb the powers conferred upon Federal
Shariat Court under Article 203DD nor limit
the scope of the term Hudood to the four
Hudood laws with the result that this self-
executing provision, which had become
operational in 1982, continues holding the
field. It was and continues to be operational
and shall remain operational so long as any

1155
criminal court under any law takes
cognizance of a matter in the domain of
Hudood. The operational character of this
Article was never made dependent upon
any subsequent legislation or existence of
any other condition. The nature of this
Article is not at all different from the nature
of Articles 184 through 190 as well as
Articles 199, 201 and 203 of the
Constitution. These are all self contained
and self executing provisions of the
Constitution. It may be added that the
exclusive jurisdiction of the Federal Shariat
Court has remained intact throughout.

75. It is, therefore, clear that the words

used in any legal instrument relating to the
1156
jurisdiction of the Court, if not defined in
the enactment, will be interpreted and
construed by the court exercising that
jurisdiction. The term law for the purposes
of Article 203-D has been defined in clause
(c) of Article 203B of the Constitution in the
following terms:-

(c) "law" includes any custom or usage

having the force of law but does not
include the Constitution, Muslim
personal law, any law relating to the
procedure of any court or tribunal or,
until the expiration of [ten] years from
the commencement of this Chapter, any
fiscal law or any law relating to the levy
and collection of taxes and fees or
1157
 banking or insurance practice and
procedure.

The scope of the term law will have to be

determined by the Court.

76. It is noteworthy that the term Law

includes the judge made law. In support of
this argument it might as well be stated that
Article 189 mandates that the decisions of
the Supreme Court shall, to the extent that
it decides a question of law or is based upon
or enunciates a principle of law, be binding
on all Courts in Pakistan. Article 203-GG of
the Constitution straight away directs that
the decisions of Federal Shariat Court shall
1158
be binding on a High Court and all Courts
subordinate to a High Court. The
Constitution does not say that the decision
of the Federal Shariat Court shall be binding
only if "it decides a question of law or is
based upon or enunciates a principle of
law." In the case of Kundan Bibi and 4
others v. Walayat Hussain, Controller of
Estate Duty, Government of Pakistan,
Karachi and another, reported as PLD 1971
Lahore 360 (D.B. case at page 365), Justice
Sardar Muhammad Iqbal (as his lordship
then was) held that "law" does not mean
only the statute law but includes the
principles which are laid down by the
judicial pronouncements of Superior Courts.
Reliance in that report was placed on the

1159
case of Government of West Pakistan, v.
Begum Agha Abdul Karim Shorish Kashmiri
PLD 1969 SC 14 where Justice Hamood-ur-
Rehman (as his Lordship then was) held that
the term law includes judicial
pronouncements laid down from time to
time by the superior courts. This
constitutional provision as well as the
Hudood laws promulgated in 1979 partake
of the nature of mandating absolute
enactments. These provisions are not
directory. An absolute enactment is defined
to be an instrument which must be obeyed
or fulfilled exactly. It is only in the case of a
directory enactment that it may be obeyed
substantially. These constitutional
provisions confer powers for the

1160
enforcement of Hudood. It would be useful
to refer to another related principle which
was settled long ago in re-Dudlay
Corporation (1882)8 QBD 86 (93,94) by
Brett, L.J. wherein it was held that where
legislature gives power to do anything, the
legislature "means also to give the public
body all rights without which the power
would be wholly unavailable."

C. REVISIONAL CUM APPELLATE

JURISDICTION

77. It was hinted at the bar that revisional

power and not appellate power was
conferred upon the Federal Shariat Court
1161
under Article 203DD of the Constitution
meaning thereby that the powers of the
Federal Shariat Court are limited. The
argument is erroneous. It would be useful
to refer to relevant provisions relating to
appeals and revisions as incorporated in the
Code of Criminal Procedure.

78. Chapter XXXI of Part VII of the Code of

Criminal Procedure deals with appeals.
Section 404 of the said Code mandates that
no appeal shall lie from any judgment or
order of criminal court except as provided
for by the Code or any other law for the
time being in force. Section 412 commands
that where an accused person has pleaded
guilty and has been convicted by a High
1162
Court, a Court of Session or Magistrate of
1st Class on such plea, there shall be no
appeal except to the extent or legality of
the sentence. Similarly sections 413 and
414 do not permit appeals from petty
cases/certain summary convictions. Section
417 deals with appeals in cases of acquittal.
Section 418 concedes that an appeal may
lie on a matter of fact as well as matter of
law. Section 423 deals with powers of
appellate Court in disposing of appeals and
section 426 deals with suspension of
sentence and release of appellants on bail
during pendency of appeal. Section 428
enables the appellate Court to take further
evidence itself or direct it to be recorded by
the lower court. Under section 431, every

1163
appeal under section 411-A (2) or section
417 shall finally abate on the death of the
accused and every other appeal under 'this
chapter (except an appeal from a sentence
of fine) shall finally abate on the death of
appellant.

79. It will be noticed that piecemeal power

was given to appellate courts under twenty
eight consecutive sections of Chapter XXXI
of Part VII of the Code of Criminal
Procedure. The power to enhance the
sentence was however not provided in the
chapter relating to appeals. Chapter XXXII of
Part VII of the Code of Criminal Procedure
deals with Revisional Jurisdiction. Section
439 singly enables the High Court to
1164
perform any of the powers conferred on a
court of appeal by virtue of sections 423,
426, 427 and 428. This section also enables
the revisional court to enhance the sentence
after providing an opportunity to the
accused of being heard. A comparison with
Article 203-DD of the Constitution shows
that the revisional jurisdiction conferred
upon Federal Shariat Court, at
constitutional plane, not only encompass at
one place the power that are exercised by
an appellate Court under different sections
of the Code but at the same time, in
exercise of the same jurisdiction, the
Federal Shariat Court in its capacity as the
revisional court, has the additional potential
of enhancing any sentence if, after

1165
examination of the record of any case
decided by any criminal court, it is
convinced that punishment awarded was
scanty. It is for this reason that Article 203-
DD of the Constitution of Islamic Republic of
Pakistan conferred revisional jurisdiction
alone on the Federal Shariat Court because
powers of a revisional Court are much wider
than that of the powers of an appellate
Court.

80. Section 439 of the Code of Criminal

Procedure, authorizes the High Court to
enhance the sentence of the convict in the
exercise of revisional jurisdiction. The
Constitution could have` been content by
providing that the Federal Shariat Court will
1166
exercise the same powers as conferred on
High Court under section 439 ibid. But it
was not done for the obvious reason that
section 439 ibid places an embargo on the
powers of High Court to convert an order of
acquittal into conviction while exercising
revisional jurisdiction. In the case of
Muhammad Babar v. Muhammad Akram
and three others, PLD 1987 Federal Shariat
Court 38 (at page 41) it was held that the
power of Federal Shariat Court to order
retrial remains intact under the
constitutional provisions because "the
Court may pass such orders as it deems fit."
However in appropriate cases, in order to
save time, expense, and harassment the
Federal Shariat Court may straight away

1167
convict the accused, if after hearing him, it
finds that there is sufficient evidence on
record to do so (Page 42 of the report).

81. The concept of Appeal is not unfamiliar

to the Constitution. Articles 185 and 203-F
of the Constitution confer appellate
jurisdiction upon the Supreme Court of
Pakistan. Article 203-DD of the Constitution
does not confer appellate jurisdiction
simplicitor upon the Federal Shariat Court.
It confers revisional and other jurisdiction.
Appeal is a right conferred upon a person by
a legislative instrument to move a superior
tribunal against an order whereas Revision
is a privilege, prerogative, discretion and
power conferred upon a Court to examine
1168
proceedings conducted by a lower tribunal.
Appeal is re-examination of case at judicial
level by a Superior Court. The object of
appeal in contradistinction to revision
under the Code of Criminal Procedure, is to
examine the correctness and legality of the
impugned order. The powers vesting in this
Court under Article 203-DD of the
Constitution with regard to any case
decided by any criminal court under any law
relating to the Enforcement of Hudood are
all in-collusive in nature. A statute may or
may not confer a right of appeal but the
Constitution has provided a permanent
remedy for every aggrieved person to
invoke revisional jurisdiction of this Court in
appropriate proceedings. Revision is a wider

1169
jurisdiction. This is what the head note of
Article 203-DD indicates. The term Revision
includes re-examination, re-assessment,
careful reading over for correction and
improvement. Holy Quran, in Ayah No.90
Surah 16, An-Nahl enjoins Justice tempered
with Kindness. The words in the Nass are
ADL and IHSAN. The Federal Shariat Court
has also to see whether justice, as
tempered by kindness, has been done by
the trial Court. This power of Adl with Ihsan
is not prescribed upon any Appellate Court
in the Code of Criminal Procedure. It is
therefore abundantly clear that wide
powers have been conferred upon the
Federal Shariat Court by way of revisional
jurisdiction to do complete justice

1170
according to relevant Injunctions of Islam in
cases decided by any criminal court under
any law relating to the enforcement of
Hudood.

82. It would be advantageous at this stage

to look up the meaning and scope of the
technical term Revision in legal parlance.

83. The term Revision is wider in meaning

and scope than the term Appeal. The term
Revision also includes revision of statutes
which in substance is the re-examination of
laws. It is different from an amendment. It
implies re-examination and restatement of
law. Reference volume 35-A of WORDS and
1171
PHRASES, Permanent Edition. The well
known book entitled: STATUTORY
CONSTRUCTION by Crawford published by
Pakistan Publishing House records at page
184: that the "Legislators are often
authorized by constitutional provisions to
revise and to restate all the statute law of a
general and permanent nature of the State
up to a certain date, in corrected and
improved form". This legislative function
has been conferred on the Federal Shariat
Court to undertake examination of laws on
the touchstone of the Injunctions of Islam.
This is precisely the jurisdiction of the
Federal Shariat Court under Article 203-D of
the Constitution. The Court at the same
time enjoys the jurisdiction under Article

1172
203-D ibid to examine any law on its own
motion. There could be cases when the
court is called upon to exercise its
jurisdiction under both the Articles in one
and the same case. This special type of
jurisdiction is enjoyed only by the Federal
Shariat Court in the judicial hierarchy of
Pakistan.

84. In this view of the matter I am of the

confirmed view that the absence of the
word "appeal" does not in any way limit the
widest possible jurisdiction of the Federal
Shariat Court conferred upon it by virtue of
Article 203-DD of the Constitution which
enables it to call for and examine the record
of any case decided by any criminal court
1173
under any law relating to the enforcement
of Hudood. In fact very wide powers have
been conferred upon this Court by virtue of
just one Article of the Constitution without
enumerating twenty eight sections in quick
succession as has been done in Chapter
XXXI of Part VII of the Code of Criminal
Procedure. The Federal Shariat Court
would, in view of this constitutional
provision, exercise widest possible
jurisdiction in cases decided by any criminal
court under any law relating to an offence
covered by the term Hudood. All the
recognized incidents of the term Appeal
have been included in the powers conferred
upon Federal Shariat Court by Article 203-
DD of the Constitution under the so called

1174
title Revision. The Constitution does not
concede such broad based revisional
powers to the High Courts. The revisional
jurisdiction of a High Court is certainly
dependent upon an enabling provision in
the Code of Criminal Procedure which can
be omitted, altered, substituted, or even
restricted by ordinary legislative measure.

85. The revisional jurisdiction conferred

upon Federal Shariat Court by Article 203-
DD of the Constitution is not a mere power
but is in essence a sacrosanct duty because
the said constitutional provision speaks in
terms of enforcement of Hudood.
Reference in this context may be made
profitably to the following seven Nusoos in
1175
quick succession i.e. Ayaat No.43 through
49 Surah 5, Al-Maidah which enunciate the
principle:-

Enforce the Injunctions of Quran and

judge people according to the mandated
provisions.

This principle has been mentioned seven

times in these Ayaat of Holy Quran. This
repetitive emphasis is a pointer towards the
significance attached to the implementation
of Injunctions of Islam. These verses were
addressed to the Holy Prophet (PBUH)
which means that it is the duty of a Muslim
State to enforce these principle/injunctions.
1176
Translation of the said seven Ayaat is as
follows:-

"Yet how will they appoint you a judge

when they have the Torah with them,
wherein there is Allah's judgment and
still they turn away from it? The fact is,
they are not believers."

"Surely We revealed the Torah, wherein

there is Guidance and Light. Thereby did
Prophets- who had submitted
themselves (to Allah) - judge for the
Judaized folk; and so did the scholars
and jurists. They judged by the Book of
Allah for they had been entrusted to
1177
keep it and bear witness to it. So, (0
Jews), do not feat' human beings but
fear Me, and do not barter away My
signs for a trivial gain. Those who do not
judge by what Allah has revealed are
indeed the unbelievers: "

"And therein We had ordained for them:

"A life for a life, and an eye for an eye,
and a nose for a nose, and an ear for an
ear, and a .tooth for a tooth, and for all
wounds, like for like. But whosoever
foregoes it by way of charity, it will be
for him an expiation." Those who do not
judge by what Allah has revealed are
indeed the wrong-doers."

1178
"And We sent Jesus, the son of Mary,
after those Prophets, confirming the
truth of whatever. there still remained
of the Torah. And We gave him the
Gospel wherein is Guidance and Light,
and which confirms the truth of
whatever there still remained of the
Torah, and a Guidance and Admonition
for the God-fearing."

"Let the followers of the Gospel judge by

what Allah has revealed therein, and
those who do not judge by what Allah
has revealed are the transgressors."

1179
"Then We revealed the Book to you, (0
Muhammad), with Truth, confirming
what-ever of the Book was revealed
before, and protecting and guarding
over it. Judge, then, in the affairs of men
in accordance with the Law that Allah
has revealed, and do not follow their
desires in disregard of the Truth which
has come to you. For each of you, We
have appointed a Law and a way of life.
And had Allah so willed, He would surely
have made you one single community;
instead, (He gave each of you a Law and
a way of life) in order to test you by
what He gave you. Vie, then, with one
another in good works. Unto Allah is the
return of all of you; and He will then

1180
make you understand the truth
concerning the matters on which you
disagreed."

"Therefore, judge between them, (O

Muhammad), by what Allah has
revealed and do not follow their desires,
and do not follow their desires, and
beware lest they tempt you away from
anything of what Allah has revealed to
you. And if they turn away, then know
well that Allah has indeed decided to
afflict them for some of their sins. For
surely many of them are transgressors.
"(Emphasis added)

1181
It is for the purposes of correcting
miscarriage of justice, doing substantial
justice, removing any illegality or perversity
that the Federal Shariat Court has been
clothed with vast powers under the title of
Revisional Jurisdiction. One of the
fundamental object of this jurisdiction is
that the Federal Shariat Court would watch
carefully that no Injunction of Islam relating
to the enforcement of Hudood is violated in
any case by 'virtue of any order or decision
by any criminal court exercising power
under any law.

86. Existence of law is not sufficient. It is

just one aspect of administration of justice.
The emphasis of Holy Quran is in fact upon
1182
enforcing the law. Constitution, in
particular, has laid emphasis on
enforcement of Hudood. Chapter 3A of Part
VII is the solitary instance where the
Constitution speaks in terms of
enforcement. This element of enforcement
only in relation to Hudood, according to the
Constitution, is the exclusive domain of
Federal Shariat Court through revisional
jurisdiction.

87. Jurisdiction is the power to hear and

determine the cases as well as power to
entertain an action or petition or any other
proceedings. The term jurisdiction,
therefore, connotes authority and power to
act in a given matter. The jurisdiction of the
1183
Federal Shariat Court under Article 203-DD
not only refers to the power to examine the
record of any case pending in a criminal
court but also enables it to examine the
propriety of any decision or order passed by
any criminal court under any law relating to
Enforcement of Hudood. The word any
means all, each and every case pending or
decided and each law under which the
criminal Court takes cognizance of a matter.
The term any case used in Article 203DD is
therefore very wide and includes any
matter which is within the initial cognizance
of the criminal trial Court. Any case
therefore means any matter under any law
connected with the Enforcement of
Hudood.

1184
88. Even otherwise, as stated earlier, the
appellate power over orders passed by
Court of Session in matters relating to
Hudood, once conferred upon this Court
under Ordinance VII of 1979 could not be
disturbed through Act VI of 2006 by
transferring Hudood Offences to Pakistan
Penal Code. This is an inroad by subordinate
legislation in the realm of constitutional
provisions contained in Article 203-A, sub-
Articles (1) and (3) of Article 203-DD and
Article 203-G and consequently of no legal
effect.

D. TERMS: ANY CASE, ANY COURT AND

1185
 ANY LAW

89. The word any has been used four times

in Article 203-DD of the Constitution. In
clause (1) the words are: "of any case," "any
criminal court" and "under any law" while in
clause (2) the words used are: "in any case".
This calls for determination of meaning of
the word any. Mr. Justice Zaffar Hussain
Mirza, in the case of Inamur Rehman v.
Federation of Pakistan reported as 1992
SCMR 563 at 587, with regard to the
meaning of the term ANY observed as
follows:-

"These expressions are of very wide

1186
 amplitude. The term "any" according to
the Black's Law Dictionary (Fifth Edition)
page 86 means: one out of many; an
indefinite number; one indiscriminately
of whatever kind or quantity. With
reference to case law it has been stated:
Word "any" has a diversity of meaning
and may be employed to indicate "all"
or "every" as well as "some" or "one"
and its meaning in a given statute
depends upon the context and the
subject-matter of the statute."

The word "any" as employed in Article 203-

DD has been expressed without any
qualification. The word any in the context in
Article 203-DD would mean: any person,
1187
any court or any law under which a trial or
proceedings as regards offences relating to
Hudood are being held or have been
concluded. The word any is wide enough to
include every case, covered by the term
Hudood or related to Hudood and would
also cover situations when any case is
sought to be transferred in the manner and
circumstances visualized by sections 526
and 528 of the Code of Criminal Procedure.
The three terms i.e. "any law", "any criminal
court" and "any law" as used in Article 203-
DD not only tend to enlarge the amplitude
of the term Hudood but lay emphasis on
the fact that all type of proceedings related
to offences covered by the meaning and
scope of the term Hudood would remain

1188
the exclusive preserve of the Federal
Shariat Court. There is no earthly reason to
exclude any one matter connected with the
proceedings under Hudood laws from the
jurisdiction of this Court. The term "any" in
its meaning and scope, has been discussed
inter-alia in the following four precedents
which may be consulted to appreciate that
the word "any" as used in Article 203-DD is
a word of "expansion indicative of width
and amplitude sufficient to bring within the
scope and ambit of the words it governed,
all that could possible be included in them."

(i) Ch. Zahoor Elahi MNA v. The State

PLD 1977 SC 273

1189
 (ii) M. Amjad v. Commission of Income
Tax and 2 others 1992 PTD 513

(iii) N.-W.F.P. v. Muhammad Irshad PLD

1995 SC 281

(iv) Commissioner of Income Tax v.

Media Network PLD 2006 Supreme
Court 787

In conclusion it may be said that term

criminal court used in Article 203-DD is not
restrictive in the sense as mentioned in
section 6 of the Code of Criminal Procedure.
1190
It means any court exercising criminal
jurisdiction under any law of the land
relating to an offence in the domain of
Hudood. The term criminal court extends to
every category of Courts, Tribunals or
Authorities competent under any law of the
land to try and decide cases in which the
offence complained of pertains to Hudood.

E. TERM: ENFORCEMENT OFHUDOOD

90. Article 203-DD of the Constitution of the

Islamic Republic of Pakistan confers
revisional and other jurisdiction on the
Federal Shariat Court. Following is the text
of Article 203-DD.
1191
"[203-DD. (1) The Court may call for and
examine the record of any case decided
by any criminal court under any law
relating to the enforcement of Hudood
for the purpose of satisfying itself as to
the correctness, legality or propriety of
any finding, sentence or order recorded
or passed by, and as to the regularity of
any proceedings of, such court and may,
when calling for such record, direct that
the execution of any sentence be
suspended and, if the accused is in
confinement, that he be released on bail
or on his own bond pending the
examination of the record.

1192
(2) In any case the record of which has
been called for by the Court, the Court
may pass such order as it may deem fit
and may enhance the sentence:

Provided that nothing in this Article shall

be deemed to authorize the Court to
convert a finding of acquittal into one of
conviction and no order under this
Article shall be made to the prejudice of
the accused unless he has had an
opportunity of being heard in his own
defence.

(3) The Court shall have such other

jurisdiction as may be conferred on it by
1193
 or under any law.]"

Before we discuss the philosophy and

purport of this Article, let us summarize the
extent and scope of the powers bestowed
upon the Federal Shariat Court by this
Article. The following issues appear to have
been contemplated:

(i) The jurisdiction of the Court in respect

of enforcement of Hudood;

(ii) The responsibility of the Court to

satisfy itself as to the correctness,
legality and propriety of any finding,
1194
 sentence or order recorded or passed
by any court;

(iii) The power of the Court to decide the

regularity or otherwise of any
proceedings related to enforcement of
Hudood;

(iv) The power of the Court to direct

suspension of any sentence awarded
in cases relating to Hudood;

(v) Power of the Court to release any

accused on bail;

1195
 (vi) Power of the Court to pass any order it
may deem fit in relation to any
proceeding related to the enforcement
of Hudood;

(vii) Power of the Court to enhance any

sentence passed by any court in
relation to Hudood; and

(viii) Any other jurisdiction conferred on

the Court by or under any law.

A cursory glance over the contents of

Article 203-DD clearly establishes that the
framers of Chapter 3A of Part VII of the
1196
Constitution perceived a much broader role
for the Federal Shariat Court in relation to
Hudood. It was an all-inclusive role which is
certainly wider than mere customary
appellate jurisdiction. Revisional power
granted to the High Courts under section
439 of the Code of Criminal Procedure can
be interfered with by routine legislative
measure through ordinary routine process
of amendment or even repeal. A bill, in
order to amend the Constitution, is passed
only if "votes not less than two-thirds of the
total membership of the House", from
where the Bill has originated and also "two-
thirds of the total membership of the House
to which it has been transmitted" have
been secured as provided in Article 248 of

1197
the Constitution. But this is not the case in
relation to other laws which may be
amended, repealed or enacted by simple
majority. The Constitution has made it
certain that the Revisional jurisdiction
conferred upon the Federal Shariat Court by
it is taken out of the scope of ordinary
legislative functions of Majlis-e-Shoora. The
Constitution conceded not only wide
powers to the Federal Shariat Court but it
proceeded to protect these powers from
the vicissitude of legislative procedure
prescribed under Article 70 of the
Constitution. Additionally the Constitution
proclaimed that Federal Shariat Court shall
have such other jurisdiction as may be
conferred upon it by or under any law. The

1198
consequence of this provision of the
Constitution is that the 'Government or the
Legislature has been restrained firstly from
omitting any item from the prescribed
jurisdiction of Federal Shariat Court in
matters relating to Hudood, and secondly
the additional power which may
subsequently be included in the jurisdiction
of this Court under sub-Article (3) of Article
203-DD will be of the nature that it cannot
be taken away by routine legislative
measure. The additional jurisdiction,
whenever conferred would be saved by
constitutional provision. The Constitution
commands in unambiguous terms that
Federal Shariat Court shall, to the exclusion
of any other court in Pakistan, have

1199
exclusive jurisdiction to control, supervise
and streamline the process of the
enforcement of Hudood under any law by
any court or judicial forum. In Article 203-
DD the term used is "enforcement of
Hudood" and not mere Hudood. The word
enforce, according to Oxford, Advanced
Learner's Dictionary means: to make sure
that people obey a particular law or rule, to
make something happen or force somebody
to do something. The word enforcement
consists of two parts. Part one is enforce
and part two is ment. The portion ment is a
suffix. According to Oxford Dictionary this
suffix means: the action or result of. In this
context the word enforcement means the
action of making sure that people obey the

1200
Islamic law relating to Hudood or the result
of making sure that people obey the law.
The intent of the authors of this
constitutional provision is clear. It confers
wider powers and jurisdiction on the
Federal Shariat Court so that not only the
enforcement or implementation of Hudood
law is ensured but judicial guarantee is
provided to ensure correctness, legality and
propriety as well as regularity of
proceedings in relation to the enforcement
of Hudood as prescribed by Injunctions of
Islam in the administration of criminal
justice with a view to protecting Din, Life,
Intellect, Progeny and Family as well as the
legitimately acquired property of the
citizens and the people of Pakistan. The

1201
positive law must be aimed at protecting
and advancing the objectives of Shariah so
as to achieve a correct and proper
enforcement of Hudood. Laws have to be
implemented in that spirit. The Constitution
authorizes the Federal Shariat Court to
interfere and exercise its jurisdiction in any
case from any criminal court under any law
with a view to ensuring the correctness,
legality and propriety of such
implementation. The word enforcement has
been used by the constitution only in
relation to offences relating to or covered
by the term Hudood. This is clearly wider
expression and includes all those steps
which may technically be termed as
appellate jurisdiction.

1202
91. Whatever has been stated above
demonstrates very clearly that the intent
and purport of Article 203-DD is to provide
a single and a central judicial forum which
should have exclusive jurisdiction of
ensuring correct, legal, proper and regular
enforcement of the laws of Hudood
throughout Pakistan. The word "revisional"
appearing in the head note of Article 203DD
has not been used in narrow and limited
sense but it has been used in a broader
sense. The right of appeal is conceded to an
aggrieved party whereas Revision is
conferring of power, privilege and
discretion upon the Court to undertake
examination of proceeding of a lower
1203
tribunal on the application of an aggrieved
person or on its motion. If this Article is
read with Articles 203-G and 203-GG, it
establishes beyond any shadow of doubt
that revisionary power includes the
appellate powers in relation to Hudood
laws and the enforcement of Hudood vest
in the Federal Shariat Court to the exclusion
of any other court in Pakistan. The words
"any power or jurisdiction in respect of any
matter within the power and jurisdiction of
the Court" in Article 203-G makes it
abundantly clear that no court will exercise
appellate or revisional jurisdiction in
matters relating to enforcement of Hudood
except the Federal Shariat Court. The power
of a High Court to reverse an order of

1204
acquittal into conviction, on appeal, is
stipulated only under section 417 of the
Code of Criminal Procedure but this power
which a High Court enjoys under a
legislative instrument is conferred upon the
Federal Shariat Court specifically through a
superior piece of legislation i.e. the
Constitution. The Constitution authorizes
the Court to convert an order of acquittal
into conviction. The Constitution therefore
preserves and consolidates all the legally
conceivable powers and jurisdiction in
Federal Shariat Court in all matters relating
to the enforcement of Hudood which any
other court may enjoy collectively as an
appellate and revisional court under
ordinary law.

1205
92. Be it the Psalms of David, Gospel of
Jesus, Tablets of Moses or the Scripture
revealed upon Muhammad PBUH, Allah
Almighty made His promise abundantly
clear that the weak and the oppressed, the
meek and the browbeaten shall inherit this
earth. Allah was Gracious to those who
were oppressed in the land and in His
infinite mercy, He made them leaders of
humanity and helped them succeed to the
resources of this world. The Righteous
servants of God, in turn, uphold the guiding
principles and permanent values ordained
and preserved in the Revelation and come
forward to implement the regulations
proposed by the Lord Creator. They do not
1206
hesitate to implement and enforce the
Injunctions prescribed by Allah. Reference
in this context may be made to Ayaat Nos.
133 and 165 of Surah No.6, Ayaat Nos. 100,
130 and 134 of Surah No. 7, Ayah No. 14 of
Surah No.10, Ayah No. 57 of Surah No.11,
Ayaat Nos. 11 and 105 of Surah 21, Ayah
No.55 of Surah 24, Ayah No.62 of Surah 27,
Ayah No.5 of Surah 28, Ayah No.39 of Surah
35, Ayah No. 26 of Surah 38, Ayah No.38 of
Surah 47, Ayah No.7 of Surah 57, Ayah
No.41 of Surah 70.

F. FOUNDATION AND SCOPE OF ARTICLE

203-D

1207
93. The basis of Article 203-D can be traced
to Ayaat 59 through 65 of Surah 4, An-Nisa.
The meaning of these Ayaat is as follows:

"O ye who believe!

Obey Allah, and obey the Apostle,
And those charged
With authority among you.
If ye differ in anything
Among yourselves, refer it
To Allah and His Apostle,
If ye do believe in Allah
And the Last Day:

1208
That is best, and most suitable
For final determination."

"Hast thou not turned

Thy vision to those
Who declare that they believe
In the revelations
That have come to thee
And to those before thee?
Their (real) wish is
To resort together for judgment
(In their disputes)
To the Evil one,
1209
Though they were ordered
To reject him.
But Satan's wish
Is to lead them astray
Far away (from the Right)."

When it is said to them:

"Come to what Allah hath revealed.
And to the Apostle ":
Thou seest the Hypocrites avert
Their faces from thee in disgust.

How, then, when they are

1210
Seized by misfortune,
Because of the deeds
Which their hands have sent forth?

Then they come to thee,

Swearing by Allah:
"We meant no more
Than good-will and conciliation!

"Those men,- Allah knows

What is in their hearts;
So keep clear of them,
But admonish them,
1211
And speak to them a word
To reach their very souls."

"We sent not an Apostle,

But to be obeyed, in accordance
With the Will of Allah.
If they had only,
When they were unjust
To themselves,
Come unto thee
And asked Allah's forgiveness,
And the Apostle had asked
Forgiveness for them,
1212
They would have found
Allah indeed Oft-Returning,
Most Merciful."

"But no, by they Lord,

They can have
No (real) Faith,
Until they make thee judge
In all disputes between them,
And find in their souls
No resistance against
Thy decisions, but accept
Them with the fullest conviction."
1213
A perusal of these Ayaat shows that the
following two standards have been
identified by Holy Quran for the resolution
of disputes particularly between the
citizenry and the State:-

(i) The first point of reference is the Word of

God;

(ii) The second point of reference is the

Sunnah of the Holy Prophet PBUH;

Those who deny this procedure/process are

termed hypocrites by Holy Qur'an. The
1214
nutshell of Ayah 62 Surah 4, An-Nisa and
Ayaat 47 through 52 is that those who do
not observe what Allah or His Chosen
Messenger PBUH has ordained may fall in
the category of Munafiqeen i.e. the
hypocrites. This is the situation which a
believer would certainly avoid in all
circumstances.

94. The message of the above mentioned

seven Ayaat of Surah 4 is restated with full
vehemence in Ayaat 43 through 50 of Surah
5, Al-Maida whose translation has been
referred to in a section of this judgment.
The qutshell of the Divine verdict in these
Ayaat is that those who do not judge
between people in accordance with what
1215
has been revealed are Disbelievers, Wrong-
doers and Evil-livers. It is in this background
that Article 203-D and Article 227 of the
Constitution of Islamic Republic of Pakistan
has to be understood, appreciated,
construed, interpreted and implemented.

95. Ayah 49 of Surah 5 as well as Ayah 65 of

Surah 4 declare and direct in very vivid
terms:-

"So Judge between them by what Allah

has Revealed."

(AND)
1216
 "But nay, by the Lord, they will not
believe (in truth) until They make thee
(0 Muhammad) a Judge of what is in
dispute between them and find within
themselves no dislike of that which thou
(0 Muhammad) decided, and submit
with full submission."

96. Article 203D of the Constitution

provides a practical mechanism to:

(a) ensure implementation of the

mandate contained in Article 227 of the
Constitution that no law shall be

1217
 enacted which is repugnant to the
Injunctions of Islam contained in Holy
Quran or Sunnah;

(b) achieve the goal, visualized in clause

three of Objectives Resolution that the
Muslims shall be enabled to order their
lives in the individual and collective
spheres in accordance with the
teachings and requirements of Islam as
set out in the Holy Quran and Sunnah,
and

(c) provide machinery at national level

not through an ordinary piece of
legislation but through the agency of
1218
 the fundamental law of Pakistan by way
of creating a Superior Court with
exclusive jurisdiction to undertake
solemn exercise of adapting the Statute
Book of Pakistan with Injunctions of
Islam.

97. The reason that a constitutional

provision has empowered the Federal
Shariat Court to examine laws on the
touchstone of Injunctions of Islam can be
traced to Ayah 85 of Surah 28, Al-Qasas
which proclaims that Allah made the
teachings of Holy Quran binding upon the
believers. The other reason is furnished by
Ayah 23 Surah 3, Ale-Imran, Ayah 105
Surah 4, An-Nisa; Ayaat 44, 47 Surah 5, Al-
1219
Maidah; Ayah 114 Surah 6, Al-Anam. All
these verses proclaim that people should be
judged according to the teachings and
principles handed over by Revelation. Still
another reasons is that the Holy Quran
proclaims itself as FURQAN i.e.
Distinguisher. In other words Quran is the
litmus test. Human conduct in Muslim
societies should not be apposed to the spirit
and teachings of the Holy Book.

G. DECISIONS OF FEDERAL SHARIAT COURT

98. The criteria for resolving conflicts

among people at judicial level is best
illustrated by the instructions given by Holy
1220
Prophet PBUH to Maaz bin Jabel on the eve
of his appointment as Governor of Yamen.
Decisions were to be given in the light of
Injunctions contained in Holy Quran and if
no guidance was available in the primary
source, the judgment was to be based upon
the guiding principles provided by Sunnah
and in the absence of any precedent or
Injunction available in the above two basic
sources, then the judge was to undertake
Ijtehad i.e. application of mental faculties to
the maximum in resolving the issue without
violating the spirit of guiding principles
provided by two primary sources. This was
the first occasion when the term Ijtehad
was employed in the realm of
administration of justice by a Companion in

1221
the presence of Holy Prophet (PBUH) who
approved it whole heartedly. This was the
time and occasion when the exercise of
Ijtehad for the resolution of disputes
received formal sanction. From that point
onward Ijtehad played an important role in
the evolution of Islamic jurisprudence and
the administration of justice.

99. A careful reading of Article 203-GG as

well as Articles 189 and 201 of the
Constitution indicates that the Federal
Shariat Court is not bound even by its own
decisions. There is no institutionalized
taqlid in so far as this Court is concerned. It
is the continuation of the time honoured
practice in Muslim Societies that the judges
1222
were not bound by previous decision in
mattes 'within the ambit of uncovered field.
The reason was simple: In the given
circumstances of a situation when no legal
provision was available to resolve a
controversy, an effort to discover a remedy
was resorted to by undertaking Ijtehad in
the larger interest of Justice. Justice is
indeed related to the restoration of rights.
Resolution of human problems does not
brook a vacuum. A still better view is always
possible on account of practical experience
gained by all the stakeholders in the
administration of justice particularly on
account of change of conditions and
circumstances. Human thought is not
stagnant. Human mind is a dynamic faculty.

1223
It progresses and develops by experience.
The process of development and evolution
is ongoing. This course is not static.
Injunctions of Islam do not enjoin negation
of movement. Islamic teachings beckon a
person to look forward for a better future.

100. It may be useful to refer Ayah 46 Surah

34, Saba which gives primacy to the thought
process and the element of scrutiny,
examination, analysis and reflection. This is
precisely what the Holy Quran describes as:

Translation of Ayah 46 is as under:--

1224
 "Say to them, (0 Prophet): "I give you
but one counsel: stand up (for heaven's
sake), singly and in pairs, and then think:
what is it in your companion (to wit,
Muhammad) that could be deemed as
madness?" He is nothing but a warner,
warning you before the coming of a
grievous chastisement." (Emphasis
added)

101. The Superior Courts, particularly in

matters relating to Islamic jurisprudence,
are under an obligation to develop law in
the light of Injunctions of Islam as laid down
in Holy Quran and Sunnah. Exercise of
Ijtehad implies that the Courts are not
bound by one interpretation in the
1225
uncovered field for all times to come.
Wisdom and saner counsel is the common
heritage of humanity. The net result of
incorporating Article 203GG is that any
decision of the Federal Shariat Court in
exercise of its jurisdiction, is binding on a
High Court and on all Courts subordinate to
such High Court. The trial courts are
subordinate to provincial High Courts with
the result that the findings of Federal
Shariat Court, as regards its jurisdiction over
trials relating to enforcement of Hudood as
well as its interpretation and decisions shall
be binding on provincial High Courts and
the courts subordinate to the High Courts.s

102. Another aspect is worth considering.

1226
Let us first examine the language of Articles
189 and 201 and then read Article 203GG:-

"189. Any decision of the Supreme Court

shall, to the extent that it decides a
question of law or is based upon or
enunciates a principle of law, be binding
on all other courts in Pakistan.

"201. Subject to Article 189, any decision

of a High Court shall, to the extent that
it decides a question of law or is based
upon or enunciates a principle of law,
be binding on all Courts subordinate to
it.

1227
"203-GG. Subject to Articles 203-D and 203-
F, any decision of the Court in the exercise
of its jurisdiction under this Chapter shall
be binding on a High Court and on all courts
subordinate to a High Court."

103. The phrase "to the extent that it

decides a question of law or is based upon
or enunciates a principle of law"
mentioned in the first two articles is
conspicuous by omission in Article 203-GG.
It therefore means in very clear terms that
the ratio as well as dicta in a judgment of
the Federal Shariat Court is binding upon
the four provincial High Courts as well as

1228
all the courts throughout the country as
these courts are subordinate to one or the
other High Court. Any judgment, order or
decision delivered, passed or given by a
High Court or a court subordinate to a
High Court, contrary to the decision of
Federal Shariat Court will be a judgment
per incuriam. The Supreme Court of
Pakistan, in the case of Dr. Munawar
Hussain, referred to above, while dilating
upon the jurisdiction of the Federal Shariat
Court under Article 203-DD had held that
High Court had no jurisdiction under
section 561-A of the Code of Criminal
Procedure and Article 199 of the
Constitution in matters which fell within
the jurisdiction of Federal Shariat Court.

1229
Decision of the High Court in such matters
was declared as Coram non judice. This
jurisdiction of the Federal Shariat Court
therefore is exclusive in nature and is not
shared by any superior Court/Tribunal
created by the Constitution. Reference
may be made to the following reports:

(i) Zaheer ud Din versus. The State 1993

SCMR 1718 (at page 1756)

"The Chapter 3A of the Constitution

was inducted in the Constitution on
26th May, 1980. It contains Articles
203A to Article 203-J. The Article 203-A
of the Constitution lays down that the
1230
provisions of Chapter 3A shall have
effect notwithstanding anything
contained in the Constitution. Further
Article 203-G provides that "Save as
provided in Article 203F, no Court or
tribunal, including the Supreme Court
and a High Court, shall entertain any
proceedings or exercise any power or
jurisdiction in respect of any matter
within the power or jurisdiction of the
Court."

These provisions when read together,

would mean that a finding of the
Federal Shariat Court, if the same is
either not challenged in the Shariat
Appellate Bench of the Supreme Court
1231
 or challenged but maintained, would
be binding even on the Supreme Court.
Consequently, the above given findings
of the Federal Shariat Court cannot be
ignored by this Court."

(ii) Aurangzeb v. Massan 1993 CLC 1020

(at page 1023)

"Judgments of the Supreme Court, its

Shariat Appellate Bench and Federal
Shariat Court were binding on other
Courts, by force of a Constitutional
mandate. The act of a Court in
disregard of the judgments of the
above Courts was denuded of legal
1232
authority and was clearly equivalent to
an act without lawful authority and
jurisdiction."

(iii) Hafiz Abdul Waheed v. Mst. Asma

Jehangir PLD 2004 Supreme Court 219
(at page 230)

"The argument is fallacious. The

Federal Shariat Court is itself the
creation of Chapter 3-A. Article 203-D
confers, what may be described as
original jurisdiction on the Federal
Shariat Court. Under this jurisdiction,
the Federal Shariat Court, on its own
motion or on the petition of any citizen
1233
of Pakistan or Federal Government or a
Provincial Government, can examine
and decide the question whether or
not any law or provision of law is
repugnant to the Injunctions of Islam
as laid down in the Holy Quran and the
Sunnah of the Holy Prophet (PBUH).
Article 203-DD empowers the Court to
call for and examine the record of any
case decided by any criminal Court
under any law relating to the
enforcement of Hudood for the
purpose of satisfying itself as to the
correctness, legality or propriety of any
finding, sentence or order recorded or
passed by any such criminal Court. Sub-
Article (3) of Article 203-DD lays down

1234
 that "the Court shall have such other
jurisdiction as may be conferred on it
by or under any law". It may be noted
here, that right of appeal was provided
to the Federal Shariat Court by adding
second proviso to section 20(1) of the
Offence of Zina (Enforcement of
Hudood) Ordinance, 1979 (hereinafter
to be referred to as "the Ordinance)",
in the year 1980."

104. Sub-Article (9) of Article 203-E of the

Constitution makes the things further
clear. It states:

"The court shall have power to review

1235
 any decision given or order made by
it."

This power of review is not subject to any

Act of Parliament like Article 188 which
confers power of Review upon the
Supreme Court on the following terms:

"The Supreme Court shall have power,

subject to the provisions of any Act of
Majlis-e-Shoora (Parliament) and of any
rules made by the Supreme Court to
review any judgment or any order
made by it." (Emphasis added)

1236
It will be noticed that the High Courts have
no Constitutional mandate to review its
orders or judgments. The power of review is
conferred upon the High Courts by
operation of subordinate legislation.
Reference: Section 114 read with Order
XLVII of the Code of Civil Procedure.

105. The vast power of review conferred

upon the Federal Shariat Court is in effect
the acceptance of the principle of IJTIHAD
for the development of Islamic
Jurisprudence through the agency of this
Court of original jurisdiction. The objective
in conferring this power upon the Federal
Shariat Court has it genesis in Ayah 17
Surah 13, Ar-Rad, Holy Qur'an:
1237
 Thus does Allah depict truth and
falsehood. As for the scum, it passes
away as dross; but that which benefits
mankind abides on the earth. Thus does
Allah explain (the truth) through
examples.

The decisions of the Federal Shariat Court

are supposed to cleans the existing law of
any dirt or possible trash.

106. The constitutional mandate of review

is quite wide in scope. It includes the power
of revisiting, on its own motion, any

1238
decision given or order made by itself. This
is evident from the cases of Hazoor Bux v.
Federation of Pakistan reported as PLD
1981 FSC 145 decided on 21st March, 1981
but reviewed by this Court on 20'h June,
1982 in the case entitled Federation of
Pakistan v. Hazoor Bux and 2 others PLD
1983 FSC 255.

107. The historic opening words of the first

Ayah of Surah Mujadilah is very significant
as it is the solitary instance in the history of
revealed literature where a woman,
aggrieved by an inhuman custom, having
the force of law, entered a caveat. Her
rights as a wife had been suspended
unilaterally by oral pronouncement made
1239
by the husband. She lodged a protest
before Muhammad (PBUH), the head of the
nascent Islamic polity, because she knew
that Allah through His Apostle had the
power to promulgate, amend, change, alter,
substitute or even repeal any prevalent rule
or custom having the force of law. Her
supplication was answered. The prompt
revelation proclaimed:

"O protesting lady! Your petition has

been heard."

This declaration is preserved in Holy Quran

as Ayah No.1 Surah 58, Al-Mujadilah. The
following principles of law can therefore be
1240
deduced from this very Injunction of Islam:-

(i) Right of protest is conceded to an

aggrieved person;

(ii) Every person aggrieved of an inhuman

rule, law, custom or practice, having
the force of law, has a right to get it
reviewed by competent authority;

(iii) The aggrieved person in such a

situation should have free access to
justice;

1241
(iv) The aggrieved person shall have the
right of audience at the time of
initiating the complaint;

(v) The Authority is under an obligation to

probe into the complaint and may for
that purpose undertake examination
of any impugned law or practice;

(vi) The Authority must examine the issue

and deliver a speaking and an effective
order; and

(vii) The Authority, may in the facts and

circumstances of the case not only
1242
 introduce necessary amendments in
law but may also provide a remedy to
rectify the wrong.

108. In this view of the matter the creation

of Federal Shariat Court is in fact practical
realization of the remedy contemplated by
Holy Quran for persons aggrieved by anti-
people laws and inhuman practices having
the force of law. The Federal Shariat Court,
in exercise of its jurisdiction under Article
203-D, in fact discharges the obligation
imposed by Ayah 103 of Surah 3, Ale-Imran
because the power to declare a law to be in
conflict or otherwise to the Injunctions of
Islam is not only a message to the people to
follow what is good and avoid what is
1243
wrong. The yardstick to determine what is
good or bad according to Muslim belief, is
certainly the Revealed principle.

H. FEDERAL SHARIAT COURT AND COUNCIL

OF ISLAMIC IDEOLOGY

109. Allama Dr. Muhammad Iqbal, the

philosopher poet of East, gave considerable
thought to the question of reconstruction
of modern Islamic jurisprudence during the
second and third decade of twentieth
century. This is evident from his letters to
Sahibzada Aftab Ahmad Khan, Secretary
Muslim Educational Conference dated 4

1244
June, 1925 wherein he also discussed the
scheme then under consideration of Dr.
Arnold. Allama Iqbal was of the view that
the right to undertake Ijtehad should be
conceded to the Muslim Parliament but he
was also conscious of the fact that technical
assistance should be available to the
legislative bodies to ensure correct
interpretation and enforcement of Shariah.
The creation of the Council of Islamic
Ideology and the Federal Shariat Court in
due course of time after the creation of
Pakistan, through constitutional apparatus,
is in fact realization of the aspirations of Dr.
Muhammad Iqbal because the Council of
Islamic Ideology provides technical
assistance/recommendations to the

1245
Parliament/ Provincial Assemblies before
finalizing legislation while the Federal
Shariat Court examines, whenever any
question arises, any law or provision of law
on the touchstone of Injunctions of Islam
after a proposed Bill has materialized into
on Act. The Council of Islamic Ideology
appears to be" an adjunct of the
Parliament/Provincial
Assemblies/President/Governor but it does
not provide remedies to general public. The
Federal Shariat Court is not part of the
legislative wing of the State but it has the
potential to provide relief to any person
who is aggrieved of or is critical of any
legislative measure. This Court on the other
hand gives personal hearing to a petitioner

1246
and undertakes an examination of the
question submitted for its consideration.
The procedure for invoking jurisdiction of
Federal Shariat Court is not only simple but
has been made inexpensive as well. Persons
desirous of seeking examination of a given
law or a provision of law or even custom,
having the force of law, may not be
permitted an ingress in the premises of
legislative bodies to demand review of
impugned legal instruments but the
Constitution has provided a forum at the
federal level to the citizens of Pakistan
enabling them to invoke its extra-ordinary
jurisdiction by making an application,
without stamp duty and claim examination
of any law, on the touchstone of Injunctions

1247
of Islam without constraint of period of
limitation. The application for examination
can be made at any provincial head-quarter
or the principal seat of this Court at
Islamabad. Once a Shariat Petition is
submitted, it cannot be dismissed on the
sole ground of absence or death of the
petitioner. The Court may proceed with the
examination of the impugned law which has
been brought to its notice.

110. The creation of Federal Shariat Court is

a natural sequel to Article 227 of the
Constitution. There is yet another equally
weighty consideration for creating Federal
Shariat Court. The possibility cannot be
ruled out that the recommendations of the
1248
Council of Islamic Ideology are not laid for
discussion before both the Houses and each
Provincial Assembly. In such an event the
jurisdiction of the Federal Shariat Court can
be invoked by any citizen of Pakistan to get
the impugned laws or provision of law
examined on the touchstone of Injunctions
of Islam. This convenient, unproblematic,
cost-free and simple remedy provided by
clause (8) of Article 203-E read with The
Federal Shariat Court (Procedure) Rules,
1981 may also be successfully availed and
the jurisdiction of this court be invoked
under Article 203D in the event the
provisions contained in clause (4) of Article
230 of the Constitution are not complied
with. Such a thing would be tantamount to

1249
resurrecting the basic principle enunciated
in Ayah No. 1 Surah 58, Al-Mujadalah of
Holy Quran. The enunciation of this
principle in Holy Quran was a great step
towards developing jurisprudence based
upon justice, equity, even handedness, and
good conscience. This Ayah also proclaims
the principle that the purpose of
promulgating positive laws is to secure
peace and welfare of the people. In other
words the laws should not be made and
implemented to stifle or suspend the basic
rights of people. The laws and customs
ought to work to the advantage and good of
the neglected and weak section of society in
particular. The spirit and essence of this
Ayah is that social justice has to be

1250
promoted and social evils have to be
eradicated. This Ayah though related with
Family Laws, yet it enunciates 'a general
principle that man-made rules, customs or
laws should be constantly and vigilantly
reviewed in the larger interests of justice
and fair-play. This principle finds support
also from Ayah No.17 Surah 13, Ar-Raad of
Holy Quran which lays down that the
rubbish is destined to perish but that which
benefits humanity tarries oh this earth.
Another principle enunciated by Holy Quran
may also be referred here in support of the
above principle: Amar bil Maaroof wa
Nahee anil Munkar. This maxim has been
repeated for not less than fifteen time in
Holy Quran. This principle refers to the

1251
obligation of prescribing what is good and
forbidding what is not good. Ayah 111 of
Surah 3, Al-e-Imran, while addressing the
Muslims, declares, that Muslims are the
best people because they have been raised
for the betterment of humanity and are
therefore under a religious obligation to
enjoin good and forbid what is evil and also
believe in one God alone.

111. In view of our discussion on the

question of enforcement of Hudood, I
would go to the extent of holding in
absolutely unambiguous terms that even if
the Parliament were to repeal Order No. IV
of 1979, Ordinance, VI of 1979, Ordinance,
VII of 1979 and Ordinance, VIII of 1979,
1252
even then the Federal Shariat Court will
continue having exclusive jurisdiction,
under Article 203-DD, to call for and
examine the record of any case decided by
any criminal court under any law relating to
the enforcement of Hudood.

112. It is therefore abundantly clear that

the basic object of creating Federal Shariat
Court at the national level was to provide a
vigilant and effective forum to oversee that
no legal instrument, made enforceable in
the Federation, remains de hors the
Injunctions of Islam. This particular aspect is
in fact the practical realization of the
second part of clause (1) of Article. 227 of
the Constitution of Pakistan which
1253
proclaims that no law shall be enacted
which is repugnant to Injunctions of Islam.
The Possibility of a legal provision, being
incorporated in a Federal or a Provincial
law, which is contrary to one or more
Injunctions of Islam, cannot be ruled out
because to err is human. The powers
vesting in the Federal Shariat Court to
examine the provisions of any law in fact
provide a speedy and an effective remedy
to rectify any error which might creep in
while drafting the legal instrument.

113. The power conferred upon the Federal

Shariat Court under Chapter 3A of Part VII
of the Constitution is mandatory. The
imperative nature of a decision of the Court
1254
is mentioned in Article 203-G of the
Constitution which states that the final
decision of the Federal Shariat Court is
binding on all the High Courts and on all
courts subordinate thereto. This is at par
with the obligatory nature of the decisions
of the High Court under Article 201 as well
as the provision contained in Article 189
which makes the decision of the Supreme
Court conclusive and binding on all other
courts in Pakistan. This power is therefore
more than what is visualized commonly
about mandatory statutes. Without even
alluding to the power of contempt
stipulated for the three above mentioned
constitutional courts when we examine
these constitutional provisions closely we

1255
discover that the intention of legislature
was indicated in unequivocal terms by
mandating that the order passed by courts
have to be obeyed, implemented and acted
upon and further that the jurisdiction
mandated for these three constitutional
courts shall have to be honoured and
preserved. Clause (2) of Article 5 of the
Constitution states 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 in Pakistan.

ISSUE NO.(j)

1256
 CONCLUSIONS

114. The conclusions arrived at in this

judgment may be summarized as under:--

A. Final or interim orders passed or

judgments delivered by trial courts
exercising jurisdiction on criminal side
with regard to offences covered by the
term Hudood, whether mentioned in
Ordinance VI of 1979; Ordinance VII of
1979; Ordinance VIII of 1979;
Presidents Order No.4 of 1979; Act
No.XXV of 1997 (Control of Narcotic
Substances Act, 1997); The Anti
Terrorism Act, 1997; Act No. XLV of
1257
1860 (The Pakistan Penal Code, 1860)
or any other law for the time being in
force, can be challenged by way of
appeal or otherwise only before the
Federal Shariat Court and no other
court of criminal jurisdiction is
competent to entertain and adjudicate
upon proceedings connected with
Hudood offences. Initiation of
proceedings to quash First Information
Report or pending criminal proceeding
related to Hudood mattes are within
the exclusive jurisdiction of Federal
Shariat Court in view of the mandate
of Article 203DD of the Constitution of
Pakistan.

1258
B. Remedy against grant or refusal of
bail before or during the trial of any of
the above mentioned offences lies
before Federal Shariat Court alone and
no other court has jurisdiction to
entertain any proceedings in such
matters.

C. Sections 11, 28 and 29 of Act VI of

2006 have been found to be violative
of Article 203-DD of the Constitution
of Pakistan. The overriding effect given
to Ordinances VII and VIII of 1979 was
doubly fortified as the provisions of
Chapter 3A Part VII of the Constitution,
which deal with the powers and
jurisdiction of Federal Shariat Court,
1259
 were mandated to have effect
notwithstanding contained in the
Constitution.

D. Section 48 of The Control of Narcotic

Substances Act, 1997 (Act: XXVII of
1997) whereby the High Court has
been empowered to entertain and
decide appeals arising out of the
orders passed by the Special Court as
well as the power of High Court under
section 49 ibid to transfer cases, at any
stave, from one Special Court to
another Special Court are inconsistent
with the provisions contained in
Chapter 3A of Part VII of the
Constitution. The power to entertain
1260
 appeals against orders passed or
judgments delivered by a Special Court
established under section 46 ibid in
matters related to Hudood offences
and other proceedings including
transfer of cases from such court vests
in the Federal Shariat Court because
offences related to Narcotics are
covered by the term Hudood. The
word High Court occurring in these
sections shall be substituted with the
words Federal Shariat Court.

E. Section 25 of Act VI of 2006 (Woman

Protection Act) is declared repugnant
to Article 203-DD of the Constitution
because it makes Lian a ground for
1261
 divorce and thereby causes additional
and uncalled for hardship to the "wife"
which is contrary to the principal of
Ease (Yusr) enunciated by Holy Qur'an.

F. According to the amendment

effected in item 2 of Schedule of Act
XXVII of 1997 dated 21-8-1997, the
Federal Government in exercise of
power vesting in it under section 3 of
the Anti-Terrorism Act, 1997
authorized the Anti-Terrorism Courts
to try some categories of offences
relating to Hudood without providing a
rider in section 25 (i): ibid that appeals
in cases involving Hudood offence
would lie to the Federal Shariat Court.
1262
This amendment in the Schedule
without corresponding change in
section 25(i) offends the constitutional
provision contained in Article 203-DD
which confers exclusive jurisdiction
upon this Court in cases relating to the
enforcement of Hudood. "Any case
decided by any criminal court under
any law relating to the enforcement of
Hudood" is to be heard and decided by
the Federal Shariat Court alone.
(Article 203-DD). This position is
therefore travesty of legal constraint
imposed by the Constitution. No
authority is superior to the
Constitution. Constitution has to be
upheld at all costs.

1263
G. The following ten categories of
offences are inter-alia covered by the
term Hudood as contemplated by
Article 203-DD of the Constitution and
hence within the exclusive appellate
and revisional jurisdiction of the
Federal Shariat Court:

(i) Zina = In all its forms including

Adultery, Fornication and Rape.

(ii) Liwatat= Sexual intercourse

against the order of nature;

1264
(iii) Qazf= Imputation of Zina;

(iv) Shurb = Alcohlic

drinks/Intoxicants/Narcotics etc;

(v) Sarqa = Theft simplicitor;

(vi) Haraba = It includes Robbery,

Highway Robbery, Dacoity and all
other categories of offences
against property as mentioned in
Chapter XVII of Pakistan Penal
Code.

1265
(vii) Irtidad= Apostacy..It includes
all offences mentioned in Chapter
XV of the Pakistan Penal Code,
namely: Of Offences Relating to
Religion.

(viii) Baghee =Treason, waging war

against State; All categories of
offences mentioned in Chapter VI
of the Pakistan Penal Code.

(ix) Qisas = Right of retaliation in

offences against human body. All
these offences are covered by
definition Hadd because the
penalty therein has been
1266
 prescribed by Nass/Ijma. [Abdul
Qadir Audah, has discussed to
some extent the scope of Hadd in
his treatise Al-Tashree ul Jinai al
Islami, volume 1 at page 119, and

(x) Human Trafficking.

Appeal or Revision against any order, final

or interim, passed by any criminal court
under any law with regard to proceedings
connected with or ancillary to or
contributing towards commission of any of
the above-mentioned offences, shall not be
entertained by any court other than the
Federal Shariat Court. Section 338-F of the
1267
Pakistan Penal Code has, in very clear
words, prescribed that in the interpretation
and application of its provisions and in
respect of matters ancillary or akin thereto,
the Court shall be guided by the Injunctions
of Islam as laid down in Holy Quran and
Sunnah. The determination of what is in
accordance with Injunctions of Islam is the
sole province of Federal Shariat Court and
no other court. Additionally all those
matters relating to the Family life of
Muslims, for which the term Hadood Allah
has been used in Holy Quran are covered in
the abmit of Hudood and hence within the
appellate and revisional jurisdiction of the
Federal Shariat Court.

1268
H. The term "enforcement of Hudood"
encompasses all categories of offences
and matters mentioned above. These
offences are included in the scope of
the term Hudood wherein the
punishments have been prescribed by
Holy Quran or Sunnah of the Holy
Prophet PBUH and subsequently
through legislative measures. Such
punishments can be awarded by trial
courts duly constituted under law. The
term tazir when applied to any offence
which partakes of the nature of
Hudood or is ancillary or akin to or
contributing towards commission of
offences covered by the term Hudood
or even where the proof prescribed for

1269
establishing Hadd is lacking, would of
necessity fall within the ambit of, the
term Hudood and hence within the
jurisdiction of Federal Shariat Court.
Consequently all matters within the
parameters of Hudood, detailed in the
main judgment including offences in
which cognizance has been taken in
any form as stipulated in section 190
of the Code of Criminal Procedure or
under any other law dealing with
offences relating to 'Hudood', are, for
all purposes, enshrined in the
jurisdiction of Federal Shariat Court as
mandated by the Constitution, which
jurisdiction includes, appeal, revision,
review, grant or refusal of bail,

1270
 transfer of cases, calling and
examining record of proceedings, and
applications to quash proceeding
initiated before or during trial and all
matters ancillary to such cases, at any
stage of investigation, enquiry or trial.

I. It is an established axiom of law that

vires of an Act are to be examined in
the light of the limitations imposed by
the Constitution. However if the court
finds a law or a provision of law to be
inconsistent with constitutional
provisions, it is competent to strike it
down to the extent of such
inconsistency. The Federal Shariat
Court is additionally empowered to
1271
examine a law on the touchstone of
Injunctions of Islam. The Court will
therefore keep in mind three
elements: The legislative competence;
the touchstone of Fundamental Rights
and the yardstick of Islamic
Injunctions. Such an exercise is
resorted to not because Judiciary is
superior but on account of the fact
that:--

(a) Dignity of law and legal

principles have to be
maintained;

(b) Constitution has to be

1272
 upheld and enforced;

(c)Above all the people of

Pakistan have to be enabled to
live upto the permanent values
and guiding principles
enunciated by Islam; and

(d) Members of Superior

Judiciary are under oath to do
all these things.

J. CERTAIN LEGAL PRESUMPTIONS

1273
115. In this Judgment the following
propositions have been presumed. These
assumptions are based upon various
Injunctions of Islam, the constitutional
provisions and the Judge made law:-

(i) The sole repository of the authority

to interpret legal instrument is the
Court constituted under the
Constitution;

(ii) Members of the superior judiciary are

under oath to uphold the
Constitution and the law;'

1274
(iii) The Preamble, Articles 2A and 31,
Chapter 3A of Part VII and Part IX of
the Constitution make it incumbent
upon the State to create conditions
which may enable the Muslim of
Pakistan, individually and collectively,
to order their lives in accordance with
fundamental principles and basic
concept of Islam and to provide
facilities whereby they may be
enabled to understand the meaning
of life according to the Holy Quran
and Sunnah;

(iv) That Holy Quran prohibits very strictly

any extra-marital activity between
man and woman and is consequently
1275
 full of praise for those who shun illicit
activity, i.e. those who guard their
chastity and private parts. Reference
Ayat 35 Sura 33, Al-( Ahzab and Ayat
29 Sura 70, Al-Ma'arij.

(v) Human dignity, honour and human

life has to be preserved. Laws which
protect property of persons have also
to be upheld.

(vi) Legal provisions are enacted to

establish peace, order and balance in
the society both at domestic level and
among nations at International level.
Reference Ayaat 1 to 6 Sura 83, Al-
1276
 Taffit; Ayat 38 Sura 2, Al-Baqara; Ayat
55 Sura 24, Al-Noor.

(vii) Wisdom and saner counsel

wherever recorded, according to the
well known tradition of the Holy
Prophet PBUH, is the lost treasure of
believers and they are exhorted to
acquire it as and when available. In
this view of the matter all the legal
principles relating to the domain of
interpretation of legal instruments, or
reflecting permanent values, from.
any jurisdiction, if not opposed to the
letter and spirit of Holy Quran and
Sunnah, will be considered part of
principles of Islamic Jurisprudence.
1277
(viii) The Court has to be extremely
vigilant on the issue of
implementation of the Injunctions of
Islam because a stern warning has
been given to those who cover up the
Divine Commandments. Reference
Ayah 159, Surah 2, Al-Baqarah:

"Those who conceal anything of the clear

teachings and true guidance which We
have sent down even though We have
made them clear in Our Book, Allah
curses such people and so do all the
cursers."

1278
116. It would be pertinent to mention that
while writing this judgment in exercise of
jurisdiction vesting in this Court under
Article 203D of the Constitution, guidance
has been sought inter-alia, from the above
mentioned principles.

(ISSUE No. (k))

DECLARATION

117. In view of the reasons recorded in

this judgment under different issues it is
hereby declared:

1279
i. That all those offences whose
punishments are either prescribed or
left undermined, relating to acts
forbidden or disapproved by Holy
Quran, Sunnah, including all such acts
which are akin, auxiliary, analogous,
or supplementary to or germane with
Hudood offences as well as
preparation or abetment or attempt
to commit such an offence and as
such made culpable by legislative
instruments would without fail be
covered by the meaning and scope of
the term Hudood.

ii. The extent of jurisdiction of Federal

Shariat Court in matters relating to
1280
 Hudood under Article 203DD is
exclusive and pervades the entire
spectrum of orders passed or
decisions given by any criminal court
under any law relating to the
enforcement of Hudood and no other
Court is empowered to entertain
appeal, revision or reference in such
cases. No legislative instrument can
control, regulate or amend this
jurisdiction which was mandated in
Chapter 3A of Part VII of the
Constitution of Pakistan.

iii. An order granting or refusing bail

before conclusion of trial in all
categories of offences within the
1281
 ambit of Hudood is covered by the
word proceedings, as used in Article
203DD, and hence within the
exclusive jurisdiction of the Federal
Shasriat Court and can be impugned
only in this Court.

iv. The following ten offence are covered

by the terms Hudood for the purpose
of Article 203DD of the Constitution:

(1) Zina = Adultery, Fornication and

Rape.

(2) Liwatat= Sexual intercourse against

1282
 the order of nature;

(3) Qazf= Imputation of Zina;

(4) Shurb = Alcohlic

drinks/Intoxicants/Narcotics etc;

(5) Sarqa = Theft simplicitor;

(6) Haraba = Robbery, Highway Robbery,

Dacoity. All categories of offences
against property as mentioned in
Chapter XVII of Pakistan Penal Code.

1283
(7) Irtdad= Apostacy;

(8) Baghy =Treason, waging war against

State; All categories of offences
mentioned in Chapter VI of the Pakistan
Penal Code and

(9) Qisas = Right of retaliation in

offences against human body. All these
offences are covered by definition Hadd
because penalty therein has been
prescribed by Nass/Ijma. Abdul Qadir
Audah, has discussed to some extent the
scope of Hadd in his treatise Tashree ul
Janai al Islam, volume 1 at page 119.

1284
 (10) Human Trafficking.

The declaration in the above four items

shall take effect immediately because all
the learned counsel representing the
respondents, the jurisconsult as well the
amicus curiae have, as mentioned in
paragraph 17 of this judgment agreed on
the four issues which are reflected in the
above declaration. These conclusions
having been consented to by the parties
need nothing more to be done.

v. That sections 11 and 28 of the

1285
 Protection of Women (Criminal Laws
Amendment) Act, 2006 (Act VI of
2006) are hereby declared violative of
Article 203DD of the Constitution
because these provisions annul the
overriding effect of Hudood
Ordinances VII and VIII of 1979;

vi. That the portions of sections 48 and 49

of The Control of Narcotic Substances
Act, 1997 (Act XXV of 1997) whereby
the High Court has been empowered
to:

(a) entertain appeals against the

order of a Special Court consisting of
1286
 a Sessions Judge or an Additional
Sessions Judge and

(b) transfer within its territorial

jurisdiction any case from one
Special Court to another Special
Court at any stage of the
proceedings, are violative of the
provisions contained in Chapter 3A
of Part VII of the Constitution
because the offences envisaged by
Act XV of 1997 are covered by the
term Hudood. Both the, sections are
consequently declared violative of
Article 203DD of the Constitution.
The portion which contains the
words High Court should be deemed
1287
 to be substituted by the words
Federal Shariat Court in both the
above mentioned sections.

vii. Section 25 of the Protection of Women

(Criminal Laws Amendment) Act, 2006
(Act VI of 2006) is declared violative of
Article 203-DD of the Constitution as it
omits subsections (3) and (4) of section
14 of The Offence of Qazf
(Enforcement of Hadd) Ordinance,
1979 with the result that it has
adversely effected the operation of
Injunctions of Islam relating to Lian.
Consequently section 29 of Act VI of
2006 is also declared violative of
Article 203DD as it adds clause (vii a)
1288
 Lian in section 2 of the Dissolution of
Muslim Marriages Act, 1939. This
addition in the latter Act also becomes
invalid on account of repugnancy with
the Injunctions of Islam relating to
Lian.

viii. Section 25 of the Anti-Terrorism Act,

1997 (Act No.XXVII of 1997) does not
make provision for filing an appeal
before the Federal Shariat Court in
cases where the Anti-Terrorism court
decides a case relating to some of the
Hudood offence included in the
Schedule as from 21-8-1997. This
omission is violative of Article 203-DD.
The Federal Government should rectify
1289
 this error by the target date fixed by
this Court otherwise the following
rider shall be read at the end of clause
(i) of section 25 of Act XXVII of 1997
after omitting the full t stops.

"but where a private complaint or a First

Information Report or information, as
stipulated in section 190 of the Code of
Criminal Procedure, relating to an offence
falling within the purview of above
mentioned ten categories of Hudood
Offences, is decided by any court
exercising criminal jurisdiction under any
law of the land, the appeal therefrom
shall lie to the Federal Shariat Court."

1290
ix. The declaration relating to Protection
of Women (Criminal Laws Amendment)
Act, 2006 (Act VI of 2006), The Control of
Narcotic Substances Act, 1997 mentioned
at serial No. vi as well as Anti-Terrorism
Act, 1997 shall take effect as from 22nd
June, 2011 by which date necessary steps
be taken by the Federal Government to
amend the impugned laws in conformity
with this declaration whereafter the
impugned provision shall cease to be
effective and this judgment of the Federal
Shariat Court will be operative as on 22-6-
2011. The other items of the Declaration
become operative forthwith.

1291
118. The office is hereby directed to send
copies of this judgment to the Federal
Government as well as four Provincial High
Courts and the Islamabad High Court for
information, necessary action and
compliance.

SUPPLICATION

"(Believers! Pray thus to your Lord):

"Our Lord! Take us not to task if we
forget or commit mistakes. Our Lord!
Lay not on us a burden such as You laid
on those gone before us. Our Lord! Lay
not on us burdens which we do not
have the power to bear. And overlook
1292
our faults, and forgive us, and have
mercy upon us. You are our Guardian;
so grant us victory against the
unbelieving folk. "(2:286)

(Sd.)
SYED AFZAL HAIDER, J

(Sd.)
AGHA RAFIQ AHMED
KHAN, C.J.

(Sd.)
SHAHZADO
1293
 SHAIKH, J

M.A.K./20/FSC Order
accordingly

1294
P L D 2002 Federal Shariat Court 1

Present: Fazal Ilahi Khan, C. J., Dr. Fida Muhammad Khan and

Ch. Ejaz Yousaf, JJ

Mst. ZAFRAN BIBI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.6/P and Criminal Reference No.7/I of 2002, decided on 6th June, 2002.

(a) Islamic Jurisprudence ---

----Criminal Laws of Islam ---Hudood---Islamic Criminal Laws, including the Hudood Laws, are designed,
prescribed and promulgated on the basis of clear Injunctions contained in the Holy Qur'an and Sunnah
of the Holy Prophet (p.b.u.h.)---Said time-tested laws mainly aim at preservation and protection of life,
honour and property of the citizens of an Islamic State and dispensation of justice without any
discrimination ---Irrespective of the consideration for sex, wealth, religion, creed, colour, language or
any other factor, these laws provide safeguards to enable the citizens to enjoy peaceful environment,
free from any encroachment on their fundamental human rights---Like other laws, prosecuting or other
components of law-enforcing machinery, may err in its application in respect to various facts and
circumstances but ideal nature of said laws in ensuring maintenance of public law and order, besides its
other deterrent and reformative aspects, is admittedly far-superior to the man-made laws on account of
its highly balanced approach to individual and public interests---Depth of wisdom of these laws is
unfathomable---Strict standard of evidence is required to prove the offences in view of severity and
gravity of some of the punishments--One can only well realise the far-reaching effects of the wisdom

1295
contained in the Islamic Criminal Laws if one could only visualize oneself stepping in the shoes of the
aggrieved individuals and families subjected, to the heinous offences.

(b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----Ss. 5 & 8---Proof of Zina ox Zina-bil-Jabr liable to Hadd---Essentials--Held, there must be either a
confession of the accused of commission of offence of Zina, before a Court of competent jurisdiction, or,
in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms
to the standard of Tazkiya-al-Shahood (i.e. purgation).

(c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----S. 8-----Allegation of Zina against a married woman whose husband had been convicted about nine
years before in a murder case and was confined in r Jail ---Proof--- Hadd punishment---Testimony of
even one witness was not on the record and the whole case was based on circumstantial evidence
coupled with the statements made by the accused, at different stages of the case--Trial Court while
awarding Hadd punishment had considered such statements as confession and, taking, into account the
factum of pregnancy and subsequent delivery of a child as corroboration, deemed it a sufficient ground
for culpability of the accused lady---Statements of the accused made before police, which formed basis
of formal F.I.R.; statement before the Magistrate recorded under S.164, Cr.P.C. and thereafter before
the Trial Court under Ss.342 & 340(2), Cr.P.C. could, by no stretch of imagination, be called confession of
the guilt---Validity---Scrutiny of record revealed that neither the statements of the accused came under
the ambit of confession, envisaged by S.8, Offence of Zina (Enforcement of Hudood) Ordinance, 1979
nor the pregnancy/delivery of child could, in circumstances, be const ed as sufficient basis for award of
Hadd punishment.

(d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 8---Confession in context of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---
Meaning---Essentials for confession to be effective---Wilful commission of offence of Zina and subjection
to the same under coercion--- Distinction---When statements made by the lady accused contained the

1296
word "forcible" everywhere and her- stand, right from recording of the F.I.R. till final stage of the trial,
was that she was subjected to "forcible Zina", no statement made by her at all stages could. be
considered an acknowledgement of her guilt---Nothing was available on record, in the present case, to
dislodge the exculpatory portion of statements maintained by the accused lady throughout the trial; she
was not stated to be a woman of easy virtue; no iota of evidence was available to show that she was
having any illicit liaison with any male person; she was not stated to have been seen in the company of
any accused nominated by her in her statements and no complaint about her conduct was ever made by
any one of the locality---Statement of accused, therefore, was to be accepted as a whole and
prosecution could not make pick 'and choose exercise to formulate its case against the
accused---Statement of accused, unless there was anything cogent on record to contradict her, was to
be accepted in its entirety--Accused lady though had nominated two different accused for commission
of Zina-bil-Jabr with her but prosecution could not get benefit from the same because defence of an
accused, whatever absurdity it might contain, could not take the place of evidence against
him/her---Contradictions found in the statements of lady accused created doubt about the actual male
accused, thus male co-accused nominated by her got the benefit thereof and was acquitted.

Confession in context of the Ordinance means, inter alia, statement of an adult and sane person,
regarding commission of offence of Zina with consent, for which the charge is founded before the Court
of competent jurisdiction. It does not include commission of offence of Zina under duress. There is
difference between wilful commission of offence of Zina and subjection to the same under coercion. The
statements in the present case made by accused contain the word "forcible" everywhere. Her stand,
right from recording of the F.I.R. till final stage of the trial, is that of her subjection to "forcible Zina".
Thus, no statement made by her at any stage could be considered an acknowledgement of her guilt. The
complaint made by her before the police was rather expression of a grievance to seek its remedy the
nature of other statements is also exculpatory. The confession to be effective, in the context of the
Ordinance, firstly must be voluntary, with free consent without any coercion or inducement, secondly
must be explicit as to the commission of the actual offence of Zina with free will, thirdly must be four
times in four different meetings and, fourthly, must be recorded by the Court who has competent
jurisdiction to try the offence under the law. The prosecution is always loaded with the responsibility to
produce its own evidence to establish guilt of an accused beyond reasonable doubt. In the present case
there is nothing on record to dislodge the exculpatory portion of her statements maintained by her
throughout the trial. There is nothing on record to even presume that she was a woman of easy virtue.
There is also no iota of evidence to show even that she was having any illicit liaison with any male
person. The available record is also completely silent about her having been seen in the company of any
accused, nominated by her in her statements. No complaint about her conduct was ever made by any
one of the locality. Therefore, her statement is to be accepted as a whole. The prosecution cannot make
pick and choose exercise to formulate its case against the accused. Unless there is anything cogent on
record to contradict her self-exculpation, her statement according to the established principles of
criminal law is to be accepted in its entirety. She has nominated two different accused for commission of
Zina-bil-Jabr with her but the prosecution cannot get benefit from the same, because defence of an

1297
accused, whatever absurdity it might contain, cannot take the place of evidence against him/her.
However, the contradiction found in the statements created doubt about the actual male accused and
thus the co-accused nominated by her got the benefit thereof and was acquitted. Hudood do not
discriminate.

(e) Criminal trial--

---- Defence of an accused, whatever absurdity it might contain, could not take place of evidence against
him/her.

(f) Criminal trial--

---- Unless there was anything cogent on record to contradict accused's self-exculpation, his/her
statement was to be accepted in its entirety.

(g) Islamic Jurisprudence--

----Crime and punishment---Punishment of Hudood---Hudood do not discriminate.

(h) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----S. 8---Allegation of Zina against a married woman whose husband had been convicted about nine
years before in a murder case and was confined in Jail---Pregnancy and subsequent birth of child by the
accused lady ---Effect--Mere pregnancy in itself was not a proof of her commission of Zina, for accused
was a married lady whose husband was still alive and though he was imprisoned in jail but there was
absolutely no embargo on any one of his visitors to meet him as he was not undergoing solitary
confinement and the accused lady was visiting him off and on and had also occasions for privacy with

1298
him as he was, detailed to perform duty with one of the jail wardens and had more freedom than the
other prisoners---Imprisoned husband of the accused had submitted an affidavit and made statement
on oath, wherein inter alia, he owned legitimacy of the child born during the trial---Such being a highly
pertinent aspect of the whole case it was certainly noticeable that who else could better testify and be a
better judge of the pregnancy /legitimacy of child of a married lady than that of her husband---Mere
pregnancy of the accused, in circumstances, was no ground for her conviction.

(i) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----S. 8---Allegation of Zina against' an unmarried girl or a married woman having no access to her
husband---Mere pregnancy of such lady, by itself, when there was no evidence at all, was no ground for
imposition of Hadd punishment if she comes out with the defence that pregnancy was the result of
commission of rape on her.

Badaius, Sanai, Vol. II; Al-Mughni by Ibn Qudama, Vol. VIII and Bidayatul Mujtahid, Vo1.II ref.

(j) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----S. 8---Allegation of Zina against a married woman having no access to her husband-- -Pregnancy of
such lady and delay in lodging F.I.R.--Presumption---Mere delay per se was no ground for drawing
adverse inference in such-like cases because they involve family honour---Pregnancy and subjection to
Zina-bil-Jabr being two different matters were not interconnected so as to provide basis for conjecture
for her culpability- --Statement of accused lady under S.342, Cr.P.C., showed that the words "illegitimate
child" had been used in a complex question but the lady was not asked about the source of her
pregnancy anywhere and thus, she could not get an opportunity of explaining the incriminating
circumstance appearing or finding basis in evidence, against her---If a person is coerced to commit Zina,
that person after subjection to Zina, shall not be liable to any punishment whether Hadd or
Ta'zir---Other party who caused coercion shall, however, be liable for punishment either of Hadd or of
Ta'zir on the basis of evidence as the case may be and in case of pregnancy of a woman, either
unmarried or, in case of being married, having no access to her husband, on her conception, if pleaded
that that was the result of commission of offence of rape on her, she could not be awarded punishment
of Hadd---Burden of proving her lack of consent shifted to her and the truth of her statement could be
ascertained from the attending circumstances at the time and after the occurrence---Principles.

1299
In the present case presumption against the accused was drawn on the basis of delay in her reporting
the matter to police. Since after medical examination on the same date she was found pregnant of 7/8
weeks and the date of occurrence of commission of Zina-bil-Jabr as alleged by her was 11/12 days prior
to the report it was conjectured that she was a consenting party to the commission of Zina but she
disclosed the matter only when she became pregnant and got apprehended of its disclosure. Although
promptness in lodging of F.I.R. in ordinary criminal cases has always been considered necessary to
exclude the possibility of deliberation and fabrication, no hard and fast rule can be laid down to
precisely prescribe time limit for this purpose. Nevertheless the Court can better evaluate the weight to
be attached to delay that occurs in this connection, on the basis of overall evidence on record in a given
case. Despite this, mere delay per se is' no ground for drawing adverse inference in such-like cases
because they involve family honour. Members of the family are normally hesitant to promptly make
report to police and therefore, they wait for getting approval of male/elder members of the family to do
so. In the present case the delay has been plausibly explained in the F.I.R. itself. The accused who is also
the complainant waited for return of her father-in-law to lodge the report, as advised by her
mother-in-law. Therefore, there was no reason to conclude that her delay in reporting the matter was
on account of her long silence and consent to the sexual act and she only disclosed the occurrence when
she came to know that she was pregnant. Nevertheless the very fact that she was found pregnant of 7/8
weeks could also have been considered a proof of her innocence, otherwise she could have easily
advanced the date of occurrence to bring it in line with the period of her pregnancy. In this context it is
also pertinent to note that in her initial report she made no reference to her pregnancy having been
resulted from Zina-bil-Jabr. There was no reason with the Investigating Officer to conclude that she was
telling lie about the date of occurrence. Her pregnancy and subjection to Zina-bil-Jabr were two
different matters and were not inter-connected so as to provide basis for conjecture for her culpability.
For the first time the factum of pregnancy having been caused by Zina-bil-Jabr finds mention in her
statement under section 164, Cr.P.C. but that statement is not proved on record. The Magistrate who
recorded the statement had not appeared as a witness. At that time she had also no legal assistance.
Besides the words:

“I am pregnant due to Zina-bil-Jabr of the criminal.(28-3-2001)”

most visibly appear to have been manipulated and subsequently inserted in between the lines. In her
statement under section 342, Cr.P.C. the words "illegitimate child" have been used in a complex
question but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could
not get an opportunity of explaining the incriminating circumstance appearing or finding basis in
evidence against her. Although she had the assistance of a counsel at that stage but the least that could
be said in this respect is that the case had not been properly conducted.

1300
If a person is coerced to commit Zina, that person, after subjection to Zina, shall not be liable to any
punishment whether Hadd or Ta'zir. The other party who causes coercion shall, however, be liable for
punishment either of Hadd or of Tazir on the basis of evidence, as the case may be.

In case of pregnancy of woman, either unmarried or, if married, having no access to her husband, when
she conceives but pleads that that was the result of commission of offence of rape on her, she cannot be
awarded punishment of Hadd.

Burden of proving her lack of consent shifts to her and the truth of her statement could be ascertained
from the attending circumstances at the time and after the occurrence.

In fact this concept is based on the cardinal principle of Islamic Criminal Law that for conviction of
someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that
he/she committed that act, but it is also to be ensured that he/she committed that of his/her own
free-will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor
liable to conviction. This position is summed up in the general principle of the Shariah which holds that a
man is acquitted of responsibility for acts to which he has been compelled.

The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to
be adopted so that no innocent „person gets punished. The point of view prescribed by Islamic Criminal
Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet
(peace be upon him):

(a). "Avoid enforcing Hudood as much as you can". (Ibn Majah).

(c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people
from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in
acquitting someone rather than he should err in punishing someone (who is not guilty)."
(Tirmidhi).

1301
(k) Islamic Jurisprudence--

----Crime and punishment---Sentence of Hadd, award of---Principles.

The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to
be adopted so that no innocent person gets punished. The point of view prescribed by Islamic Criminal
Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet
(peace be upon him):

(a) "Avoid enforcing Hudood as much as you can". (Ibn Majah).

(c) "Keep ffudood away from Muslims as much as possible. If there is any way to spare people
from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting
someone rather than he should err in punishing someone (who is not guilty) " (Tirmidhi).

(1) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--

----Ss. 5, 8 & 10(2)---Accused was charged for commission of offence under S.10(2), Offence of
Zina/Enforcement of Hudood) Ordinance, 1979 which fell under the category of Ta'zir (penal
punishment) and carried less sentence but the accused had been convicted for Rajm, a Hadd
punishment without changing the charge---Validity---Held, while the charge could be altered at the time
of recording conviction from a greater offence to that of a lesser offence, in circumstances, the vice
versa position was not permissible ---Hadd sentence on such score awarded to the accused was not
maintainable which was set aside by Federal Shariat Court.

Syed Iftikhar Hussain Gilani, Zafarullah Khan and Malik Fakhre Azam for Appellant.

1302
Ms. Jehanzeb Rahim, A.-G., N.-W.F.P. with Ms. Musarat Hilali, Addl. A.-G., N.-W.F.P. for the State.

Dates of hearing: 5th and 6th, June, 2002.

JUDGMENT

DR. FIDA MUHAMMAD KHAN, J.--This appeal filed by Mst. Zafran Bibi, wife of Niamat Khan is directed
against the judgment dated 17-4-2002 passed by the learned Additional Sessions Judge-II, Kohat
whereby he has convicted her under section 5 of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979, hereinafter referred to as the Ordinance, and awarded her the punishment of stoning
to death. A criminal reference for confirmation of the same has been made to this Court, as required
under the law. We are disposing of both the matters by this single judgment.

2. Briefly stated, the case of prosecution started on 26-3-2001 when Mst. Zafran Bibi made report at
Police Station, Gumbat, District Kohat, to the effect that her husband Niamat Khan who bad been
convicted about nine years before, in a murder case, was since then confined in Central Jail, Haripur. She
alleged that about 11 / 12 days prior to the report, when she had gone to the nearby hill, Kholgai, at "Asr
vella", and was busy it cutting fodder over there, Akmal Khan son of Ghuncha Gul, overpowered her and
committed "Zina-bil-Jabr" with her. Thereafter, she returned to her house and informed- her
mother-in-law Zar Bibi. On that day her father-in-law had gone to Haripur to see his son, therefore, her
mother-in-law advised her to wait for his return and report the matter to police if advised by him to do
so. After his return, she lodged the report accordingly. At the time of her report at police station, her
father-in-law, Zabita Khan son of Khan Muhammad was accompanying her. The said report was
thumb-marked by her as well as by her father-in-law as a token of its correctness. Thereafter, Mst.
Zafran Bibi was sent for medical examination, alongwith her father-in-law, under the custody of I.H.C.
Jalal Din. She was medically examined. The Woman Medical Officer found her pregnant for about 7-8
weeks. Considering the period of her pregnancy vis-a-vis the period of her subjection to Zina, as alleged
by her in her report before the police, being at variance, the police arraigned her also as accused
alongwith accused Akmal Khan and challaned them to face the trial. Both of them were formally charged
on 13-10-2001 for offence punishable under section 10(2) of the Ordinance. They did not plead guilty to
the charge and claimed trial. Therefore, they were tried. On conclusion of the trial while her co-accused
Akmal Khan was acquitted, she was convicted and sentenced as mentioned hereinabove.

1303
3. At the trial prosecution examined in three witnesses. P.W.1 is Muhammad Firdus, S.H.O. He deposed
that after lodging report Exh.PA by Mst. Zafran Bibi on 26-3-2001 he prepared injury sheet Exh.PM for
her medical examination at Female Hospital. He sent the same through Jalal Din, H.C. He received the
medical report of Mst. Zafran Bibi wherein it transpired that she was pregnant. On the basis of that
report he charged her as well as her co-accused Akmal Khan under sections 5/10 of the Ordinance and
lodged F.I.R. Exh.P.W.I/1 on 27-3-2001. He arrested Mst. Zafran Bibi and prepared site plan on her
pointation. Her co-accused Akmal Khan, however, could not be found out. He produced Mst. Zafran Bibi
before Illaqa Magistrate where her statement under section 164, Cr.P.C. was recorded. In the
meanwhile he arrested co-accused Akmal Khan after rejection of his pre-arrest bail and got him
medically examined. He also recorded statements of P.Ws. under section 161, Cr.P.C. After completion
of investigation he submitted complete challan P.W.2 is Hassan Mahmood, Constable. He is a marginal
witness to the recovery memo. Exh.P.W.2/1 whereby the Investigating Officer took into possession one
bottle containing swabs Exh.P/1, one "Azarband" (trouser string) belonging to Mst. Zafran Bibi Exh.P/2.
P.W.3 is Dr. Robeena Yasmin, Woman Medical Officer. On 26-3-2001 she examined Mst. Zafran Bibi and
thereafter trade the following observations:-----

"A young lady well-oriented in time and space, secondary sexual character are well-developed.
Bruise mark on left buttock.

Per abdomen: No abnormality detected,

Per Vagina examination: Hymen not intact O.S. closed U.T bulky F.X, clear.

Adv: Pregnancy Test.

Result: Positive.

Period of pregnancy on examination: 7-8 week approximately"

She also took vaginal swabs and handed over the same to the police. She issued Medico-Legal Report
Exh.P.W.3/1.

1304
4. Mst. Zafran Bibi was examined under the provisions of section 342, Cr.P.C. wherein she stated that
she was innocent and falsely charged. In response to question No.1 she stated that accused Akmal Khan
repeatedly committed Zina with her without her consent. She stated that she was ready" to take oath
on the Holy Qur'an that no one except Akmal Khan, accused committed Zina with her. She admitted that
she had given birth to a daughter who was still alive and in her custody. She added that she was an
illiterate lady and may have given wrong statement to police on account of that reason. She also made
statement on oath in the following words:----

"I am the wife of Niamat Gul. He was in the Central Jail, Haripur as was imprisoned/convicted in
some criminal case. Zabta Khan is my father-in-law. I was residing in the house of my husband
alongwith his father. One day he took me to the Police Station, Gumbat, where he lodged the
report. I have not given any statement in police station nor lodged any report to the police.
What has been done in the police station was done by the police at the instance of my
father-in-law. In fact Jamal son of Zabta Khan has committed Zina forcibly with me and my
father-in-law to save his son Jamal involved accused in the case in hand. Accused Akmal has not
committed Zina with me. He is innocent. Sher Haider, Advocate was engaged by my husband for
the prosecution of the case on my behalf. The said Advocate have acted and prosecuted the
case at the direction of my husband. I am totally unaware about the proceeding and my
statement under section 342, Cr.P.C."

5. We have heard learned counsel for the parties and have perused the record with their assistance.
Learned counsel Syed Iftikhar Hussain Gilani appeared on behalf of appellant Mst. Zafran Bibi and made
detailed submissions. He was assisted by learned counsel Fakhre Azam Khan, Advocate. Learned
Advocate-General, N.-W.F.P. Mr. Jehanzeb Rahim argued the case on behalf of the State.

6. Syed Iftikhar Hussain Gilani, learned counsel for appellant/accused, contended that conviction of the
appellant/accused is illegal because proof for the same, as envisaged under section 8 of the Ordinance,
is not available on record. Elaborating his point, the learned counsel submitted that neither the
appellant/accused has made any confession of the commission of offence before a Court of competent
jurisdiction nor the required testimony of four Muslim adult male witnesses; is available anywhere on
record. He submitted that in fact there is absolutely no evidence worth the name to be sufficient for
implication of the appellant/accused. He vehemently contended that mere pregnancy or birth of a child
by a lady was not sufficient for her conviction under the heinous charge of Hadd. Referring to the
affidavit Exh.D/1, submitted by the husband of Mst. Zafran Bibi he maintained that the same was
self-speaking of the innocence of the appellant/accused. Learned Advocate Mr. Fakhre Azam Khan,
Advocate who was available to assist the senior counsel for the appellant also made submissions. He

1305
assailed the impugned judgment on the legal grounds and submitted that the appellant/accused was
charged for commission of offence punishable under section 10(2) of the Ordinance. Therefore her
subsequent conviction for a graver offence under section 5 of the Ordinance was illegal. He also
reiterated that pregnancy alone was not sufficient for conviction under such a heinous charge. Learned
Advocate-General, N.-W.F.P. Mr. Jehanzeb Rahim submitted that the appellant/accused Mst. Zafran Bibi
has made different statements under sections 164,, 342 and 340(2), Cr.P.C. and has, also submitted
affidavit. During the course of arguments, he vehemently contended that for ascertaining the truth and
arriving at correct conclusion, the case should be remanded to the learned trial Court for recording
statement of the husband of appellant Mst. Zafran Bibi, as he has already submitted affidavit, so that
legitimacy of the child of the appellant/accused, born during the trial, could also be determined.

7. After hearing the arguments of all learned counsel for the parties and taking into account different
aspects of the matter, we also deemed it necessary to bring on record the statement of Niamat Khan,
husband of Mst. Zafran Bibi. However, instead of remanding the case to the trial Court which could have
further prolonged the agony of the poor family, we adjourned the case to the next day and, exercising
our powers under the provisions of section 428, Cr.P.C. for the sake of speedy disposal of the case, made
order for production of Mst. Zafran Bibi and her husband Niamat Khan (who had earlier submitted
affidavits Exh.DC and Exh.D/2) for recording their statements. Accordingly, they were produced on the
next day and their statements on oath under section 340(2), Cr.P.C. were recorded according to law.

8. Niamat Khan, husband of the appellant/accused, made statement on oath in the following words:-----

"Mst. Zafran Bibi is my wife. She was on visiting term with me while I was serving imprisonment
in jail at Haripur. Mst. Zafran Bibi has given birth to Mst. Shabnam Bibi from our wedlock. I have
seen my affidavit, Exh.D-1, which was drafted at my instance and read over to me. After
admitting it correct I have thumb-impressed the same. The application is Exh.D-2, Mst. Shabnam
Bibi is my legitimate child. "

Thereafter, the appellant/accused Mst. Zafran Bib made deposition in the following words:--

"I have seen the affidavit, Exh.DC, which was drafted at my instance and read over to me. After
admitting it correct I have thumb-impressed the same. I have given birth to a child namely
Shabnam Bibi, from the wedlock of my husband. "

1306
After recording their depositions, we proceeded with the appeal.

9. We anxiously examined the evidence on record in the light of submissions made by learned counsel
for the parties, This is an unfortunate case, which received much publicity in the National/International
Press. It also gave rise to several controversies. On account of disinformation, misunderstanding, lack of
knowledge of the facts and circumstances of the case, some organizations resorted even to take out
processions and demand repeal of the Hudood Laws itself without realizing that it was not the laws of
Hudood (i.e. fixed sentence prescribed by Holy Qur'an and Sunnah) but its misapplication that resulted
in miscarriage of justice. So far as the Islamic criminal law, including the Hudood laws, are concerned
they are designed, prescribed and promulgated on the basis of clear injunctions contained in the Holy
Qur'an and Sunnah of the Holy Prophet (peace be upon him). These time tested laws mainly aim at
preservation and protection of life, honour and property of the citizens of an Islamic State and
dispensation of justice without any discrimination. Irrespective of the consideration for sex, wealth,
religion, creed, colour, language or any other factor, these laws provide safeguards to enable the
citizens enjoy peaceful environment, free from any encroachment on their fundamental human rights.
Like other laws, the prosecuting or other components of law-enforcing machinery may err in its
application in respect to various facts and circumstances, however, the ideal nature of these laws in
ensuring maintenance of public law and order, besides its other deterrent and reformative aspects, is
admittedly far-superior to the man-made laws on account of its highly balanced approach to individual
and public interest. In fact the depth of wisdom of these laws is unfathomable. Unfortunately some
misinformed or dis-informed individuals, while looking at the severity and gravity of some of the
punishments raise objections; but then they fail to appreciate the strict standard of evidence required to
prove the offences. They probably also fail to judge the extent of damage being caused by the offenders
to the aggrieved families. They also overlook the fact that the criminals by their nefarious acts disturb
the tranquility of the society, by and large, cause error and spread insecurity all around. The brutal
offenders who commit murder, rape or dacoity, therefore, need to be dealt with iron hand otherwise
their unbridled activities open floodgate of innumerable crimes at the cost of lives, honour and property
of innocent people. One can only well-realise the far-reaching effects of the wisdom contained in these
laws if one could only visualise oneself stepping in the shoes of the aggrieved individuals and families
subject to the heinous offences. It is well put by one of the best teachers of history (namely i.e. Sheikh
Saddi) in the following couplet:

(Showing mercy to a wolf in fact amounts to inflicting cruelty on the sheep).

1307
10. Before proceeding with the consideration of the grounds taken in appeal it seems more appropriate
to refer to section 8 of the Ordinance which provides the standard of proof required for Zina liable to
Hadd. The same reads as under:--

"Proof of Zina or Zina-bil-Jabr liable to Hadd.--Proof of Zina or Zina-bil-Jabr liable to Hadd shall
be in one of the following forms, namely:--

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the
offence; or

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the
requirements of Tazkiyah-al-Shuhood, that they are truthful persons and abstain from major sins
(Kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence:

Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims.

Explanation.--In this section "Tazkiyah-al-Shuhood" means the mode of inquiry adopted by a Court to
satisfy itself as to the credibility of a witness.

Confession recorded by a Court other than the one competent to try the case not a confession. An
accused has to make a confession of the commission of the offence before a Court of competent
jurisdiction i.e the trial Court."

As is evident from the above, there must be either a confession of the accused of the commission of
offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at
least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiyah-al-Shuhood
(i.e. purgation).

1308
11. Admittedly, not speak of four witnesses, as required under the law, there is no testimony of even
one eye-witness in this case. The whole case is based on circumstantial evidence, coupled with the
statements made by the appellant/accused, at different stages of the case. The trial Court considered
these statements as confession and, taking into account the factum bf pregnancy and subsequent
delivery of a child, perhaps as corroboration, the learned Judge deemed it a sufficient ground for
culpability of the appellant. However, thorough scrutiny reveals that neither the statements of
appellants come under the ambit of confession, as envisaged by section 8 of the Ordinance, nor the
pregnancy/delivery of child, could, in circumstances, be construed as sufficient basis for award of Hadd
punishment. The reasons for holding this are summed up in the subsequent paras.

12. So far as the statements of the appellant/accused are concerned these are made before the police,
which formed basis for formal F.I.R. on 27-3-2001, secondly before the Magistrate, recorded under
section 164, Cr.P.C. on 28-3-2001 and thereafter before the trial Court under the provision of sections
342 and 340(2), Cr.P.C. It is highly pertinent to observe that all these statements could by no stretch of
imagination be called confession of the guilt. It may be noted that confession in context of the
Ordinance means inter alia. statement of an adult and sane person, regarding commission of offence of
Zina with consent, for which the charge is founded before the Court of competent jurisdiction. It does
not include commission of offence of Zina under duress. There is difference between wilful commission
of offence of Zina and subjection to the same under coercion. The statement made by appellant
contains the word "forcible" everywhere. Her stand, right from recording of the F.I.R. till final stage of
the trial, is that of her subjection to "forcible Zina". Thus, no statement made by her at all stages could
be considered an acknowledgement of her guilt. The complaint made by her before the police was
rather expression of a grievance to seek its remedy. The nature of other statements is also exculpatory.
It is pertinent to mention that the confession to be effective in the context of the Ordinance, firstly must
be voluntary, with free consent without any coercion or inducement, secondly must be explicit as to the
commission of the actual offence of Zina with free-will, thirdly must be four times in four different
meetings as held in a number of cases by Federal Shariat Court and Shariah Appellate Bench' and,
fourthly, must be recorded by the Court who has competent jurisdiction to try the offence under the
law. Needless to say that the prosecution is always loaded with the responsibility to produce its own
evidence to establish guilt of an accused beyond reasonable doubt. In the instant case there is nothing
on record to dislodge the exculpatory portion of her statements maintained by her throughout the trial.
There is nothing on record to even presume that she was a woman of easy virtue. There is also no iota
of evidence to show even that she was having any illicit liaison with any male person. The available
record is also completely silent about her having been seen in the company of any accused, nominated
by her in her statements. No complaint about her conduct was ever made by anyone of the locality.
Therefore, her statement is to be accepted as a whole: The prosecution cannot make pick and choose
exercise to formulate its case against the appellant. Unless there is anything cogent on record to
contradict her self-exculpation, her statement according to the established principles of criminal law is
to be accepted in its entirety. We may also add that she has nominated two different accused for
commission of Zina-bil-Jabr with her but the prosecution cannot get benefit from the same, because

1309
defence of an accused, whatever absurdity it might contain, cannot take the place of evidence against
him/her. However, the contradiction found in the statements created doubt about the actual male
accused and thus the co-accused nominated by her got the benefit thereof and was acquitted. Here we
may make it clear that Hudood do not discriminate.

13. We may also observe that at the time of making report the appellant was accompanied by her
father-in-law. At that time she was living in his house. Keeping in view the cultural and traditional
background of the area her father-in-law had not the slightest suspicion about her guilt or consent for
the alleged sexual intercourse or illegality of her pregnancy otherwise he would have acted differently
by either resorting to "honour killing" or at least to the expulsion of appellant from his house.

14. Regarding her pregnancy and subsequent birth of child, which is a significant circumstance against
her we may mention that mere pregnancy in itself it is not a conclusive proof of her commission of Zina.
She was a married lady whose husband was still alive. Although he was imprisoned in Central Jail,
Haripur but there was absolutely no embargo on any one of his visitors to meet him, as he was not
undergoing solitary confinement. It is on record that at the time of occurrence her father-in-law had
gone to visit him in the jail and, on account of this reason, report of the matter to police was delayed.
His affidavit shows that like other family members, the appellant was visiting him off and on and had
also occasions for privacy with him as he was, allegedly, detailed to perform duty with one of the Jail
Wardens and had probably enjoying more freedom than the other prisoners. Her husband who
submitted affidavit also subsequently made statement on oath, reproduced hereinabove, wherein, inter
alia, he owned legitimacy of the child born during the trial. This is a highly pertinent aspect of the whole
case and it is certainly noticeable to mention that who else can better testify and be a better judge of
the pregnancy/legitimacy of child of a married lady other than that of her husband. Therefore, mere
pregnancy of appellant Mst. Zafran Bibi, in circumstances, was no ground for her conviction.

15. For the sake of further elucidation, we may also mention that, even otherwise, mere pregnancy, by
itself when there is no other evidence at all, of a married lady, having no access to her husband, or even
of an unmarried girl is no ground for imposition of Hadd punishment if she comes out with the defence
that that was the result of commission of rape with her. Eminent Jurists like Hanafis and Shafis hold this
view. Imam Malik also agrees with the same with a provision that the burden of proving want of consent
on her part by raising alarm or making complaint against the, same would lie, on her. (Badaius Sanai),
Vol. II, Al-Mughni (Ibn Qudama), Vol. VIII, Bidayatul Mujtahid, Vo1.II) This view finds full support from an
incident that was reported to the Holy Prophet (peace be upon him) that a woman was raped and he
(peace be upon him) acquitted her of the charge punishable with Hadd (Al-Mughni).

1310
16. In the instant case presumption against the appellant was drawn on the basis of delay in her
reporting the matter to police on 26-3-2001. Since after medical examination on the same date she was
found pregnant of 7/8 weeks and the date of occurrence of commission of Zina-bil-Jabr as alleged by her
was 11/12 days prior to the report it was conjectured that she was a consenting party to the commission
of Zina but she disclosed the matter only when she became pregnant and got apprehended of its
disclosure. In this respect we would like to mention that although promptness in lodging of F.I.R. in
ordinary criminal cases has always been considered necessary to exclude the possibility of deliberation
and fabrication, no hard and fast rule can be laid down to precisely prescribe time limit of this purpose.
Nevertheless the Court can better evaluate the weight to be attached to delay that occurs in this
connection, on the basis of overall evidence on record in a given case. Despite this, as held by superior
Courts including Federal Shairat Court, in number of cases, mere delay per se is no ground for drawing
adverse inference in such-like cases because they involve family honour. Members of the family are
normally hesitant to promptly make report to police and, therefore, they wait for getting approval of
male/elder members of the family to do so. In the instant case the delay has been plausibly explained in
the F.I.R. itself. The appellant who is also the complainant waited for return of her father-in-law to lodge
the report, as advised by her mother-in-law. Therefore, there was no reason to conclude that her delay
in reporting the matter was on account of her long silence and consent to the sexual act and she only
disclosed the occurrence when she came to know that she was pregnant. Nevertheless the very fact that
she was found pregnant of 7/8 weeks could also have been considered a proof of her innocence,
otherwise she could have easily advanced the date of occurrence to bring it in line with the period of her
pregnancy. In this context it is also pertinent to observe that in her initial report she made no reference
to her pregnancy have been resulted from Zina-bil-Jabr. There was no reason with the Investigating
Officer to conclude that she was telling lie about the date of occurrence. Her pregnancy and subjection
to Zina-bil-Jabr were two different matters and were not inter-connected so as to provide basis for
conjecture for her culpability. For the first time the factum of pregnancy having been caused by
Zina-bil-Jabr finds mention on 28-3-2001, in her statement under section 164, Cr.P.C. but that statement
is not proved on record. The Magistrate who recorded the statement has not appeared as a witness. At
that time she had also no legal assistance. Besides this we have also observed that the words:

“I am pregnant due to Zina-bil-Jabr of the criminal.(28-3-2001)”

most visibly appear to have been manipulated and subsequently inserted in between the lines. In her
statement under section 342, Cr.P.C. the words "illegitimate child" has been used in a complex question
but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could' not get
an opportunity of explaining the incriminating circumstance appearing or finding basis do evidence

1311
against her. Although she had the assistance of a counsel at that stage but the least that could be said in
this respect is that the case has not been properly conducted.

17. It may also be pertinent to mention that if a person is coerced to commit Zina, that person after
subjection of Zina, shall not be liable to any punishment whether Hadd or Ta'zir. The other party who
causes coercion shall, however, be liable for punishment either of Hadd or of Ta'zir on the basis of
evidence, as the case may be. A number of incidents are reported during the period of Holy Prophet
(peace be upon him), as stated above, and in the period of Orthodox Caliphate as well where the
women coerced to commit Zina were let of free and acquitted but the co-accused were convicted and
sentenced. (Tirmizi, Bukhari, Abu Daud, Al-Tashri-al-Janai-al-Islami by Abdul Qadir Auda, Volume II). It
has also been held that in case of pregnancy of woman, either unmarried or, in case of being married,
having no access to her husband, conceives but pleads that that was the result of commission of offence
of rape on her, she cannot be awarded punishment of Hadd. Imam Malik, however, adds, as mentioned
above, that the burden of proving her lack of consent shifts to her and the truth of her statement could
be ascertained from the attending circumstances at the time and after the occurrence.

18. In fact this concept is based on the cardinal principle of Islamic Criminal Law that conviction of
someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that
he/she committed that act, but it is also to be ensured that he/she committed that of his/her own
free-will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor
liable to conviction. This position is summed up in the general principle of the Shariah which holds that a
man is acquitted of responsibility for acts to which he, has been compelled.

19. The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is
ordained to be adopted so that no innocent person gets punishes The point of view prescribed by
Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the
Holy Prophet (peace be upon him):

(a) "Avoid enforcing Hudood as much as you can". (Ibn Majah).

(c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people from
punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone
rather than he should err in punishing someone (who is not guilty)." (Tirmidhi).

1312
20. We may also add that, as pointed out by one of learned counsel of the appellant, an illegality in the
conviction has also been committed by the learned trial Court in the instant case. The appellant was
charged for commission of offence under section 10(2) of the Ordinance, which falls under the category
of Ta'zir (penal punishment) and carries less sentence, however, the appellant has been convicted for
'Rajm', a Hadd punishment, without changing the charge. It is a basic principle of our procedural law
that while the charge can be altered at the time of recording conviction from a greater offence to that of
lesser offence, in circumstances the vice versa position is not permissible. Hence, on this score also Hadd
sentence awarded to the appellant is not maintainable and has to be set aside.

21. The upshot of the above discussion is that the prosecution has failed to prove its case against the
appellant beyond any reasonable doubt and consequently, for the reasons stated above, we allow this
appeal, set aside conviction and sentences of Mst. Zafran Bibi wife of Niamat Khan and acquit her of the
charge. She shall be released forthwith if not required in any other case. Resultantly the criminal
reference made for confirmation of the award of Hadd sentence is not confirmed and is answered in
negative.

M.B.A./76/FSC Appeal allowed.

1313
2006 P L C (C.S.) 49

[Federal Shariat Court]

Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman
Farrukh, JJ

Syed SHABBIR HUSSAIN KAZMI and others

Versus

GOVERNMENT OF PAKISTAN and others

Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/L, 7/L, 9/L of 1993;
decided on 10th October, 2005.

(a) Bonded Labour System (Abolition) Act (III of 1992)---

----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10,
11, 14, 15 & 18- Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.21 5, 6,
7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions

1314
of Islam---Validity---Held, impugned definitions in 5.2, Bonded Labour System (Abolition) Act,
1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded
labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these
were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding
the dignity of man in general and preservation/protection of the fundamental rights of working
class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to
the Injunctions of Islam as said provisions had been incorporated therein with the object of
abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject
and principles recorded---Federal Shariat Court, however, observed that the object for which the
Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court
provided guidelines for the purpose and directed that copy of the present judgment be forwarded
to the specified authorities.

The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory
dispensation of vital importance as it was intended to curb and put to irreversible end the
reprehensible institution of bonded labour not only in the brick kiln industry but also in other
sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle
industry, tanneries etc.

The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line
with directives of the two judgments ofthe Supreme Court. By purporting to challenge the vires
of the impugned provisions of the Act what the petitioners in the present case, really sought was
the effacement of the binding effect of the two judgments, which was not permissible in law.

The judgments of Supreme Court declaring the law on the subject could not be called in question
by a person or by a batch of persons though he/they might not be party to the judgments.

Supreme Court decision was binding on all persons though they were not party before Supreme
Court.

Even an obiter in a judgment by Supreme Court carries binding effect.

A perusal of the said judgments of the Supreme Court would show that these indeed
protected/upheld the following fundamental rights of the labourers:--

1315
(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

(vii) Freedom of trade, business or profession---Article 18.

Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by
unequivocal commandment.

In Islam a workman is not entitled to anything until his work be finished.

Forced labour is repugnant to Islam in the extreme.

How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is
conveyed by probably his last Hadith shortly before he left this world and met his Creator.

Even if the worker does not claim his rights, according to Islam the owner should be alive to his
rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he

1316
shall be held answerable before God on the Day of Judgment.

Naturally, the proprietor or the owner would like to extract as much work as possible from the
servant or worker. But Islam aims at expelling this idea out of his mind.

Islam has called exploitation of worker the gravest possible violation of human rights and
decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his
exploitation, in any form, for a single moment.

Thus Islam has formulated a social system based on the fundamental human rights and the
relationship between the owner and the worker is comprehensively covered by it. This system
favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of
an egalitarian system in which the rule of law prevails.

Contention of the petitioner that the workers employed in brick kiln performed their duties under
contract with the owners which was with reference to the practice of payment of advance amount
to them by way of peshgi, is wholly without force.

Islam has taken great care to ensure that the worker is not duped/lured into performance of
contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation
of the workers as the employer by handing over certain amount to the worker obtains assurance
from him that he would continue to work till such time that the services rendered by him do not
offset/liquidate the liability of said amount.

It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is
drawn specifying the terms and conditions of the contract with the result that the worker engaged
at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have
discharged the liability qua the advance amount. After extracting sufficient work from him, if
and when the worker approaches the employer for settlement of account, he is usually confronted
with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance
amount having been utilized by the worker, the employer conveniently hands over further
amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem.
There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of
intimidation to extract surplus work without payment of wages therefor.

1317
Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in
particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him),
quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is
strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi
system being vague and unconscionable, besides being exploitative in nature, is violative of the
Injunctions of Islam.

The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without
prior fixation of his wages.

Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is
postulated that the nature and extent of the job entrusted to the workers should be well-defined at
the time of the contract. The worker, on the completion of the job, is to be paid his wages
without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the
brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed
amount as his wages.

Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic
Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put
forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and
preservation/protection of the Fundamental rights of working class in the society in particular.

Likewise the impugned sections 5, 6, 7, 8 and 11 of the Act cannot be held to be repugnant to the
Injunctions of Islam, as these provisions have been incorporated therein with the object of
abolition of bonded labour in all its forms and manifestations.

Federal Shariat Court, however, observed that the object for which the Act was passed could not
be achieved so far. Almost every day reports about unlawful detention of labourers, working in
different brick kilns along with their family members, for extracting forced labour from them,
appear in the National press.

Perusal of the act would show that under section 9 the Provincial Government had been

1318
conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be
necessary to ensure that the provisions of the Act are properly enforced.

Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by
him have been held responsible for promotion of the welfare of the freed bonded labourer by
securing and protecting his economic interests.

Section 15 provides for constitution of Vigilance Committees at District level comprising of

elected representatives of the area, representatives of the District Administration, Bar
Associations, Press, recognized Social Services and Labour Departments of the Federal and
Provincial Governments.

It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has
taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the
brick kilt labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance
Committees have been formed anywhere in the country. This state of affairs is alarming, to say
the least. It has immensely distressed the Court.

It is for the Government functionaries to ensure the due and purposeful enforcement of the Act,
in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other
similar establishments, all over the country, is checked and comprehensively exterminated.

A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act,
1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance,
1968 are also attracted to such establishment. It is high time that all the brick kilns are duly
registered as factories to enable the Labour Inspector to pay regular visits to them and take
suitable action/measures, in accordance with the Labour Laws, to achieve the objective of
banishment of practice of forced labour from this industry.

As late as in 2004 Bonded Labours Research Forum, in collaboration with the Ministry of
Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out
assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick
kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable
job in preparing a paper after thorough study of the problem, suggesting ways and means of

1319
curbing the pernicious practice of bonded labour in brick kilns and other similar segments of
society. No action, so far, seems to have been taken on this report either. The statutory
functionaries must realize their responsibility of enforcement of the mechanism as provided by
the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are
achieved.

Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of
Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas
Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country.

Enforcement of Fundamental rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139;
PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer,
Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of
India and others AIR 1987 SC -179; National Bank of Pakistan v. Banking Tribunal and others
PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced
Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th
December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29
Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra,
Vol.6, P. 120

1320
(b) Constitution of Pakistan (1973)---

----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court

declaring the law on the subject cannot be called in question by a person or by a batch of persons
though he/they might not be party to the judgment; even an obiter in a judgment by Supreme
Court carries binding effect.

Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore
and others AIR 1985 SC 621;. Messrs Star Diamond Co. India v. Union of India and others AIR
1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and
M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref.

(c) Islamic jurisprudence-

----Dignity of labour in Islam.

28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6,
p.121 and Baihaqi al-Sunan al

1321
Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/1- of 1993 and 36/L, 37/1,
of 1992).

S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992).

Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993.

Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993).

Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G.
Balochistan (in Sh.P. No.9-L of 1993).

Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993).

Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P.
No.9-L of 1993).

1322
Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993).

Miss Asma Jahangir: Amicus Curiae.

Zafarullah Khan for Pakistan Institute of Labour Education and Research.

Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005.

JUDGMENT

SAEED-UR-REHMAN FARRUKH, J.---By this judgment we propose to dispose of the

following eight matters as common questions of law and facts arise therein:

Shariat Petition No.36-L of 1992.

(1) (Rana Saeed-uz-Zaman and others v. Government of Pakistan).

Shariat Petition No.37-L of 1992.

(2) (Niaz Ali and others v. Government of Pakistan).

Shariat Petition No.58-1 of 1992.

(3) (Ghulam Khan Bangash v. Federation of Pakistan).

1323
Shariat Petition No.6-L of 1993.

(4) (Haji Muhammad Amin and others v. Secretary, Ministry of Law).

Shariat Petition No. 7/L of 1993.

(5) (Mian M. Akram and others v. Secretary, Ministry of Law).

Shariat Petition No. 8-L of 1993.

(6) (Syed Shabbir Hussain and others v. Government of Pakistan).

Shariat Petition No.9-L of 1993

(7) (Gulfraz Ahmad and others v. Secretary, Ministry of Law, Government of Pakistan).

Shariat Petition No. 10-L of 1993.

(8) (Haji Muhammad Aslam and others v. Secretary, Ministry of Law).

2. Through the above Shariat Petitions, under Article 203-D of the Constitution of the Islamic
Republic of Pakistan, the petitioners who are brick kiln owners, have assailed various provisions
of the Bonded Labour System (Abolition) Act, 1992 (hereinafter called "the Act"), as being
repugnant to injunctions of Holy Quran and. Sunnah. Following declaration has been sought

1324
from this Court:--

"that the definitions of the `bonded debt', `bonded labour', `bonded labourer' and `bonded labour
system' 'may kindly be declared as repugnant to the Injunctions of Islam."

3. The impugned definitions are reproduced as under:--

(a) "advance (peshgi)" means an advance (peshgi), whether in cash or in kind, or partly in cash or
partly in kind, made by one person (hereinafter referred to as the creditor) to another persons
(hereinafter referred to as the debtor);

(b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been obtained, by a
bonded labourer under, or in pursuance of, the bonded labour system".

(c) "bonded labour" means any labour or service rendered under the bonded labour system;

(d) "bonded labourer" means a labourer who incurs, or has, or is presumed to have-incurred, a
bonded debt;

(e) "bonded labour system" means the system of forced, or pertly forced, labour under which a
debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the
effect that,--

(i) in consideration of an advance (peshgi) obtained by him or by any of the members of his
family [whether or not such advance (peshghi) is evidenced by any, document] and in
consideration of the interest, if any, due on such advance (peshgi), or

(ii) in pursuance of any customary or social obligation, or

1325
(iii) for any economic consideration received by him or by any of the members of his family;

he would-

(1) render, by himself or through any member of his family, or any person dependent on him,
labour or service to the creditor, or for the benefits of the creditor, for a specified period of for an
unspecified period, either without wages or for nominal wages, or

(2) forfeit the freedom of employment or adopting other means of livelihood for a specified
period or for an unspecified period, or

(3) forfeit the right to move freely from place to place, or

(4) forfeit the right to appropriate or sell at market value any of his property or product or his
labour or the labour of a member of his family or any person dependent on him,

and includes the system of forced or partly forced, labour under which a surety for a debtor
enters, or has or is presumed to have, entitled, into an agreement with the creditor to the effect
that in the event of the failure of the debtor, to repay the debt, he would render the bonded labour
on behalf of the debtor;

4. Besides, in these Shariat Petitions, some of the provisions of "the Act" i.e. sections 5, 6, 7, 8
and 11 have also been brought tinder challenge as being contrary to the Islamic Injunctions.
These sections read as under-

Section 5. Agreement custom; etc to be void.---Any custom or tradition or practice or any

contract, agreement or other instrument, whether entered into or executed before or after the
commencement of this Act, by virtue of which any person, or any member of his family, is

1326
required to do any work or render any service as a bonded labourer, shall be void and
inoperative.

Section 6. Liability to repay bonded debt to stand extinguished.--On the commencement of this
Act, every obligation of a bounded labour to repay any bonded debt, or such part of any bonded
debt as remains unsatisfied immediately before such commencement, shall stand extinguished.

(2) After the commencement of this Act, no suit or other proceedings shall lie in any Civil Court,
Tribunal or before any other authority for the recovery of any bonded debt, or any part thereof.

(3) Every decree or order for the recovery of bonded debt, passed before the commencement of
this Act and not fully satisfied before such commencement, shall be deemed, on such
commencement, to have been fully satisfied.

(4) Where, before the commencement of this Act, possession of any property belonging to a
bonded labourer or a member of his family was forcibly taken by any creditor for the recovery of
any bonded debt, such property shall be restored, within ninety days of such commencement, to
the possession o1' the person from whom it was seized.

(5) Every attachment made before the commencement of this Act for the recovery of any bonded
debt shall, on such commencement, stand vacated; and, where, in pursuance of such attachment,
any movable property of the bonded labourer was seized and removed from his custody and kept
in the custody of any Court, Tribunal or other authority pending sale thereof, such movable
property shall be restored, within ninety days of such commencement, to the possession of the
bonded labourer:

Provided that, where any attached property was sold before the commencement of this Act, in
execution of a decree or order for the recovery of a bonded debt, such sale shall not be affected
by any provision of this Act.

(6) Subject to the proviso to subsection (5), any sale, transfer or assignment of any property of a
bonded labourer made in any manner whatsoever before the commencement of this Act for

1327
recovery of bonded debt shall not be deemed to have created or transferred any right, or interest
in or encumbrance upon any such property and such property shall be restored, within ninety
days of such commencement, to the possession of the bonded labourer.

(7) If restoration of the possession of any property referred to in subsection (4) or subsection (5)
or subsection (6) is not made within ninety days from the commencement of this Act, the
aggrieved person may, within such time as may be prescribed, apply to the prescribed authority
for the restoration of the possession of such property and the prescribed authority may, after
giving the creditor a reasonable opportunity of being heard, direct the creditor to restore to the
applicant the possession of the said property within such time as may be specified in the order.

(8) An order made by any prescribed authority under sub-section (7) shall be deemed to be an
order made by a Civil Court and may be executed by the Court of the lowest pecuniary
jurisdiction within the local limits of whose jurisdiction of the creditor voluntarily resides or
carries on business or personally works for gain.

(9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour
system, including a suit or proceeding for the recovery of any advance (peshgi) made to a
bonded labourer, is pending at the commencement of this Act, such suit or other proceedings
shall, on such commencement, stand dismissed.

(10) On the commencement of this Act, every bonded labourer who has been detained in civil
prison, whether before or after judgment, shall be released from detention forthwith.

Section 7. Property of bonded labourer to be freed from mortgage, etc.---(1) All property
vested in a bonded labourer which, was immediately before the commencement of this
Act, under any mortgage, charge, lien or other encumbrance in connection with any
bonded debt shall, insofar as it is relatable to the bonded debt, stand freed and discharged
from such mortgage, charge, lien or other encumbrance; and where any such property
was, immediately before the commencement of this Act, in the possession of the
mortgagee or the holder of the charge, lien or encumbrance, such property shall, except
where it was subject to any other charge, on such commencement, be restored to the
possession of the bonded labourer.

1328
(2) If any delay is made in restoring any property referred to in subsection (1) to the possession
of the bonded labourer, such labourer, shall be entitled, on and from the date of such
commencement, to recover from the mortgagee or holder of the lien, charge or encumbrance,
such mesne profits as may be determined by the Civil Court of the lowest pecuniary
jurisdiction within the local limits of whose jurisdiction such property is situated.

Section 8. Creditor not to accept payment against extinguished debt.---(1) No creditor shall
accept any payment against any bounded debt which has been extinguished or deemed to have
been extinguished or fully satisfied by virtue of the provisions of this Act.

(2) Whoever contravenes the provision of subsection (1), shall be punishable with
imprisonment for a term which may extend to three years, or with fine which shall not be less
than fifteen thousand rupees, or with both.

(3) The Court convicting any person under subsection (2) may, in addition to the penalties
which may be imposed under that subsection, direct such person to deposit in Court, the
amount accepted in contravention of the provisions of subsection (1), within such period as
may be specified in the order, for being refunded to the bonded labourer.

Section 11. Punishment for enforcement of bonded labour.---Whoever, after the

commencement of this Act compels any person to render any bonded labour shall be
punishable with imprisonment for a terms which shall not be less than two years nor more than
five years, or with fine which shall not be less than fifty thousand rupees, or with both.

5. The facts, in brief, necessary to understand the genesis of these" cases are as follows. Two
complaints, one by the labourers and other by the owners of some brick kilns, moved before
Supreme Court of Pakistan, were taken up for adjudication by it in exercise of its powers under
Article 184 of the Constitution of Islamic Republic of Pakistan. The complaint made by the
labourers was that the owners were pressing them to work at their brick Kilns against Peshgis
(advances) and on their refusal they were being maltreated. On the other hand the grievance of
the brick kiln owners was that the labourers, after having received substantial amounts in
advance with the - undertaking to work at their respective brick kilns, had ceased to do so
causing, immense loss to them.

1329
All concerned were heard at considerable length by the Supreme Court. Ultimately, a broad
agreement was reached, leading to the following interim order dated 17-9-1988:--

(i) Peshgi system to be discontinued forthwith except that up-to one week' estimated wages
may be paid by the owner to the worker as advance against proper receipt.

(ii) The payment shall be made to the worker concerned or the head of the household, direct in
cash. The receipt shall be issued in duplicate-one to be retained by each.

(iii) The institution of "Jamadarni" is finished and he is excluded for all limes. No payment for
others shall be made to him nor shall it be acknowledged in any forum, as due in any form, if
claimed to have been made through him.

(iv) The institution of "Jamadarni" is likewise finished altogether.

(v) Every case registered anywhere in Punjab by the police, which deals with directly or
indirectly, any of the constituents of the practice of bonded labour in the brick-kiln industry,
shall be reported to the Advocate-General, with a copy of the F.I.R. within 24 hours. The
Advocate-General shall submit a photocopy of the F.I.R. and other documents, if any, with his
own comments, within further 24 hours, to the Supreme Court.

(vi) Past Pesh is for the time being shall not be treated as void and unrecoverable. However,
they shall not at all be recovered in any form through police or through the employment of the
so-called "labour" under the "peshgi recovery arrangement" or through any coercive measure;
and further orders shall be made by the Court in this behalf including the request for utilization
of the Zakat fund for the discharge of so-called bad debts of Peshgi. The question, whether
recoveries would be abolished altogether and whether Legislation shall be made on the lines as
done in India, is deferred for the time being, for six months. This aspect shall be reviewed in
the light of the working of these arrangements to which all concerned have agreed if approved
by Court.

(vii) Filing of Habeas Corpus petitions shall not be stopped. However, all concerned have

1330
agreed that if' the arrangement agreed upon or put into practice the need for filing.
false/genuine Habeas Corpus petitions would not arise. The Advocate-General shall however,
appear personally in every Habeas Corpus petition whether in the High Court or in the
Supreme Court.

(viii) The owners shall not directly ask or pressurize any labourer for employing the
womenfolk or children. However, if the latter do so at their own risk and responsibility, no
complaint shall then he made against the Bhatta owners in this behalf. The head of the household
who employs any of their womenfolk against her wishes and or children, might in proper cases,
be proceeded against. The payment made to the head of the household including that of his
family members made, female, shall be in the name of the head of the household. Separate
recipients may not be mentioned in the formal registers and receipts.

(ix) No deduction whatsoever shall be made from wages; or the number of bricks, if, they are
more than 1000 shall be counted as 1000 in any garb. The damage/loss to the bricks suffered on
account of rain shall be wholly borne by the owner. Similarly, no other deduction including that
of Past Peshgi, loans including those for marriages or for medical treatment etc. shall be made
from the wages.

(x) Payment made by the owner to the labourer in addition to the wages whether in the form of
formal loan or otherwise for marriages and other ceremonies or for medicines or other purposes
shall not be recoverable from the labourer. If genuinely paid/spent they shall be treated as for
good will or donation.

(xi) Other arrangements that may be specified at the final stage in the final Judgment. "

6. The matter was disposed of on 15-3-1989 with the following salient directions:--

(i) Past unreturned Peshgis (advances) given to the labourers would be treated outstanding
against them.

(ii) Peshgi system in future would be discontinued.

1331
(iii) In future payment of wages would be made to the labourers on daily, weekly, fortnightly and
monthly basis as agreed upon between the parties.

(iv) Jamadari system is to cease forthwith.

(v) The owners shall not be directly or indirectly ask or pressurize any labourer for employing
womenfolk or children.

This judgments is reported as "In The Matter of Enforcement of Fundamental Rights Re: Bonded
Labour In Brick Kiln Industry" 1989 SCMR 139).

In 1989 another case pertaining to brick kiln industry qua dispute between labourers and the
brick kiln owners came up before Supreme Court of Pakistan in a case titled "Darshan Masih
alias Rehmatay and others v. The State".' heir Lordship took great pains in resolving it. The
hearing of the case went on for considerable period, Certain suggestions/recommendations were
made by different Committees constituted by the Court.

This case was decided on 15-3-1989 with the directions, inter alia, that the important elements in
the Fundamental Rights regarding prohibition of forced labour, dignity of man, freedom of
movement, freedom of trade, business or profession etc. should be put in consolidated form. It
was observed that "it might be necessary to define the expression "forced labour" with
illustrations of its different forms; in such a manner, so as to minimize any confusion about its
real purport as also the resultant unproductive litigation. For the same purpose the other
important elements in these Fundamental Rights, may be collected together and put in a self-
contained Code. It might cover all aspects of human dignity, deprivations and misery, including
those rights in this behalf which are ensured, in addition, as basic human rights in Islam.---This
comprehensive law should deal with the compulsory education of the classes concerned for
making them aware of their rights, the detection of the infringement thereof as the duty of the
State; and providing remedial mechanism also at the instance of the State whenever the will to
assert or exercise them is lacking on the part of a citizen".----Pages 545, 546 of the report--(PLD
1990 SC 513).

1332
The matter was ultimately disposed of in terms of the agreed order dated 15-3-1989 (reproduced
hereinabove in para. 6 ibid). Thus the peshgi system and Jamadari system were done away with
for all times to come by Hon'ble Supreme Court.

7. Pursuant to the above two land-mark judgments of the apex Court of the country, the
legislature passed the Bonded Labour System (Abolition) Act, 1992, some of the provisions
whereof (noted in para. 4 ibid) have now been brought under challenge by the brick kiln owners
through these Shariat Petitions.

8. It is manifest that the above two judgments of the Supreme Court of Pakistan, even if not to be
equated with a "judgment in rem," are authoritative on account of their Constitutional status and
as such conclusive of the matters/issues adjudicated upon.

We closely questioned learned counsel for the petitioners. in all these petitions, to demonstrate, if
possible, that the impugned provisions of "the Act" were violative of the directions /guidelines
given by Supreme Court in the above judgment. He failed to do so. We are fully satisfied that
"the Act" was passed by the legislature strictly in line with directives of the Supreme Court. By
purporting to challenge the vires of the impugned provisions of "the Act" what the petitioners
really seek is the effacement of the binding effect of the two judgments, which is not permissible
in law.

The judgments of Supreme Court declaring the law on the subject cannot be called in question by
a person or by a batch of persons though he/they might not be party to the judgment. We may
refer with some advantage to two decisions from Indian jurisdiction i.e. "M/s Shenoy and Co.,
Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others" (AIR 1985
Supreme Court 621) and "M/s Star Diamond Co. India versus Union of India and others" (AIR
1987 Supreme Court 179), wherein it was held that Supreme Court decision was binding on all
persons though they were not party before l Supreme Court.

Even an obiter in a judgment by Supreme Court carries bindings effect. See "National Bank of
Pakistan v. Banking Tribunal and others" (PLD 1994 Karachi 358 at 362) and M.Z.Khan v.
Aziz-ud-Din Ahmad Khan" (2004 YLR 84).

9. In our view "the Act", as a whole, is a beneficial statutory dispensation of vital importance as

1333
it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not
only in the brick kiln industry but also in other sectors in the country like haris tenants-at-will,
labourers in mining industry, glass bangle industry, tanneries etc.

10. Mr. Irshad lhmad Qureshi, learned counsel for the petitioners tried to submit that the above
judgments were delivered by the Supreme Court of Pakistan under Article 184 of the
Constitution of Islamic Republic of Pakistan to ensure that the fundamental rights of the parties
to the dispute i.e. brick kilns owners on the one hand and the labourers working in the said brick
kilns on the other were protected and their denial/violation was checked. The main thrust of his
argument was that the Supreme Court did not consider the matter in the light of Islamic
Injunctions on the subject and as such the petitioners were within their rights to assail the
relevant provisions of "the Act" i.e. Bonded Labour System. (Abolition) Act, 1992 as being
violative of Holy Quran and Sunnah.

11. While arguing on merits of these petitions, Mr. Irshad Ahmed Qureshi, learned counsel for
the petitioners tried to demonstrate that the Peshgi system, prevalent in the brick kilns, was not
against the Injunctions of Islam. According to him, the labourers used to perform their duties
pursuant to lawful agreements between the parties, which stood sanctified by Injunctions of
Islam. In this view of the matter the impugned provisions of "the Act" regarding abolition of
Peshgi system and branding the labourers working in the brick kilns as "bonded labour" were
liable to be declared as contrary to mandate of Holy Quran and Sunnah.

In support of his submissions learned counsel relied upon the following Verse from the Holy
Quran:--

O . ye who believe, fulfil your undertakings. (5: 1)

Besides, learned counsel also relied upon the following Hadith of the Holy Prophet (peace be
upon him).

1334
He, who is devoid of honesty does not possess faith and there is no Deen for one who does not
fulfil his contract (promise).

It was argued that the Peshgi amounts were being given to the workers in the brick kiln under
valid and lawful agreements and therefore, there was no justification available in law for
Legislature to abolish the Peshgi system vide section 4 of "the Act" "Jamadari system" was also
necessary to be kept alive so as to enable the brick kiln owners to keep watch over the
performance of the workers with regard to the job of brick making entrusted to them.

12. On the other hand both learned Standing counsel for the Federal Government and Miss Asma
Jahangir Advocate, learned amicus curiae vehemently opposed these petitions both on the
ground of maintainability as well as on merits.

13. A perusal of the judgments of the Supreme Court (supra) would show that these indeed
protected/upheld the following fundamental rights of the labourers:

(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

1335
(vi) Freedom of trade, business or profession---Article 18.

14. On 10th June, 1930 the General Conference of the International Labour Organization
convened a conference at Geneva and adopted certain proposals to take the form of International
Convention about Forced or Compulsory Labour. Pakistan ratified this Convention known as
"29th Forced Labour Convention, 1930" on 23-12-1957. Two Articles of this convention are
relevant in the context of the controversy involved in these cases. These are reproduced as
under:--

"Article 4.

1. The competent authority shall not impose or permit the imposition of forced or compulsory
labour for the benefit of private individuals, companies or associations.

2. Where such forced or compulsory labour for the benefit of private individuals, companies or
associations exists at the date on which a Member's ratification of this Convention is registered
by the Director-General of the International Labour Office, the Member shall completely
suppress such forced or compulsory labour from the date on which this Convention comes into
force for that Member.

Article 5.

No concession granted to private individuals, companies or associations shall involve any form
of forced or compulsory labour for the production or the collection of products which such
private individuals, companies or associations utilize or in which they trade. "

15. Some of the human rights and freedoms were compendiously recounted in the Universal
Declaration of Human Rights, which was proclaimed by United Nations on 10th December,
1948. It sought to uphold the following rights of human beings-

1336
(1) Article 3. Every one has the right to life, liberty and security of person.

(2) Article 4. No one shall be held for slavery or for servitude.

(3) Article 5. No one shall be subjected to torture or cruel, inhuman or degrading treatment.

The emphasis of the above Charter of the United Nations was largely due to the abuse of power
of which totalitarian regimes before the second world war were guilty. It was intended to enable
the individual to claim that he was a free person and entitled to secure his free development as
such. The right to work, the right to a fair wage or leisure to which a labourer could lay claim
were declared to be inviolable.

16. As against the above, significantly, Islam had fifteen centuries ago etched out in detail the
fundamental rights of the mankind by unequivocal commandments. In the context of the
controversy involved in these Shariat petitions, we shall refer to the rights of the labourers
/workers only, in the sequel.

17. To begin with, there is Hadith of Holy Prophet (peace by upon him) for discharging the
financial obligations.

(pay every rightful claimant his dues).

The Holy Quran, in relation to the labour of Prophet Moses at Prophet Shoaib's house, has
succinctly discussed an event. The Prophet Shoaib said:--

1337
(And I do not wish to put you unnecessarily hard labour. By the grace of God, you will find me
straightforward in these matters), (28:27)

The Holy Prophet (peace be upon him) whenever he spoke of the master-worker relationship
used to say:--

"Those who work for you are your brothers: God has ordained them to be your subordinates."

18. In Islam a workman is not entitled to any thing until his work be H finished. The Jurists have
explained this issue by giving an example of brick maker. Al Murghinani has said:--

"If a person hires another to make him a certain quantity of bricks. According to Imam
Abu Haneefa he is entitled to his hire when he sets up the bricks. The two disciples held
that he is not entitled to his hire until he collects the brick together and build them up
because it is this which completes his work, since bricks are not secured from injury until
they be so collected and built up---"

1338
19. Forced labour is repugnant to Islam in the extreme. The Holy Prophet (peace by upon him)
has mentioned this in one of his Ahadiths:--

"Allah said, I will be an opponent to three types of people on the Day of Resurrection:-

(1) One who makes a covenant in My Name, but proves treacherous;

(2) One who sells a free person and eats his price; and

(3) One who employs a labourer and takes full work from him but does not pay him for his
labour. " (The underlining is ours).

This important Hadith was expounded by Allama Ibn-al-Hajar Asqualani as follows:--

"By taking work from someone without payment to him his legitimate wages is
equivalent to pressing a free man into slavery and to produce goods from his labours,
since when he has reaped the benefits without offering compensation, he has purchased
the labourer and in effect has regarded him as a slave whom he has purchased

1339
20. How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is
conveyed by probably his last Hadith shortly before he left this world and met his Creator. His
words, according to Hazrat Ali, were;

(Always keep prayers in your mind and of the rights of the people who are your dependents).

There is another Hadith worth quoting:--

"Reported by Abi-Zar from the Holy Prophet to have been said that: These (servants) are
actually your brothers. Allah Almighty has only extended your authority over them and
subjected them to work under your command (if the situation is that), you should provide
the same food which you yourself eat and provide the same clothes which you yourself
wear and never over-burden them by compelling to do a work beyond their capacity if
you entrust such type of work to them then personally assist them in doing that job,
(Sunan Al-Jami'a Tirmizi, Chapter 29, Hadees No. 1945 Publication, Egypt.

21. Even if the worker does not claim his rights, according to Islam the owner should be alive to
his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which
he shall be held answerable before God on the Day of Judgment.

1340
22. Naturally, the proprietor or the owner would like to extract as much work as possible from
the servant or worker. But Islam aims at expelling this idea out of his mind. Says the Holy
Prophet (peace be upon him):

"Those who do wrong with their servants cannot enter paradise."

"When a person fulfilled rights of Allah and rights of his servants he got two rewards."

23. Islam has called exploitation of worker the gravest possible violation of human rights and.
decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his
exploitation, in any form, for a single moment. The Holy Prophet (peace be upon him) said:

"The rich commits crime by defraying payment."

24. Thus Islam has formulated a social system based on the fundamental human rights and the
relationship between the owner and the worker is comprehensively covered by it. This system

1341
favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of
an egalitarian system in which the rule of law prevails.

25. It is necessary at this stage to deal with the contention of the learned counsel for the
petitioner that the workers employed in brick kiln performed their duties under contract with the
owners. This was with O reference to the practice of payment of advance amount to them by way
of p e s hgi. This contention is wholly without force.

26. The Holy Prophet (peace be upon him) has said:

"A man shall honour his contracts together with all the binding conditions provided that
the conditions are rightful and according to the Code of Islam. (The underlining is ours).

27. Islam has taken great care to ensure that the worker is not duped/lured into performance of
contract which is fraudulent/unconscionable /vague. Such a course of action leads to exploitation
of the workers as the employer by handing over certain amount to the worker obtains assurance
from him that he would continue to work till such time that the services rendered by him do not
offset/liquidate the liability of said amount.

It is common knowledge that almost all the workers in the brick kiln are illiterate; no deed is
drawn specifying the terms and conditions of the contract with the result that the worker engaged
at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have
discharged the liability qua the advance amount. After extracting sufficient work from him, if
and when the worker approaches the employer for settlement of account, he is usually confronted
with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance
amount having been utilized by the worker, the employer conveniently hands over further
amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem.
There cannot be worse form of exploitative bondage of labour. The advance (Peshi) is a tool of
intimidation to extract surplus work without payment of wages therefor.

1342
28. Islam is the greatest emancipator of mankind and zealously Q upholds the dignity of worker
in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon
him), quoted above would prove that exploitation of down-trodden and toiling labourer is strictly
forbidden so that he is saved from eking out his livelihood in abject servitude. We are absolutely
clear in our mind that the Peshgi system being vague and unconscionable, besides being
exploitative in nature, is violative of the Injunctions of Islam.

29. It would not be out of place to humbly cite two important Ahadiths of the Holy Prophet
(peace be upon him), on the subject.

"Pay the worker his wages before his sweat dries." (Baihaqi Vol. 6, page 121), Mishkat
Bab-al-Ijara, page 45.

According to Hazrat Abu Said Khudri, the Holy Prophet (peace be upon him) had interdicted the
employment of a labourer without prior fixation of his wages. (Baihagi Al-Sunan al Kubra, Vol.
6, page 120).

"The Holy Prophet (peace be upon him) prohibited hiring of a person until his wages were
fixed".

Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is
postulated that the nature and extent of the job entrusted to the workers should be well-defined at
the time of the contract. The worker, on the completion of the job, is to be paid his S wages

1343
without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the
brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed
amount as his wages.

30. For what has been said above we are clearly of the view that the impugned definition in "the
Act" are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to
achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in
general and preservation/protection of the Fundamental rights of working class in the society in
particular.

Likewise the impugned sections 5, 6, 7, 8 and 11 of "the Act" cannot be held to be repugnant to
the Injunctions of Islam, in the light of what has been stated above as these provisions have been
incorporated therein with the object of abolition of bonded labour in all its forms and
manifestations.

31. Before parting with the judgment, we are constrained-to observe with concern that the object
for which "the Act" was passed could not be achieved so far., Almost every day reports about
unlawful detention of labourers, working in different brick kilns along with their family
members, for extracting forced labour from them, appear in the National press.

In Daily "Nawa-e-Waqt" Lahore, dated 2-9-2005 there was a report about order passed by
Lahore High Court whereunder twenty labourers were set at liberty after their recovery from the
unlawful custody of the brick kiln owner for extracting forced labour. In the same National Daily
dated 10th September, 2005 there was another report about twenty six brick kiln workers, who
were recovered from a brick kiln near Gujranwala Bypass, through bailiff of the Court and set at
liberty by the Lahore High Court. Similar news about release of 17 bonded brick kiln labourers
under the order of Sessions Judge, Peshawar appeared in daily "Dawn" dated 8th October, 2005.

32. Perusal of "the Act" would show that under section 9 the Provincial Government had been
conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be
necessary to ensure that the provisions of "the Act" are properly enforced.

Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by
him have been held responsible for promotion of the welfare of the freed bonded labourer by

1344
securing and protecting his economic interests.

Section 15 provides for constitution of Vigilance Committees at District level comprising of

elected representatives of the area, representatives of the District Administration, Bar
Associations, Press, recognized Social Services and Labour Departments of the Federal and
Provincial Governments.

It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has
taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the
brick kiln labourers by many owners, in their respective jurisdictions. Likewise, no vigilance
committees have been formed anywhere in the country. This state of affairs is alarming, to say
the least. It has immensely distressed us.

It is for the Government functionaries to ensure the due and purposeful enforcement of "the Act",
in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other
similar establishments, all over the country, is checked and comprehensively exterminated.

33. It will not be out of place to mention, at this stage, that a brick kiln squarely falls within the
purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance,
1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such
establishment. It is high time that all the brick kilns are duly registered as factories to enable the
Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance
with the Labour Laws, to achieve the objective of banishment of practice of forced labour from
this industry.

34. As late as in 2004 Bonded Labours Research Forum, in V collaboration with the Ministry of
Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out
assessment/ study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick
kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable
job in preparing a paper after thorough study of the problem, suggesting ways and means of
curbing the pernicious practice of bonded labour in brick kilns and other similar segments of
society. No action, so far, seems to have been taken on this report either. The statutory
functionaries must realize their responsibility of enforcement of the mechanism as provided by
"the Act" i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results
are achieved.

1345
35. We direct that a copy of this Judgment be forwarded to (i) Ministry of Law, Justice and
Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government
of Pakistan, as well as to all the Provincial Governments in the Country.

36. With the above observations/directions, these petitions are dismissed as being not
maintainable as well as on merit.

M.B.A./141/FSC Petitions dismissed.

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P L D 2006 Federal Shariat Court 1

Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman
Farrukh, JJ

Syed SHABBIR HUSSAIN KAZMI and others---Petitioners

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/1-, 7/L, 9/L of 1993;
decided on 10th October, 2005.

(a) Bonded Labour System (Abolition) Act (III of 1992)---

----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10,
11, 14, 15 & 18---Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.2, 5,
6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to
Injunctions of Islam---Validity---Held, impugned definitions in S.2, Bonded Labour System
(Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded
labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject;
on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and
Sunnah of upholding the dignity of man in general and preservation/protection of the
fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of
the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated
therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic
Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed
that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not
be achieved so far---Court provided guidelines for the purpose and directed that copy of the
present judgment be forwarded to the specified authorities.

1347
The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory
dispensation of vital importance as it was intended to curb and put to irreversible end the
reprehensible institution of bonded labour not only in the brick kiln industry but also in other
sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle
industry, tanneries etc.

The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line
with directives of the two judgments of the Supreme Court. By purporting to challenge the vires
of the impugned provisions of the Act what the petitioners in the present case, really sought was
the effacement of the binding effect of the two judgments, which was not permissible in law.

The judgments of Supreme Court declaring the law on the subject could not be called in question
by a person or by a batch of persons though he/they might not be party to the judgments.

Supreme Court decision was binding on all persons though they were not party before Supreme
Court.

Even an obiter in a judgment by Supreme Court carries binding effect.

A perusal of the said judgments of the Supreme Court would show that these indeed
protected/upheld the following fundamental rights of the labourers:--

(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

1348
(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

(vii) Freedom of trade, business or profession---Article 18.

Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by
unequivocal commandment.

In Islam a workman is not entitled to anything until his work be finished.

Forced labour is repugnant to Islam in the extreme.

How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is
conveyed by probably his last Hadith shortly before he left this world and met his Creator.

Even if the worker does not claim his rights, according to Islam the owner should be alive to his
rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he
shall be held answerable before God on the Day of Judgment.

Naturally, the proprietor or the owner would like to extract as much work as possible from the
servant or worker. But Islam aims at expelling this idea out of his mind.

Islam has called exploitation of worker the gravest possible violation of human rights and
decency; it has also laid down, guidelines for prevention thereof. It cannot tolerate his
exploitation, in any form, for a single moment.

1349
Thus Islam has formulated a social system based on the fundamental human rights and the
relationship between the owner and the worker is comprehensively covered by it. This system
favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of
an egalitarian system in which the rule of law prevails.

Contention of the petitioner that the workers employed in brick kiln performed their duties under
contract with the owners which was with reference to the practice of payment of advance amount
to them by way of peshgi, is wholly without force.

Islam has taken great care to ensure that the worker is not duped/lured into performance of
contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation
of the workers as the employer by handing over certain amount to the worker obtains assurance
from him that he would continue to work till such time that the services rendered by him do not
offset/liquidate the liability of said amount.

It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is
drawn specifying the terms and conditions of the contract with the result that the worker engaged
at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have
discharged the liability qua the advance amount. After extracting sufficient work from him, if
and when the worker approaches the employer for settlement of account, he is usually confronted
with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance
amount having been utilized by the worker, the employer conveniently hands over further
amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem.
There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of
intimidation to extract surplus work without payment of wages therefor.

Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in
particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him),
quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is
strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi
system being vague and unconscionable, besides being exploitative in nature, is violative of the
Injunctions of Islam.

The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without
prior fixation of his wages.

1350
Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is
postulated that the nature and extent of the job entrusted to the workers should be well-defined at
the time of the contract. The worker, on the completion of the job, is to be paid his wages
without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the
brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed
amount as his wages.

Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic
Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put
forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and
preservation/protection of the Fundamental rights of working class in the society in particular.

Likewise the impugned sections 5, 6, 7, 8 and II of the Act cannot be held to be repugnant to the
Injunctions of Islam, as these provisions have been incorporated therein with the object of
abolition of bonded labour in all its forms and manifestations.

Federal Shariat Court, however, observed that the object for which the Act was passed could not
be achieved so far. Almost every day reports about unlawful detention of labourers, working in
different brick kilns along with their family members, for extracting forced labour from them,
appear in the National press.

Perusal of the act would show that under section 9 the Provincial Government had been
conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be
necessary to ensure that the provisions of the Act are properly enforced.

Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by
him have been held responsible for promotion of the welfare of the freed bonded labourer by
securing and protecting his economic interests.

Section 15 provides for constitution of Vigilance Committees at District level comprising of

elected representatives of the area, representatives of the District Administration, Bar

1351
Associations, Press, recognized Social Services and Labour Departments of the Federal and
Provincial Governments.

It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has
taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the
brick kiln labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance
Committees have been formed anywhere in the country. This state of affairs is alarming, to say
the least. It has immensely distressed the Court.

It is for the Government functionaries to ensure the due and purposeful enforcement of the Act,
in its letter, and spirit, so that the menace of forced labour, rampant in brick kilns, and other
similar establishments, all over the country, is checked and comprehensively exterminated.

A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act,
1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance,
1968 are also attracted to such establishment. It is high time that all the brick kilns are duly
registered as factories to enable the Labour Inspector to pay regular visits to them and take
suitable action/measures, in accordance with the Labour Laws, to achieve the objective of
banishment of practice of forced labour from this industry.

As late as in 2004 Bonded Labours Research Forum; in collaboration with the Ministry of
Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out
assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick
kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable
job in preparing a paper after thorough study of the problem, suggesting ways and means of
curbing the pernicious practice of bonded labour in brick kilns and other similar segments of
society. No action, so far, seems to have been taken on this report either. The statutory
functionaries must realize their responsibility of enforcement of the mechanism as provided by
the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are
achieved.

Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of
Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas
Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country.

1352
Enforcement of Fundamental Rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139;
PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer,
Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of
India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others
PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced
Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th
December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29
Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra,
Vol.6, P. 120

(b) Constitution of Pakistan (1973)---

----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court

declaring the law on the subject cannot be called in question by a person or by a batch of persons
though he/they might not be party to the judgment; even an obiter in a judgment by Supreme
Court carries binding effect.

Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore
and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR
1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and
M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref.

(c) Islamic jurisprudence—

1353
----Dignity of labour in Islam.

28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6,
p.121 and Baihaqi al-Sunan al Kubra, Vol. P. 120

Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/L of 1993 and 36/L, 37/L of
1992).

S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992). Irshad Ahmad Qureshi and Malik
Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993.

Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993).

Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G.
Balochistan (in Sh.P. No.9-L of 1993).

1354
Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993).

Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P.
No.9-L of 1993).

Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993).

Miss Asma Jahangir: Amicus Curiae.

Zafarullah Khan for Pakistan Institute of Labour Education and Research.

Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005.

JUDGMENT

SAEED-UR-REHMAN FARRUKH, J.---By this judgment we propose to dispose of the

following eight matters as common questions of law and facts arise therein:

Shariat Petition No.36-L of 1992.

(1) (Rana Saeed-uz-Zaman and others v. Government of Pakistan).

Shariat Petition No.37-L of 1992.

1355
(2) (Niaz Ali and others v. Government of Pakistan).

Shariat Petition No.58-1 of 1992.

(3) (Ghulam Khan Bangash v. Federation of Pakistan).

Shariat Petition No.6-L of 1993.

(4) (Haji Muhammad Amin and others v. Secretary, Ministry of Law).

Shariat Petition No.7/L of 1993.

(5) (Mian M. Akram and others v. Secretary, Ministry of Law).

Shariat Petition No.8-L of 1993.

(6) (Syed Shabbir Hussain and others v. Government of Pakistan).

Shariat Petition No.9-L of 1993

(7) (Gulfraz Ahmad and others v. Secretary, Ministry of Law, Government of Pakistan).

Shariat Petition No. 10-L of 1993.

1356
(8) (Haji Muhammad Aslam and others v. Secretary, Ministry of Law).

2. Through the above Shariat Petitions, under Article 203-D of the Constitution of the Islamic
Republic of Pakistan, the petitioners who are brick kiln owners, have assailed various provisions
of the Bonded Labour System (Abolition) Act, 1992 (hereinafter called "the Act"), as being
repugnant to injunctions of Holy Quran and Sunnah. Following declaration has been sought from
this Court:--

"that the definitions of the `bonded debt', 'bonded labour', 'bonded labourer' and 'bonded
labour system' may kindly be declared as repugnant to the Injunctions of Islam."

3. The impugned definitions are reproduced as under:--

(a) "advance (peshgi)" means an advance (peshgi), whether m cash or in kind, or partly in cash or
partly in kind, made by one person (hereinafter referred to as, the creditor) to another' persons
(hereinafter referred to as the debtor);

(b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been obtained, by a
bonded labourer under, or in pursuance of, the bonded labour system".

(c) "bonded labour" means any labour or service rendered under the bonded labour system;

(d) "bonded labourer" means 'a labourer who incurs, or has, or is presumed to have, incurred, a
bonded debt;

(e) "bonded labour system" means the system of forced, or partly forced, labour under which a
debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the
effect that,--

1357
(i) in consideration of an advance (peshgi) obtained by him or by any of the members of his
family [whether or not such advance (peshghi) is evidenced by any, document] and in
consideration of the interest, if any, due on such advance (peshgi), or

(ii) in pursuance of any customary or social obligation, or

(iii) for any economic consideration received by him or by any of the members of his family;

he would—

(1) render, by himself or through any member of his family, or any person dependent on him,
labour or service to the creditor, or for the benefits of the creditor, for a specified period of for an
unspecified period, either without wages or for nominal wages, or

(2) forfeit the freedom of employment or adopting other means of livelihood for a specified
period or for an unspecified period, or

(3) forfeit the right to move freely from place to place, or

(4) forfeit the right to appropriate or sell at market value any of his property or product or his
labour or the labour of a member of his family or any person dependent on him,

and includes the system of forced or partly forced, labour under

1358
which a surety for a debtor enters, or has or is presumed to have, entitled, into an agreement with
the creditor to the effect that in the event of the failure of the debtor, to repay the debt, he would
render the bonded labour on behalf of the debtor;

4. Besides, in these Shariat Petitions, some of the provisions of "the Act" i.e. sections 5, 6, 7, 8
and 11 have also been brought under challenge as being contrary to the Islamic Injunctions.
These sections read as under:--

Section 5. Agreement custom, etc., to be void.---Any custom or tradition or practice or any

contract, agreement or other instrument, whether entered into or executed before or after the
commencement of this Act, by virtue of which any person, or any member of his family, is
required to do any work or render any service as a bonded labourer, shall be void and
inoperative.

Section 6. Liability to repay bonded debt to stand extinguished.

(1) On the commencement of this Act, every obligation of a bounded labour to repay any bonded
debt, or such part of any bonded debt as remains unsatisfied immediately before such
commencement, shall stand extinguished.

(2) After the commencement of this Act, no suit or other proceedings shall lie in any Civil Court,
Tribunal or before any other authority for the recovery of any bonded debt or any part thereof.

(3) Every decree or order for the recovery of bonded debt, passed before the commencement of
this Act and not fully satisfied before such commencement, shall be deemed, on such
commencement, to have been fully satisfied.

(4) Where, before the commencement of this Act, possession of any property belonging to a
bonded labourer or a member of his family was forcibly taken by any creditor for the recovery of
any bonded debt, such property shall be restored, within ninety days of such commencement, to
the possession of the person from whom it was seized.

1359
(5) Every attachment made before the commencement of this Act for the recovery of .any
bonded debt shall, on such commencement, stand vacated; and, where, in pursuance of such
attachment, any movable property of the bonded labourer was seized and removed from his
custody and kept in the custody of any Court, Tribunal or other authority pending sale thereof,
such movable property shall be restored, within ninety days of such commencement, to the
possession of the bonded labourer:

Provided that, where any attached property was sold before the commencement of this Act, in
execution of a decree or order for the recovery of a bonded debt, such sale shall not be affected
by any provision of this Act.

(6) Subject to the proviso to subsection (5), any sale, transfer or assignment of any property of a
bonded labourer made in any manner whatsoever before the commencement of this Act for
recovery of bonded debt shall not be deemed to have created or transferred any right, or interest
in or encumbrance upon any such property and such property shall be restored, within ninety
days of such commencement, to the possession of the bonded labourer.

(7) If restoration of the possession of any property referred to in subsection (4) or subsection (5)
or subsection (6) is not made within ninety days from the commencement of this Act, the
aggrieved person may, within such time as may be prescribed, apply to the prescribed authority
for the restoration of the possession of such property and the prescribed authority may, after
giving the creditor a reasonable opportunity of being heard, direct the creditor to restore to the
applicant the possession of the said property within such time as may be specified in the order.

(8) An order made by any prescribed authority under sub-section (7) shall be deemed to be an
order made by a Civil Court and may be executed by the Court of the lowest pecuniary
jurisdiction within the local limits of whose jurisdiction of the creditor voluntarily resides or
carries on business or personally works for gain.

(9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour
system, including a suit or proceeding for the recovery of any advance (peshgi) made to a
bonded labourer, is pending at the commencement of this Act; such suit or other proceedings
shall, on such commencement, stand dismissed.

1360
(10) On the commencement of this Act, every bonded labourer who has been detained in civil
prison, whether before or after judgment, shall be released from detention forthwith.

Section 7. Property of bonded labourer to be freed from mortgage, etc.---(1) All property vested
in a bonded labourer which, was immediately before the commencement of this Act, under any
mortgage, charge, lien or other encumbrance in connection with any bonded debt shall, insofar as
it is relatable to the bonded debt, stand freed and discharged from such mortgage, charge, lien or
other encumbrance; and where any such property was, immediately before the commencement of
this Act, in the possession of the mortgagee or the holder of the charge, lien or encumbrance,
such property shall, except where it was subject to any other charge, on such commencement, be
restored to the possession of the bonded labourer.

(2) If any delay is made in restoring any property referred to in subsection (1) to the possession
of the bonded labourer, such labourer, shall be entitled, on and from the date of such
commencement, to recover from the mortgagee or holder of the lien, charge or encumbrance,
such mesne profits as may be determined by the Civil Court of the lowest pecuniary jurisdiction
within ,the local limits of whose jurisdiction such property is situated.

Section 8. Creditor not to accept payment against extinguished debt.---(1) No creditor shall
accept any payment against any bonded debt which has been extinguished or deemed to have
been extinguished or fully satisfied by virtue of the provisions of this Act.

(2) Whoever contravenes the provision of subsection (1), shall be punishable with imprisonment
for a term which may extend to three years, or with fine which shall not be less than fifteen
thousand rupees, or with both.

(3) The Court convicting any person under subsection (2) may, in addition to the penalties which
may be imposed under that subsection, direct such person to deposit in Court, the amount
accepted in contravention of the provisions of subsection (1), within such period as may be
specified in the order, for being refunded to the bonded labourer.

1361
Section 11. Punishment for enforcement of bonded labour.---Whoever, after the commencement
of this Act compels any person to render any bonded labour shall be punishable with
imprisonment for a terms which shall not be less than two years nor more than five years, or with
fine which shall not be less than fifty thousand rupees, or with both.

5. The facts, in brief, necessary to understand the genesis of these cases are as follows. Two
complaints, one by the labourers and other by the owners of some brick kilns, moved before
Supreme Court of Pakistan, were taken up for adjudication by it in exercise of its powersunder
Article 184 of the Constitution of Islamic Republic of Pakistan. The complaint made by the
labourers was that the owners were pressing them to work at their brick Kilns against Peshgis
(advances) and on their refusal they were being maltreated. On the other hand the grievance of
the brick kiln owners was that the labourers, after having received substantial amounts in
advance with the undertaking to work at their respective brick kilns, had ceased to do so causing
immense loss to them.

All concerned were heard at considerable length by the Supreme Court. Ultimately, a broad
agreement was reached, leading to the following interim order dated 17-9-1988:--

"1. (i) Peshgi system to be discontinued forthwith except that up-to one week' estimated wages
may be paid by the owner to the worker as advance against proper receipt.

(ii) The payment shall be made to the worker concerned or the head of the household, direct in
cash. The receipt shall be issued in duplicate-one to be retained by each.

(iii) The institution of "Jamadarni" is finished and he is excluded for all times. No payment for
others shall be made to him nor shall it be acknowledged in any forum, as due in any form, if
claimed to have been made through him.

(iv) The institution of "Jamadarni" is likewise finished altogether.

(v) Every case registered anywhere in Punjab by the police, which deals with directly or
indirectly, any of the constituents of the practice of bonded labour in the brick-kiln industry,

1362
shall be reported to the Advocate-General, with a copy of the F.I.R. within 24 hours. The
Advocate-General shall submit a photocopy of the F.I.R. and other documents, if any, with his
own comments, within further 24 hours, to the Supreme Court.

(vi) Past Peshgis for the time being shall not be treated as void and unrecoverable. However, they
shall not at all be recovered in any form through police or through the employment of the so-
called "labour" under the "peshgi recovery arrangement" or through any coercive measure; and
further orders shall be made by the Court in this behalf including the request for utilization of the
Zakat fund for the discharge of so-called bad debts of Peshgi. The question, whether recoveries
would be abolished altogether and whether Legislation shall be made on the lines as done in
India, is deferred for the time being, for six months. This aspect shall be reviewed in the light of
the working of these arrangements to which all concerned have agreed if approved by Court.

(vii) Filing of Habeas Corpus petitions shall not be stopped. However, all concerned have agreed
that if the arrangement agreed upon or put into practice the need for filing false/genuine Habeas
Corpus petitions would not arise. The Advocate-General shall however, appear personally in
every Habeas Corpus petition whether in the High Court or in the Supreme Court.

(viii) The owners shall not directly ask or pressurize any labourer for employing the womenfolk
or children. However, if the latter do so at their own risk and responsibility, no complaint shall
then be made against the Bhatta owners in this behalf. The head of the household who employs
any of their womenfolk against her wishes and or children, might in proper cases, be proceeded
against. The payment made to the head of the household including that of his family members
male, female, shall be in the name of the head of the household. Separate recipients may not be
mentioned in the formal registers and receipts.

(ix) No deduction whatsoever shall be made from wages; or the number of bricks, if they are
more than 1000 shall be counted as 1000 in any garb. The damage/loss to the bricks suffered on
account of rain shall be wholly borne by the owner. Similarly, no other deduction including that
of Past Peshgi, loans including those for marriages or for medical treatment etc. shall be made
from the wages.

(x) Payment made by the owner to the labourer in addition to the wages whether in the form of
formal loan or otherwise for marriages and other ceremonies or for medicines or other purposes
shall not be recoverable from the labourer. If genuinely paid/spent they shall be treated as for
good will or donation.

1363
(xi) Other arrangements that may be specified at the final stage in the final Judgment."

6. The matter was disposed of on 15-3-1989 with the following salient directions:--

(i) Past unreturned Peshgis (advances) given to the labourers would be treated outstanding
against them.

(ii) Peshgi system in future would be discontinued.

(iii) In future payment of wages would be made to the labourers on daily, weekly, fortnightly and
monthly basis as agreed upon between the parties.

(iv) Jamadari system is to cease forthwith.

(v) The owners shall not be directly or indirectly ask or pressurize any labourer for employing
womenfolk or children.

This judgments is reported as ",In The Matter of Enforcement of Fundamental Rights Re:
Bonded Labour In Brick Kiln Industry" 1989 SCMR 139).

In 1989 another case pertaining to brick kiln industry qua dispute between labourers and the
brick kiln owners came up before Supreme Court of Pakistan in a case titled "Darshan Masih
alias Rehmatay and others v. The State". Their Lordship took great pains in resolving it. The
hearing of the case went on for considerable period, Certain suggestions/recommendations were
made by different Committees constituted by the Court.

1364
This case was decided on 15-3-1989 with the directions, inter alia, that the important elements in
the Fundamental Rights regarding prohibition of forced labour, dignity of man, freedom of
movement, freedom of trade, business or profession etc. should be put in consolidated form. It
was observed that "it might be necessary to define the expression "forced labour" with
illustrations of its different forms; in such a manner, so as to minimize any confusion about its
real purport as also the resultant unproductive litigation. For the same purpose the other
important elements in these Fundamental Rights, may be collected together and put in a self-
contained Code. It might cover all aspects of human dignity, deprivations and misery, including
those rights in this behalf which are ensured, in addition, as basic human rights in Islam.---This
comprehensive law should deal with the compulsory education of the classes concerned for
making them aware of their rights, the detection of the infringement thereof as the duty of the
State; and providing remedial mechanism also at the instance of the State whenever the will to
assert or exercise them is lacking on the part of a citizen".----Pages 545, 546 of the report--(PLD
1990 SC 513).

The matter was ultimately disposed of in terms of the agreed order dated 15-3-1989 (reproduced
hereinabove in para. 6 ibid). Thus the peshgi system and Jamadari system were done away with
for all times to come by Hon'ble Supreme Court.

7. Pursuant to the above two land-mark judgments of the apex Court of the country, the
legislature passed the Bonded Labour System (Abolition) Act, 1992, some of the provisions
whereof (noted in para. 4 ibid) have now been brought under challenge by the brick kiln owners
through these Shariat Petitions.

8. It is manifest that the above two judgments of the Supreme Court of Pakistan, even if not to be
equated with a "judgment in rem," are authoritative on account of their Constitutional status and
as such conclusive of the matters/issues adjudicated upon.

We closely questioned learned counsel for the petitioners, in all these petitions, to demonstrate, if
possible, that the impugned provisions of "the Act" were violative of the directions/guidelines
given by Supreme Court in the above judgment. He failed to do so. We are fully satisfied that
"the Act" was passed by the legislature strictly in line with directives of the Supreme Court. By
purporting to challenge the vires of A the impugned provisions of "the Act" what the petitioners
really seek is the effacement of the binding effect of the two judgments, which is not permissible
in law.

1365
The judgments of Supreme Court declaring the law on the subject cannot be called in question by
a person or by a batch of persons B though he/they might not be party to the judgment. We may
refer with some advantage to two decisions from Indian jurisdiction i.e. "M/s Shenoy and Co.,
Bangalore and others Y. Commercial Tax Officer, Circle II, Bangalore and others" (AIR 1985
Supreme Court 621) and "M/s Star Diamond Co. India versus Union of India and others" (AIR
1987 Supreme Court 179), wherein it was held that Supreme Court IC decision was binding on
all persons though they were not party before Supreme Court.

Even an obiter in a judgment by Supreme Court carries bindings effect. See "National Bank of
Pakistan v. Banking Tribunal and others" (PLD 1994 Karachi 358 at 362) and M.Z.Khan v.
Aziz-ud-Din Ahmad Khan" (2004 YLR 84).

9. In our view "the Act", as a whole, is a beneficial statutory dispensation of vital importance as
it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not
only in the brick kiln industry but also in other sectors in the country like haris tenants-at-will,
labourers in mining industry, glass bangle industry, tanneries etc.

10. Mr. Irshad Ahmad Qureshi, learned counsel for the petitioners tried to submit that the above
judgments were delivered by the Supreme Court of Pakistan under Article 184 of the
Constitution of Islamic Republic of Pakistan to ensure that the fundamental rights of the parties
to the dispute i.e. brick kilns owners on the one hand and the labourers working in the said brick
kilns on the other were protected and their denial/violation was checked. The main thrust of his
argument was that the Supreme Court did not consider the matter in the light of Islamic
Injunctions on the subject and as such the petitioners were within their rights to assail the
relevant provisions of "the Act" i.e. Bonded Labour System (Abolition) Act, 1992 as being
violative of Holy Quran and Sunnah.

11. While arguing on merits of these petitions, Mr. Irshad Ahmed Qureshi, learned counsel for
the petitioners tried to demonstrate that the Peshgi system, prevalent in the brick kilns, was not
against the Injunctions of Islam. According to him, the labourers used to perform their duties
pursuant to lawful agreements between the parties, which stood sanctified by Injunctions of
Islam. In this view of the matter the impugned provisions of "the Act" regarding abolition of
Peshgi system and branding the labourers working in the brick kilns as "bonded labour" were
liable to be declared as contrary to mandate of Holy Quran and Sunnah.

In support of his submissions learned counsel relied upon the following Verse from the Holy

1366
Quran:--

O. ye who believe, fulfil your undertakings. (5:1)

Besides, learned counsel also relied upon the following Hadith of the Holy Prophet (peace be
upon him).

He, who is devoid of honesty does not possess faith and there is no Deen for one who does not
fulfil his contract (promise).

It was argued that the Peshgi amounts were being given to the workers in the brick kiln under
valid and lawful agreements and therefore, there was no justification available in law for
Legislature to abolish the Peshgi system vide section 4 of "the Act" "Jamadari system" was also
necessary to be kept alive so as to enable the brick kiln owners to keep watch over the
performance of the workers with regard to the job of brick making entrusted to them.

12. On the other hand both learned Standing counsel for the Federal Government and Miss Asma
Jahangir Advocate, learned amicus curiae vehemently opposed these petitions both on the
ground of maintainability as well as on merits.

13. A perusal of the judgments of the Supreme Court (supra) would show that these indeed
protected/upheld the following fundamental rights of the labourers:

(i) Security of life or liberty of a person---Article 9.

(ii) Safeguard as to arrest and detention---Article 10.

(iii) Prohibition of all forms of forced labour---Article 11.

1367
(iv) Upholding of inviolability of dignity of man---Article 14.

(v) Guarantee of freedom of movement---Article 15.

(vi) Freedom of trade, business or profession---Article 18.

On 10th June, 1930 the General Conference of the International Labour Organization convened a
conference at Geneva and adopted certain proposals to take the form of International Convention
about Forced or Compulsory Labour. Pakistan ratified this Convention known as "29th Forced
Labour Convention, 1930" on 23-12-1957. Two Articles of this convention are relevant in the
context of the controversy involved in these cases. These are reproduced as under:--

"Article 4.

The competent authority shall not impose or permit the imposition of forced or compulsory
labour for the benefit of private individuals, companies or associations.

2. Where such forced or compulsory labour for the benefit of private individuals, companies or
associations exists at the date on which a Member's ratification of this Convention is registered
by the Director-General of the International Labour Office, the Member shall completely
suppress such forced or compulsory labour from the date on which this Convention comes into
force for that Member.

Article 5.

No concession granted to private individuals, companies or associations shall involve any form
of forced or compulsory labour for the production or the collection of products which such
private individuals, companies or associations utilize or in which they trade."

1368
15. Some of the human rights and freedoms were compendiously recounted in the Universal
Declaration of Human Rights, which was proclaimed by United Nations on 10th December,
1948. It sought to uphold the following rights of human beings:--

(1) Article 3. Every one has the right to life, liberty and security of person.

1369
P L D 2010 Federal Shariat Court 1

Before Dr. Fida Muhammad Khan, Salahuddin Mirza, Muhammad Zafar Yasin and Syed Afzal Haider,
JJ

Dr. MUHAMMAD ASLAM KHAKHI and others----Petitioners

Versus

THE STATE and others----Respondents

Shariat Petition No.61/I with Shariat Miscellaneous Application No.10/U of 1998, Shariat Petition
No.62/I of -1992 with Shariat Miscellaneous Application No.11/I of 1998, Shariat Miscellaneous
Applications Nos.21/I of 1995, 16/I of 1997 19/I of 1997, Shariat Petitions Nos.12/I of 1999 and 4/I
of 2004, decided on 28th August, 2009.

(a) Islamic Jurisprudence---

----Religious obligation---Need to watch, examine and adopt new developments in contemporary

societies is a religious obligation of every Muslim.

Hadith No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja; Ibn-e-Maja, Vol. 1 (Urdu Translation),
p.143 Chap. ILM and Hadith No.28697 Bab-ul-Ilm, Vol. 10 Kunzul-Ummal quoted.

1370
(b) Constitution of Pakistan (1973)---

----Part VII, Ch.3A [Arts.203-A to 203-J] & Art.227---"Repugnant"---Connotation and scope---Meaning

and scope of the term "repugnant" is not limited only to the actual state of being contrary i.e.
contrariety, conflict, antognistic, opposite or being disparate of the letter of the NASS/Injunctions of
Islam alone but would also cover the case when an impugned provision of law, law itself or a
custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible irreconcilable or
even averse to the spirit of the NASS i.e. Injunctions of Islam---Principles.

MacMillan: English Dictionary; Word Book Dictionary; Oxford Dictionary; Dictionary of

Terms/English Urdu Vol. 3 p.1472, 1985 Edn. Printed by Urdu Science Board; Law 'Dictionary English
Urdu published by National Language Authority Pakistan (based upon the famous Black's Law
Dictionary); Lexicon Webster Dictionary, Vol.III, p.815; Wharton's Law Lexicon; Vishnu
Bhattathiripaid v. Poulo, 1953 Ker. L.T.238: LL.R. 1952 Trav-Co. 670 = AIR 1953 Trav-Co.327(D.B);
Presson v. Presson 147 p.1081, 1082, 38, Nev.203 and Words and Phrases Vol. 37, p.90 ref.

(c) Pakistan Prisons Rules, 1978---

----Rr. 180 & 181---Constitution of Pakistan (1973), Art.203-D---Notice to Railway authorities and
travelling of superior class prisoners---Vires of Rr.180 & 181 of Pakistan Prisons Rules, 1978 on the
touchstone of Injunctions of Islam---Rules 180 & 181 of Pakistan Prisons Rules, 1978 do not
contravene any of the Injunctions of Islam---Federal Shariat Court observed that it will however be
appreciated that the superior class prisoner is only given the option to travel in second class
compartment on the condition of payment of difference in the railway fare, both for himself and
the escort---Principles.

Ayat 27 Sura 22 (AI-Hajj) ref.

(d) Pakistan Prisons Rules, 1978---

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----Rr. 147, 148 & 149---Prisoners Act (III of 1900), Ss.29 & 42---Constitution of Pakistan (1973),
Art.203-D---Transferring certain categories of prisoners within and beyond the territorial limits of a
Province and from one jail to another jail within the Province---Vires of Rr.147, 148 & 149 Pakistan
Prisons Rules, 1978 and Ss.29 & 42, Prisoners Act, 1900' on the touchstone- of Injunctions of Islam---
Rules 147, 148 & 149 of the Pakistan Prisons Rules, 1978 and S.29 of Prisoners Act, 1900 are
repugnant to Injunctions of Islam---Extent of repugnancy and exceptions---Principles.

Federal Shariat Court observed that firstly no provision has been incorporated for any notice being
given to the prisoner before his removal within or beyond the local limits of a Province and secondly
arbitrary powers have been given to the Provincial Government as well as the Inspector-General of
Prisons for transfer of a prisoner to different prisons within the Province and the same unfettered
power is enjoyed by the Federal Government when the transfer is to be made beyond the limits of a
Province, and thirdly that the right of appeal before an independent tribunal has not been provided
against such routine but harsh orders; and fourthly there is no limit to the number of transfers that
can be inflicted upon a prisoner.

Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions of
Islam. Notice and right of appeal has to be provided whenever an order adverse to the interest of
an aggrieved person is passed by any authority. In this view of the matter the following principles
should be read as part of every statute namely:-

(a) Notice must issue to a person against whom an order/action, adverse to his interests, is
proposed to be made disclosing the reasons for the same with an adequate opportunity to show
cause against it.

(b) The authority, office or person issuing any order or direction which affects any person
prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be
given to the affected person to show cause against the proposed action. [Reference section 24-A
General Clause Act, 1897.]

(c) Right of appeal before an independent tribunal/authority, higher than the one which issues the
impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge
of the District should be the appellate authority.

1372
The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29
Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and. Ayaat 6 through
8 Sura 99 of the Holy Qur'an.

Direction by the Government or the Inspector General of Prison Department for removal of a
prisoner from one prison to another prison within the Province or from one Province to another
Province must be supported by a speaking order. Unless it is a question of dire necessity or
emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know
why he is being transferred away from his home town. There must be legal justification to lodge a
prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to
serious disadvantage, particularly of women folk and children, of prisoner. Muslims have been
directed to create facilities for the people and not to add to their hardships and apprehensions:
"YASSARA WA LA TOASSARA".

Rules 147 through 149 of the Pakistan Prisons Rules, 1978 as well as section 29 of the Prisoners Act,
1900 are repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the
extent that the Government enjoys unfettered power to transfer a prisoner from one Province to
another Province without giving notice to the prisoner or without obtaining his consent or without
referring to any lawful reason by way of a speaking order conveyed to the detenue and without
providing any remedy against exercise of such authority. Similarly the power of the Inspector
General of Prisons to transfer a prisoner from one prison to another within the province without
notice or consent of the prisoner and without providing a right of appeal before an independent
tribunal is declared as repugnant. Federal Shariat Court observed that Chapter 7 of the Pakistan
Prisons Rules, 1978 and section 29 of Prisoners Act, 1900 should be recast in a manner in which (a)
arbitrary, unbridled and unfettered powers are neither given to the Government nor the Inspector
General of Prisons; (b) and unless the gravity of the situation really demands an expeditious action,
transfers within the Province or beyond the limits of Province, without notice or consent, should be
eschewed. This however does not cover the case of a convict whose release is due and he is being
transferred near his home town as provided in Rule 148 or who is required to be produced in
another court in a case being tried elsewhere or there are other reasonable grounds such as safety,
security or health. However the transfer policy should be based upon reasonable considerations
subject of course to notice and the right of appeal or representation before an independent
tribunal. Notice need not be given where a prisoner himself seeks transfer on solid grounds.

1373
The case of Ataullah Mengal v. The State PLD 1965 Kar. 350 and the case of Ali Muhammad v. State
reported as 1974 PCr.LJ 249 may also be considered by the amending authorities. Present decision
regarding repugnancy of the impugned provisions of law will take effect as from 1-12-2009 during
which period the necessary amendments, additions or alterations may be effected by relevant
authorities.

PLD 1984 FSC 34; Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD
2005 FSC 3; Pakistan and others v. Public at Large PLD 1987 SC 304; Ayaat 14 and 71 of Sura 17;
Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura
84 and Ayaat 6 to 8 Sura 99; Ataullah Mengal v The State PLD 1965 Kar. 350 and Ali Muhammad v.
State 1974 PCr.LJ 249 ref.

(e) Islamic Jurisprudence--

----Administration of justice---Notice and right of appeal has to be provided whenever an order

adverse to the interest of an aggrieved person is passed by any authority and such principles to be
read as part of every statute.

The following principles should be read as part of every statute namely:

(a) Notice must issue to a person against whom an order/action, adverse to his interests, is
proposed to be made disclosing the reasons for the same with an adequate opportunity to show
cause against it.

(b) The authority, office or person issuing any order or direction which affects any person
prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be
given to the affected person to show cause against the proposed action. [Reference section 24-A
General Clause Act, 1897.]

1374
(c) Right of appeal before an independent tribunal/authority, higher than the one which issues the
impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge
of the District should be the appellate authority.

The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29
Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 6 through 8
Sura 99 of the Holy Qur'an.

(f) Federal Shariat Court Procedure Rules, 1981---

---Rr. 7 to 16A---Filing of petition before Federal Shariat Court--Petitions, before Federal Shariat
Court are to be filed in accordance with the mandated provision of the Federal Shariat Court
Procedure Rules, 1981 so that the precise issues are brought before the Court for determination
without loss of time---Federal Shariat Court deprecated non-vigilance of parties and Registry of the
Court in that respect.

(g) Islamic Jurisprudence---

----Principle of equality vis-a-vis the teachings of Islam---Equivalence is a distinctive feature of Islam-

--Islam presupposes that all the human beings are equal and enjoy the same set of liberties and
limitations---Equality should not be confused with classification; Islam negates discrimination but
upheld reasonable classification---Principles.

Holy Qur'an and the precepts of Prophet Muhammad, p.b.u.h., are vocal on the issue of equality
status of human beings. The Injunctions of Islam bear ample testimony, as is evident from Ayat 13
Sura 49, that the noblest among the believers in the sight of Allah is the one who is most mindful of
his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet, p.b.u.h.,
at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an
illuminating charter of human rights arid freedoms wherein liberty and equality are declared as
basic principles of Divine Message. But equality should not be confused with classification. Islam
negates discrimination but uphold reasonable classification.

1375
The principle of equality between human beings is innate in Islamic teachings. When the Holy
Qur'an proclaims that every human being is worthy of respect and dignity as is evident from Ayat
70, Sura 17, Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour,
creed, community, country and other man made geo-political divisions, are equal. The divine
statement contained in Ayat 76 Sura 38, to the effect that man was created from clay is a loud and
clear proclamation that all human beings are in fact equal. Similarly the declaration contained in
Ayaat 22 and 29, Sura 2 Al-Baqra, and repeated at number of places in the Holy Qur'an, namely that
the bounties scattered in the cosmos are meant for the consumption of human beings, necessarily
implies that human beings are not only equal but enjoy equal opportunities. The Qur'anic principle
that those who do good shall inherit gardens clarifies the matter further by suggesting that the
criteria of success is good conduct whether done by someone from the lower strata of society or
done by a politically and financially strong person or a blue-blooded aristocrat. The right to choose,
as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has been granted to all and sundry. Why?
Because Islamic jurisprudence pre-supposes that all the human beings are equal and enjoy the same
set of liberties and limitations. The Holy Qur'an is that revealed Book which in fact introduced the
concept of unity of human race. Reference may be made to Ayat 213, Sura 2, Ayat 32 of Sura 30 and
Ayat 19 of Sura 10. Similarly the declaration that no one shall bear the burden of any other soul, as
given in Ayat 164 of Sura 67, and that every one is accountable for his deeds as enunciated in Ayat
202 Sura 2, is a clear pointer towards the principle of equality. At the socio-economic and political
level, the Holy Qur'an makes it abundantly clear in Ayat 35 Sura 33, that men who submit and the
women who submit, the faithful men and the faithful women etc. etc. shall receive rewards. Ayat
173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid illustration of
equality of all human beings irrespective of time and place of birth. Equivalence is a distinctive
feature of Islam. These human friendly principles introduced by Divine Message through the
honoured Prophets A.S. paved the way for humanism and the International Charter of Human
Rights.

Abdul Rashid v. The State 1980 SCMR 632; Waheed Akhtar v. Superintendent, Camp Jail, Lahore and
another PLD 1980 Lah. 131; Ayat 13 Sura 49; Khutba of the Holy Prophet, p.b.u.h., at the, time of
conquest of Macca as well as the last Sermons; Ayat 70 Sura 17, Bani Israel; Ayat 76 Sura 38; Ayaat
22 and 29; Sura 2 Al-Baqra; Ayat 104 Sura 6; Ayat 29 Sura 18; Ayat 213; Sura 2; Ayat 32 of Sura 30;
Ayat 19 Sura 10; Ayat 164 Sura 67; Ayat 202 Sura 2, Ayat 35, Sura 33 and Ayat 173 Sura 7 ref.

(h) Pakistan Prisons Rules, 1978---

1376
----Chap. 9 [Rr. 224-249] & Chap. 10 [Rr. 250-270]---Constitution of Pakistan (1973), Art.203-D---
Classification and superior class prisoners---Vires of Chaps. 9 & 10 of Pakistan Prisons Rules, 1978
on the touchstone of Injunctions of Islam--Notwithstanding general equality among human beings,
the rule of classification is an established principle of Islamic Jurisprudence.

[Qur'anic Verses extensively quoted].

(i) Interpretation of statutes---

----Entire law on a given subject has to be seen as one integrated whole to carter to social
requirement in a particular chapter of human life.

(j) Islamic Jurisprudence---

----Equality among human beings and rule of classification---Principle---Notwithstanding general

equality among human beings, the rule of classification is an established principle of Islamic
Jurisprudence.

(k) Constitution of Pakistan (1973)---

----Art. 25---Equal protection of law and reasonableness of classification---Principles---Duty of

Court---Scope.

The following are principles with regard to equal protection of law and reasonableness of
classification:

1377
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be
treated alike;

(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or
reasonable basis;

(iii) that different laws can validly be enacted for different sexes, persons in different age groups,
persons having different financial standings, and persons accused of heinous crimes;

(iv) that no standard of universal application to test reasonableness of a classification can be laid
down as what may be reasonable classification in a particular set of circumstances may be
unreasonable in the other set of circumstances;

(v) that a law applying to one person or one class of persons may be constitutionally valid if there is
sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any
rational basis is no classification as to warrant its exclusion from the mischief of Article 25 of the
Constitution;

(vi) that equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;

(vii) that in order to make a` classification reasonable, if should be based:

(a) on an intelligible differentia which distinguishes persons or things that are grouped
together from those who have been left out;

1378
 (b) that the differentia must have rational nexus to the object sought to be achieved by such
classification.

(viii) that a law may be constitutional even though it relates to a single individual if, on account of
some special circumstances, or reasons applicable to him and not applicable to others, that single
individual may be treated as a class by himself.

(ix) that there is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must
make out that not only has he been treated differently from others but he has been so treated from
persons similarly circumstanced without any reasonable basis and such differential treatment has
been unjustifiably made. However, it is extremely hazardous to decide the question of the
constitutional validity of a provision on the basis of the supposed existence of facts by raising a
presumption. Presumptions are resorted to when the matter does not admit of direct proof or
when there is some practical difficulty to produce evidence to prove a particular fact;

(x) that it must be presumed that the Legislature understands and correctly appreciates the needs
of its own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds;

(xi) that the Legislature is free to recognize the degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest;

(xii) that in order to sustain the presumption of constitutionality, the Court may take into
consideration matters of common knowledge, matters of common report, the history of the times
and may assume every state of facts which can be conceived existing at the time of legislation;

(xiii) that while good faith and knowledge of the existing conditions on the part of the Legislature
are to be presumed, if there is nothing on the face of the law or the surrounding circumstances
brought to the notice of the Court on which the classification may reasonably be regarded as based,

1379
the 'presumption of the constitutionality cannot be carried to the extent of always holding that
there must be some undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminating legislation;

(xiv) that a classification need not be scientifically perfect or logically complete;

(xv) that the validity of a rule has to be judged by assessing its overall effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is a just one taking
all aspects into consideration.

Constitution of Islamic Republic of Pakistan by Syed Shabbar Raza Rizvi and V.N. Shukla's
Constitution of India 7th Edn. ref.

(l) Constitution of Pakistan (1973)---

----Part II, Chap. I [Atts.8 to 28]---Reasonable restriction---Concept of reasonable restriction as

emerges on interpretation of constitutional provisions, including Art.25 of the Constitution, is not
alien to Islamic teachings---Concept of human dignity received legal recognition for the first time
when Ayat 70 of Sura 17 of Holy Qur'an was revealed.

Ayat 32 Sura; Ayaat 178, 179 & 194 Sura 2; Ayat 45 Sura 5 and Ayat 70 Sura 17 ref.

(m) Islamic Jurisprudence---

----Fundamental rights---Right of freedom of expression---Every human being enjoys the right of

freedom of expression but Islamic Injunctions Put a limit on the exercise of said fundamental right
because an individual is not authorised to violate similar rights of others on the pretext of

1380
realization of his own basic rights.

(n) Islamic Jurisprudence---

----Fundamental rights---Scope---Even fundamental rights are not absolute in the eyes of law.

Ayat 256 Sura 2; Ayat 23 Sura 4; Ayat 60 Sura 9; Ayat 41 Sura 8 and Ayat 43 Sura 2 ref.

(o) Pakistan Prisons Rules, 1978---

----Preamble ---Prisoners Act, (III of 1900), Preamble---Constitution of Pakistan (1973), Part II, Ch.1
[Arts.8 to 28] & Art.203-D---Vires of prison legislative instruments on the touchstone of Injunctions
of Islam---Fundamental rights guaranteed by the Constitution are firmly based upon various
Injunctions of Islam---Existing provisions of prison legislative instruments are presumed to be valid,
legal and not violative of constitutional guarantees unless proved to the contrary---Presumption of
constitutionality is attached to every legislative instrument and courts generally lean towards
upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie
discriminatory or capable of discriminatory application and otherwise clearly violative of any
provision of the Constitution.

Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903;
East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854; Inamur Rehman v.
Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh v..
Firm Narain Das AIR 1944 Lah. 302 ref.

(p) Islamic Jurisprudence---

1381
----Reasonable classification---Scope---Basic principle of Islamic Jurisprudence is that reasonable
classification is permissible but discrimination has to be eschewed because discrimination violates
the well-known tradition of Holy Prophet proclaimed in Khutba Hujjat-ul-Wida.

(q) Islamic Jurisprudence---

----Prison discipline---Primary concern of Islamic Jurisprudence is the administration of even-handed

justice---Federal Shariat Court observed that prevailing prison system, does not envision
rectification, reform, reformation, or rehabilitation of the convict and advised the managers of
prison system to adopt objective attitude and bring a change in the prison discipline as well as in
the outlook.

Ayat 53 Sura 39; Sunan Abi Daud and Sunan Ibn-e-Maja; Kitabul-Kuna-Aldaulaki; Sunan Abi Daud
tradition Nos.5215-5216 and Sunan Abi Daud Tradition No.4842 ref.

(r) Pakistan Prisons Rules, 1978---

----R. 546---Constitution of Pakistan (1973), Art.203-D---Facilities to be provided to new entrants in

the prison including provisions for reading, writing and meeting friends and relatives, receiving
things at the time of interview by the prisoner and censorship of letters delivered to or sent by
prisoner---Vires of R.546, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---
Administration, for the purpose of security can take the steps like checking and censorship and such
course of action is permissible in Islam.

(s) Pakistan Prisons Rules, 1978---

----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Vires of R.690,

Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---List of prohibited articles as
per Item No.5 of the Rule mentions "all books, papers and printed or written matters and materials

1382
and appliances for printing or writing of whatever description "---Words "all books, papers and
printed or written matters" in Rule 690 of Pakistan Prisons Rules, 1978 are repugnant to Injunctions
of Islam---Principles.

Ayat 269 Sura 2; Ayaat 1-5 Sura 96, Ayat 1 Sura 68; Ayaat 73, 76 and 171; 242 Sura 2; Ayat 43 Sura
16; Tirmazi .in . Book of Knowledge (Tradition No.2687), Tradition No.1919 and Ayat 220 Sura 2 ref.

(t) Islamic Jurisprudence---

----Shariah, objectives of---Objectives of Shariah, known as Maqasid-e-Sharia are in fact guarantees

for the betterment of humanity and provides five basic principles/values being (i) preservation of
Deen (Religion); (ii) preservation of intellect; (iii) preservation of life; (iv) preservation of property
and (v) preservation of progeny---Illustration.

Ayat 220 Sura 2 ref.

(u) Pakistan Prisons Rules, 1978---

----Rr. 75 & 690---Constitution of Pakistan (1973), Art.203-D---Amendment made in R.690 in

Balochistan and N.-W.F.P. Provinces Permitting the prisoners to have a reasonable quantity of
reading and writing material has not been incorporated in R.75, Pakistan Prisons Rules, 1978 which
omission is not only violative of Islamic Injunctions but also contrary to the principle of uniformity of
laws applicable to same categories of citizens all over the country---Principles.

(v) Pakistan Prisons Rules, 1978---

----Rr. 307 & 314---Constitution of Pakistan (1973), Art.203-D---Confinement of women prisoners and

1383
innocent children---Vires of Rr.307 & 314, Pakistan Prisons Rules, 1978 on the touchstone of
Injunctions of Islam---Federal Shariat Court observed that there is nothing at all either in R.307 or.
R.314 of the Prisons Rules, 1978 which violates Injunctions contained in Ayat 151 Sara 6 of Holy
Qur'an on the contrary R.314 specifically mandates that male officer can enter only if he has a
legitimate duty to attend to, and is accompanied by the woman warder all the time he remains
inside such ward or enclosure---Such is not conceivably covered by the mischief of the term
Fawahish i.e. lewdness---Government, at the most, may consider, defining the scope of the word
"necessary" occurring in R.314, Pakistan Prisons Rules, 1978 and may restrict the noctural visits only
to situation when a prisoner needs emergent medical care, or there are riotous conditions in the
barrack, a clamity like fire or an earthquake has damaged the enclosure---Every such visit of senior
officers may by law be required to be recorded and its intimation sent to the Inspector-General
Prisons next morning telephonically as well as in writing.

Ayat 151 Sura 6 and PLD 1995 Central Statutes 231 ref.

(w) Pakistan Prisons Rules, 1978---

----Rr. 935 & 939---Constitution of Pakistan (1973), Art.203-D---Superintendent of Jail---Vires of

Rr.935 & 939, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Petitioner, in
the present case, having neither advanced any precise objection as to the text or terminology of the
said Rules nor was any Injunction of Islam shown to have been violated by the inclusion of said two
provisions in the Pakistan Prisons Rules, 1978---Federal Shariat Court' dismissed the petition.

(x) Pakistan Prisons Rules (1978)---

----Rr. 1180 & 1181---Constitution of Pakistan (1973), Art.203-D---Lady Assistant Superintendent and
women warders---Vires of Rr.1180 & 1181, Pakistan Prisons Rules, 1978 on the touchstone of
Injunctions of Islam---Contentions of the petitioners were that no woman could be placed in custody
of a male not within prohibited degree (non-Mahram) and that any situation, arranger, event or
system which might possibly lead to immorality or adultery was prohibited by Islam---Federal
Shariat Court observed that Lady Assistant Superintendent had been made physical incharge of a
women's prison and Rules also affirmed that women warder should be incharge of the women
enclosure in any prison---Women enclosures were already separate from the male enclosures and

1384
therefore, there did not exist any situation, arrangement, event which was directed towards or
might possibly lead to immorality or adultery---Only because a provision could be used in an
oppressive or capricious manner or was capable of being used did not mean that the provision itself
became invalid---Sole criteria were the test of repugnancy to Holy Qur'an or Sunnah of the Holy
Prophet.

Pakistan and others v. Public At Large and others PLD 1987 SC 304 ref.

(y) Pakistan Prisons Rules, 1978---

----Rr. 1002 & 1004---Constitution of Pakistan (1973), Art.203-D---Deputy Superintendent, general

duties---Vires of Rr.1002 & 1004 on the touchstone of Injunctions of Islam---Grounds mentioned in
the petition were in fact apprehensions e.g.; that the control of male staff over female prisoners
could lead to moral excesses---Federal Shariat Court observed that in fact no male officer was in
physical control of female prisoners---Latter were under the supervision of female warders and Lady
Assistant Superintendent of Jail---No female prisoner was placed in custody of non-Maharani male
and the objection, that anything leading towards immorality was prohibited in Islam was a
misplaced feeling and it would certainly not advance the cause of justice if an order was made to
read mischievous meaning in any provision of law unless of course, it was shown by reasonable
interpretation that provision under review was either expressly hit by an Injunction of Islam or by
implication was repugnant to the letter or spirit of Injunctions of Islam---Injunction of Islam, to be
relied upon, must be identified so that a bare reading of the Injunction would indicate the obvious
mischief complained of---Rules, 1002 & 1004 impugned in the petition were therefore valid as no
reason was advanced to show that said provisions related to the performance of normal duties.

(z) Constitution of Pakistan (1973)---

----Art. 203-D---Repugnancy to Injunctions of Islam---Requirements for impugning a provision of law--

-Federal Shariat Court observed that it would certainly not advance the cause of justice if an order
was made to read mischievous meaning in any provision of law unless of course, it was shown by
reasonable interpretation that provision under review was either expressly hit by an Injunction of
Islam or by implication was repugnant to the letter or spirit of Injunctions of Islam---Injunctions of
Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate

1385
the obvious mischief complained of.

(aa) Pakistan Prisons Rules, 1978---

----R. 1078---Constitution of Pakistan (1973), Art.203-D---Prohibition against employment of

persons dismissed or punished criminally with an authority to Government as well as the
Inspector-General of Prisons to employ dismissed government officers and previous convicts---
Vires of R.1078, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---
Contention of the petitioner was that R.1078 was un-Islamic as the same prohibited a person
from earning legitimate livelihood (Rizq-e-Halal)---No Injunctions of Islam had been referred by
petitioner to establish that the impugned Rule was in any manner opposed to Islamic Injunctions--
-Federal Shariat Court observed that R.1078 did give arbitrary authority to Government as well as
the Inspector-General of Prisons to employ dismissed government officers and previous convicts--
-Such provision was discriminatory and was not covered by the principle of classification on
reasonable grounds---Elements of special sanction of Government and that of Inspector-General of
Prisons were violative of Injunctions of Islam on account of arbitrariness and other reasons---Rule
1078(i) of the Pakistan Prisons Rules, 1978 was declared to be repugnant to Injunctions of Islam
by the Federal Shariat Court---Impugned provision to the extent of special sanction shall ceases to
have effect as from 1-12-2009.

Verse 70 of Chap. 25 ref.

(bb) Criminal Procedure Code (V of 1898)---

----S. 382-B---Constitution of Pakistan (1973), Art.203-D---Period of detention to be considered

while awarding sentence of imprisonment--Vires of S.382-B, Cr.P.C. on the touchstone of
Injunctions of Islam---Objection of petitioner was that the period of detention in custody for the
offence should be deducted from the quantum of sentence of imprisonment awarded at the end
of trial for the same offence---Federal Shariat Court, in the light of relevant Verses of Holy Qur'an
and principles of Injunctions of Islam relating to the realm of administration of justice observed
that it appears to be just and reasonable that the period spent by a prisoner in detention/custody
for an offence before and during the trial ought to be deducted from the sentence awarded by
the trial court for the reason that the prisoner had already suffered incarceration on account of

1386
the crime report which became the basis of his conviction and the consequent sentence of
imprisonment; omission to deduct such a period of detention in the same cause would fall in the
category of ZULM which the Holy Qur'an does not countenance under any situation: (Refer Ayat
85 Sura 3); existing provision i.e. section 382-B of the Code of Criminal Procedure, 1898 in so far
as it speaks of taking into consideration the period spent in detention for the same offence,
before pronouncement of judgment was derogatory to the Injunctions of Islam; necessary.
correction may be made by 1-12-2009 whereafter the order of Federal Shariat Court will take
effect and the provision of section 382-B of the Code of Criminal Procedure would read as "Where
a court decides to pass a sentence of imprisonment of an accused for an offence, the period, if
any, during which such accused was detained in custody ,for such offence, whether before or
after submission of report under section 173 of the Code of Criminal Procedure or initiation of a
trial in a case instituted upon a complaint, shall be deducted from the quantum of sentence of
imprisonment awarded by the trial court or it may be adjusted against imposition of fine if the
court so directs"---Federal Shariat Court further observed that Court took notice of this provision
also because this point invariably crops up whenever the question of benefit of section 382-B of
the Code of Criminal Procedure comes under consideration at the time of award of sentence to
the accused both at the conclusion of the trial and at the time of hearing the appeal---Federal
Shairat Court hoped that this declaration will put an end to the controversy.

Ayaat 48, 123, 286 Sura 2; Ayat 135; Sura 4; Ayat 8; Sura 5; Ayat 15; Sura 10; Ayat 90 Sura 16;
Ayat 41 Sura 42 and Ayat 85 Sura 3 ref.

(cc) Pakistan Prisons Rules, 1978---

----Chap. 20 [Rr.468 to 507] & R.176---Constitution of Pakistan (1973), Art.203-D---Dietry

requirements of prison population---Vires of Chap.20, Pakistan Prisons Rules, 1978 on the
touchstone of Injunctions of Islam---Amount for diet having not been mentioned in the Rules,
Federal Shariat Court declined to declare the same ultra vires the Injunctions of Islam, however,
Court observed that adequate provision has to be made by all the Provincial Governments to
rationalize the quantum of dietry sanction for the prisoners because Islamic Injunctions are very
clear on this point.

Ayat 8 Sura 76; Ayat 56 Sura 24; Ayat 8 Sura 76; Bukhari, in Book LXXXIX, The Book of A'hkaam,
Chap.1; Ayat 34 Sura 4; Ansar Burney v. Federation of Pakistan and others PLD 1983 FSC 73 and

1387
Al-Mausooatal Qazaya pp.277-278 ref.

(dd) Pakistan Prisons Rules, 1978---

----R. 176(iii)---Constitution of Pakistan (1973), Art.203-D---Food of prisoners on transfer---Vires of

R.176(iii) of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat
Court observed that Rule 176(iii) of the Pakistan Prisons Rules, 1978 is violative of Islamic
Injunctions for said Rule provides that a prisoner on transfer will get diet money of Rs.3 per meal,
which money will not buy even one thin loaf of bread---Unless otherwise deleted or suitably
amended, said provision will cease to be part of the Rules after 1-12-2009, the minimum diet
money per meal should be Rs.50 which amount will be revisable every three years---Principles.

(ee) Pakistan Prisons Rules, 1978---

----R. 545-A---Constitution of Pakistan (1973), Arts.203-DD, 25(3), 35 & 38---Family life of prisoners---
Special meetings---Conjugal Oriented Parole Scheme---Federal Shariat Court appreciated the
introduction of Rule 545-A in the Pakistan Prisons Rules, 1978 and remarked that "indeed it was a
welcome start"---Court also observed that the Home Department can formulate a policy wherein the
married prisoners, except lifers and condemned prisoners, are enabled and encouraged, subject to
all necessary and reasonable conditions, to avail a week's parole every four month in the larger
interest of maintenance of family life---Spouse and children of the accused have a legitimate claim
upon the latter---Family union of the condemned prisoners and lifers can be arranged in the family
quarters within the prison walls; it will not only have a salutary effect upon the prison population
but these steps will be ;positive measures towards reduction of some problems arising on account
of over population in the prisons---Shariat Court hoped that all the Provincial Governments will
consider the matter particularly relating to family life of prisoners, and make amends by extending
on the one hand the scope of amended Rule 544, but also take positive steps to introduce Conjugal-
Oriented Parole Scheme in appropriate cases and also initiate family reunion on auspicious
occasions within the prison precincts in the larger interest of preservation of family life---Court
further hoped that necessary action will be taken by the end of 2010 and a report to that effect will
be sent by the Secretaries Home of all the Provincial Governments, Secretary Interior, Government
of Pakistan will also send his own report containing an objective assessment as regards the efforts
made and steps taken in this regard---Said reports must reach the Registrar of Federal Shariat Court
by 31-1-2011 whereafter this aspect of the case will be examined in February, 2011.

1388
(ff) Pakistan Prisons Rules, 1978---

----Chap. 14 [Rr.329 to 364]---Prisons Act (IX of 1894), S.30---Criminal Procedure Code (V of 1898),
S.376---Constitution of Pakistan (1973), Art.203-D---Condemned prisoners---Vires of Chap.14 (Rr.329
to 364), Pakistan Prisons Rules, 1978 and Prisons Act, 1894 on the touchstone of Injunctions of
Islam---Federal Shariat Court observed that prisoner under sentence of death shall be deemed to be
a condemned prisoner only when the death sentence awarded by the trial court has been
confirmed and it becomes executable i.e. when the death sentence has been confirmed under
section 376 of the Code of Criminal Procedure, 1898 and consequently portion of the legal
provisions which authorize the Prison Authorities to treat a prisoner under sentence of death as a
condemned prisoner before confirmation of his sentence i.e. it becomes executable, is declared to
be violative of Injunctions of Islam.

Ayat 60 Sura 22; Ayat 126 Sura 16; Ayat 70 Sura 17; Ayaat 58-59 of Chap.24 Sura an-Nur; Ayat 90
Sura 16; Ayat 53 Sura 39; Babe-Mazalam, Vol. 9 of Sahih Bukahri; Chap.80 Sahih Bukhari; Ayat 185
Sura 2; Ayat 4 Sura 65; Ayaat 5, 6 Sura 94; 94/5-6 (Al-Inshran); Ayaat 233, 286 Sura 2; Ayat 84 Sura
4; Ayat 42 Sura 7; Ayat 62 Sura 23; Ayat 7 Sura 65 and Ayat 286 Sura 2 ref.

(gg) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Prisons and prisoners---Ground realities, challenging problems and role of prisons---Federal Shariat
Court noted ground realities, challenging problems and role of prisons and offered proposals for
solving said problems---Court hoped that necessary steps will be taken by all the Provincial
Governments with the active collaboration of the Secretary Interior---Secretary Interior and the
Provincial Secretaries will send a detailed report on the various issues identified and discussed
should also reach the Registrar, Federal Shariat Court by 31-1-2010 whereafter the court will
examine the steps taken by the Federal and Provincial Governments in the matter---Case will be
taken up in February, 2011 for consideration and necessary action.

Majeeda Bibi v. Superintendent Jail PLJ 1995 Kar. 1; Ayat 6 Sura 13 Ayat 115 Sura 23 ref.

1389
(hh) Pakistan Prisons Rules, 1978---

----R. 304---Constitution of Pakistan (1973), Art.203-D---Juvenile prisoner---When a juvenile prisoner

is released there should be some body to guide him and enable him to enter life as a productive
unit of society---Federal Shariat Court observed that Government can consider amending R.304,
Pakistan Prisons Rules, 1978 whereby Probation Officers, particularly in cases of orphan juvenile
offenders, are deputed to provide necessary assistance---Principles.

Ayat 233 Sura 2; Ayat 9 Sura 4; Ayat 141 Sura 6; Ayat 40 Sura 14; Ayat 31 Sura 17; Ayat 3 Sura 22;
Ayat 74 Sura 25; Ayaat 7-12 Sura 28; Ayaat 13-19 Sura 28 and Ayaat 6-7 Sura 65 ref.

( i i ) Islamic Jurisprudence---

----Prison discipline--- Human affairs--- Guiding principles.

(jj) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Prison discipline---Rights of accused persons/prisoners guaranteed by Constitution, Law,
Precedents, Dean (Religion) and remedies elaborated--- "Fair friar-Connotation.

Ayat 279 Sura 2; Ayat 57 Sura 3; Ayat 22 Sura 14; Farrukh Salim v. The State PLD 1997 Lah. 385;
The State through A.G. N.W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950; Allah Rakhi v. The
S.H.O. and others NLR 2000 Cr.92; 2002 YLR 3832; PLD 2003 Lah. 217; Corpus Juris Secundum Vol.
88 CJS Edn. 1955, p.88; Garret v. State 193 So.452, 458, 187 Miss.441; Column One Vol. 16 Words
and Phrases, 1959 Edn.; Ayat 109 Sura 2, Ayat 134 Sura 3; Ayat 119 Sura 23; Bukhari Muslim and
Mishkat; Majeeda Bibi's case PLJ 1995 Kar. 1 and Ayat 110 Sura 3 ref.

1390
(kk) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Jail

riots---Factors that influence the inmates of penal complexes identified by Federal Shariat Court.

( l l ) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Prison discipline---Jurisdictional aspect: Guiding principles from the text o f Holy Qur'an;
interpretative feature and legal literature on the subject dilated upon by Federal Shariat Court.

Sura 103 Al-Asr; Ayaat 1-3 Sura 103; R.S.N. Co. Ltd. v. Commissioner Chitagong Port PLD 1961
Dacca 412; Broom's Legal Maxims: 10th Edn. Chap. III, p.44; House Building Finance Corporation
v. Rana Muhammad Sharif and 4 others PLD 2000 SC 760 and Prisons Code (Jail Manual) by Dr.
Abdul Majeed Aulakh ref.

( m m ) Pakistan Prisons Rules, 1978---

----Rr. 583, 584, 588, 589, 590 & 591---Prisons Act (IX of 1894), S.46---Constitution of Pakistan
(1973), Art.203-D---Prison offences and penalties---Vires of Rr.583, 584, 588, 589, 590 & 591 of the
Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Rules, 583, 584, 588, 589,
590 & 591 of Pakistan Prisons Rules, 1978 permit the Superintendent to impose penalty by way of
(a) cellular confinement, (b) imposition of link bars (c) imposition of handcuffs and (d) imposition of
link fetters are part of existing prison discipline---If a prisoner is handcuffed o r is in fetters within a
cell as a consequence of the award of punishment by the Superintendent, for violating a prison
offence, then he is precluded from performing ablution, offering compulsory prayers five times a
day; recitation of Holy Qur'an; reading and writing; and is also handicapped in answering the call of
nature apart from facing undue difficulty in performing Tahaarat---Such practice is violative of
injunctions of Islam---Provisions in the Rules, being contrary to the letter and spirit of the Injunctions

1391
of Islam, have a debasing, demeaning and a negative effect on the prisoners and violates human
dignity---No right of appeal is granted against such an inhuman penalty---Federal Shariat Court
declared sub-rules (6), (7), (8), (9) of Rule 583; sub-rules (3), (4), (5), (6) and (7) of Rule 584, Rules
588; 589, 590 and Rule 591 in entirety contained in Chap. 23 of Prisons Rules, 1978 as violative of
Ayaat 43, 110 of Sura 2; Ayat 43 of Sura 4 and Ayat 6 of Sura 5 as well as Ayat I Sura 58 (Al-
Mujadalah) of the Holy Qur'an---Present declaration will take effect from 1-12-2009 and Federal
Shariat Court hoped that necessary provisions will be incorporated and a right of appeal before an
independent tribunal will also be provided to the accused prisoner against major offences---
Inspector General of Prisons of each Province shall intimate in writing, through the Registrar of
Federal Shariat Court, by 31-12-2009, about the grant of right of appeal---In case right of appeal is
not granted the case will be reviewed by Federal Shariat Court in February 2010 to examine the
desirability of declaring the entire Chap. 23 of the Pakistan Prisons Rules, 1978 as violative of
Injunctions of Islam and the judicial precedents---Provincial Governments should therefore make
provision for incorporating a right of appeal in Chapter 23 of the Pakistan Prisons Rules, 1978 as
well in cases involving major penalties or where more than one penalty is sought to be imposed---
Forum of appeal should be the Sessions Judge of the District in whose territorial jurisdiction the
penalty is imposed---Rule should also provide that the punishment will not be executed till the,
disposal of appeal---By providing a legal remedy by way of appeal, the authority awarding the
penalty will be under an obligation to frame a charge, record evidence and write a well reasoned
order after recording statement of the answering respondent.

Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 of Sura 49; PLD 1984 FSC 34; Dr.
Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and
Pakistan v. Public-At-Large PLD 1987 SC 304 ref.

(nn) Pakistan Prisons Rules, 1978---

----R. 84---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue cheque---

Vires of R.84, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal
Shariat Court observed that provision of R.84 of Pakistan Prisons Rules, 1978 is violative of the
various Injunctions of Islam as enumerated in Ayaat 60, 168, 172 and 187 of Chapter 2; Ayaat 4 and
88 of Sura 5; Ayaat 141-142 of Sura 6; Ayat 160 Sura7; Ayat 14 Sura 16; Ayat 81 Sura 20; Ayat 28
Sura 20 and Ayat 15 Sura 34 of Holy Qur'an which makes it abundantly clear that every person is
entitled to use his income in any lawful pursuit /occupation/trade that he likes---Every believer is
legally responsible to defray the expenses of his wife and children---No law or a provision of law can
abridge or adversely affect the legal responsibility of a prisoner to maintain his family---Cheque

1392
book of a prisoner may be retained in safe custody and in order to ensure the genuineness of the
cheque issued by a prisoner, the Superintendent or Deputy Superintendent of prison can be
authorized to counter sign the cheque issued by the prisoner but the condition of seeking
permission from District Co-ordination. Officer for an amount exceeding Rs.5,000, as visualized by
clause (c) of Rule 84, is an unwarranted clog on the exercise of a right which, according to the Holy
Qur'an is an innate ingredient of the legal. capacity of an adult---Cheques can be issued as and
when the prisoner wants provided the amount of money lying in the Bank is not subject-matter of
any offence like cheating, theft, burglary or some other illicit means---Accused or a convict involved
in other offences would be entitled to the concession of issuing cheques or giving advice to the
financial Institution/Insurance Companies---Rule, instead of providing facilities creates difficulties
for the internees which hurdle in itself is violative also of the tradition of the Holy Prophet (p.b.u.h.)
in which the Muslims have been directed to create conditions which make things easy for the
people rather than difficult---Said Rule is violative of the Principle of Usar and Yusar as enunciated in
Ayat 185 Sura 2 and Ayaat S and 6 of Sura 94 of the Holy Qur'an and is an un-necessary obstacle in
earning Rizk-e-Halal which is the fundamental right of every human being---Holy Qur'an exhorts
believers to earn livelihood through legitimate means---Rule 84 shall cease to have effect from 1-
12-2009 during which period necessary amendments or deletion may be made in Chap. 4 of the
Pakistan Prisons Rules, 1978.

(oo) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Prison discipline---Deficiencies of Prisons Manual---Federal Shariat Court identified certain
aberrations in the prevalent prison discipline and observed that said discipline lacks some basic
requirements and drastic amendments are needed to make the existing Prisons Rules/Jail Manual a
real human friendly document and efforts should be made by policy makers to rationalize the penal
system with particular reference to prisons, prisoners and prison discipline---Principles.

(pp) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Uncompensated labour---Vires of practice of such labour on the touchstone of Injunctions of Islam--
-Federal Shariat Court observed that element of uncompensated labour is an extremely regrettable
feature of prison history and such unfair trend and highhandedness is persisting unabated

1393
notwithstanding the fact that said practice violates Injunctions of Islam---Prison officials must
realize that compensation for labour is as vital as is the monthly salary of any government servant---
Steps should therefore, be taken to initiate judicious system in said neglected field; concern must
substitute apathy---Federal Shariat Court further observed that it will not be enough to abolish the
system of uncompensated labour but steps will have to be taken to devise a methodology whereby
uninterrupted work is provided to the prisoners and payments for the work done is also made
regularly---Such an exercise would not be without a policy decision at Government level and its
incorporation in the Prisons Rules---Federal Shariat Court also indicated a three pronged strategy in
this behalf.

Ayat 188 Sura 2; Ayaat 29, 161 Sura 4; Ayat 34; Sura 9; Ayat 70; Sura 39; Ayat 39; Sura 53; Ayat
90, Sura 16 and Section No.826 Chap. 533 Book of Ijara, Sahih Bukhari ref.

(qq) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1972, Art.203-D---Vires

of prison discipline on the touchstone of Injunctions of Islam---Issues agreed upon generally by
counsel of all the parties recorded.

(rr) Pakistan Prisons Rules, 1978---

----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---

Prison discipline---Presumption about knowledge of law---Federal Shariat Court observed that
before a penalty is imposed the transgressor should have been forewarned about the consequence
of his lapses of commission and omission---Human being has a right to know before he is obliged to
do something and to secure a balanced system the citizen should be enable to know the law or
rules---Such certainly involves the duty of the State to educate the masses---Federal Shariat Court
further observed that necessary information about the rights and responsibilities of prisoners
should be readily available in the prisons---Principles.

Ayat 12 Sura 2; Ayat 2 Sura 62; Ayat 15 Sura 17 (Bani Israel); Ayat 43 Sura 16 and Ayat 186 Sura 2

1394
ref.

(ss) Pakistan Prisons Rules, 1978---

---Rr. 329 & 330---Prisons Act (XI of 1894), S.30---Constitution of Pakistan (1973), Art.203-D---
Inhuman living conditions of condemned prisoners---Repugnancy to Injunctions of Islam---Federal
Shariat Court declared the portions of Rr.329 and 330 of Pakistan Prisons Rules, 1978 and S.30 of
the Prisons Act, 1894 which authorise the Prison Authorities to treat a convict as condemned
prisoner before the sentence of death becomes executable, to be repugnant to the Injunctions of
Islam---First December, 2009 is the date on which said declaration will take effect---Federal Shariat
Court hoped that during said period Ch.14 of the Pakistan Prisons Rules, 1978 and S.30 of the
Prisons Act, 1894 will be recast---Prisoner should be deemed to be a condemned prisoner only after
the death sentence awarded to him by Trial Court has been confirmed---Decision of Federal Shariat
Court affecting all the legal provisions, which have been declared repugnant, shall take effect from
1-12-2009 during which period the President of Pakistan in relations to the provisions contained in
the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four
Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take
the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court
Office was directed to send copies of the judgment to the Federal Government, Chief Secretaries
and Secretaries of Home Department of the four Provincial Governments for report and necessary
compliance on issues identified in the judgment.

(tt) Criminal Procedure Code (V of 1898)---

---S. 382-B---Constitution of Pakistan (1973), Art.203-D---Prisoner in custody---Period of

imprisonment to be considered while awarding sentence of imprisonment---Repugnancy to
Injunctions of Islam---Federal Shariat Court observed that period spent by a prisoner in custody
during and before the initiation of the trial shall be automatically deducted from the terms of
sentence awarded to him as a result of his conviction---Such concession will be independent of any
remission that a prisoner might as well earn during the period of his incarceration---Said benefit
shall be available to such persons who will be serving their sentence on 1-12-2009 if they were not
awarded the benefit already granted by the Trial Court or Appellate Court---Decision of Federal
Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take
effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions

1395
contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of
the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978
shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---
Court office was directed to send copies of the present judgment to the Federal Government, Chief
Secretaries and Secretaries of Home Department of the four Provincial Governments for report and
necessary compliance on issues identified in the judgment.

(uu) Pakistan Prisons Rules, 1978---

----Rr. 583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591---Constitution of Pakistan (1973),
Art.203-D---Prison offences and prescribed penalties---Repugnancy to Injunctions of Islam---Federal
Shariat Court declared Rr.583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591 in entirety, as
violative of Injunctions of Islam---Such part of declaration will take effect from 1-12-2009 unless
necessary amendments, as indicated, are made by respective Governments before the target date--
-Inspectors-General of Prisons have been directed to submit report in the Federal Shariat Court by
31-12-2009---In case the right of appeal, on major offences, is not provided the matter will be
reviewed in February, 2010 by the Court to examine the feasibility of declaring the entire Chapter
23 of the Pakistan Prisons Rules, 1978 as repugnant to Injunctions of Islam and judicial precedents---
Decision of Federal Shariat Court affecting all the legal provisions, which have been declared
repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in
relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure,
1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the
Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity
with the Injunctions of Islam---Court office was directed to send copies of the present judgment
to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four
Provincial Governments for report and necessary compliance on issues identified in the judgment.

Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 Sura 49; PLD 1984 FSC 34; Dr.
Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and
Pakistan v. Public-At-Large PLD 1987 SC 304 ref.

(vv) Pakistan Prisons Rules, 1978---

1396
----R. 147---Prisoners Act (III of 1900), S.29---Constitution of Pakistan (1973), Art.203-D---
Unfettered powers of the Government and the Inspector-General of Police to transfer any
prisoner from one prison to another within the Provincial borders---Repugnancy to Injunctions of
Islam---Federal Shariat Court declared R.147, Pakistan Prisons Rules, 1978 and S.28, Prisoners Act,
1900 violative of the Injunctions of Islam to the extent stated in the judgment---Decision of
Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall
take effect from 1-12-2009 during which period the President of Pakistan in relation to the
provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the
Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan
Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the
Injunctions of Islam---Court office was directed to send copies of the present judgment to the
Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial
Governments for report and necessary compliance on issues identified in the judgment.

(ww) Pakistan Prisons Rules, 1978---

----R. 1078---Constitution of Pakistan (1973), Art.203-D---Employment of dismissed government

servants by way of special sanction of the Government---Repugnancy to Injunctions of Islam---
Federal Shariat Court declared R.1078 of Pakistan Prisons Rules, 1978 to the extent of such
employment to be violative of Injunctions of Islam---Decision of Federal Shariat Court affecting all
the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during
which period the President of Pakistan in relations to the provisions contained in the Prisoners
Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in
relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the
necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office
was directed to send copies of the present judgment to the Federal Government, Chief
Secretaries and Secretaries of Home Department of the four Provincial Governments for report
and necessary compliance on issues identified in the judgment.

(xx) Pakistan Prisons Rules, 1978---

----R. 84(a)(c)(d)---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue

cheques-Repugnancy to Injunctions Islam-Federal Shariat Court declared R.84(a)(c) & (d) of the
Pakistan Prisons Rules, 1978 to the extent mentioned in the judgment, to be against Injunctions

1397
of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been
declared repugnant; shall take effect from 1-12-2009 during which period the President of
Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of
Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned
legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such
provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of
the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home
Department of the four Provincial Governments for report and necessary compliance on issues
identified in the judgment.

(yy) Pakistan Prisons Rules, 1978---

----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Repugnancy to

Injunctions of Islam---Federal Shariat Court declared R.690 of the Pakistan Prisons Rules, 1978 to
be repugnant to Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal
provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which
period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900
and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to
the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to
bring such provisions in conformity with the Injunctions of Islam---Court office was directed to
send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries
of Home Department of the four Provincial Governments for report and necessary compliance on
issues - identified in the judgment.

(zz) Federal Shariat Court (Procedure) Rules, 1981---

----Chap. 2, R.7 & Chap. 3---Federal Shariat Court directed that Bench Registry of the Court at
Islamabad and all the four Provincial Headquarters shall strictly observe the directions contained in
Rule 7, Chap. 2 as well as Chap. 3 .of the Federal Shariat Court (Procedure) Rules, 1981 at the time
Shariat Petitions/Shariat Miscellaneous Applications/Appeals and Revisions are filed.

Dr. Muhammad Aslam Khakhi, Capt. (Retd) Mukhtar Ahmed Sheikh and Master Ejaz Hussain,
Petitioners (in person).

1398
Hafiz S.A. Rehman, Standing Counsel, Iftikhar Hussain Chaudhry, Standing Counsel, Dr. Abdul Malik
Irfani, Muhammad Aslam Uns, Sardar Abdul Majeed, Standing Counsel, Mrs. Naheeda Mehboob
Ellahi, Standing Counsel, Rizwan Ahmed Siddiqui, Deputy Attorney-General with Asif Mangi, Zahoor
Hussain Soomro, Section Officer Human Rights Division, Zahid Hussain Soomro, Section Officer
Human Rights Division Ministry of Law, Amanat Parvaiz Bhatti, Deputy Secretary, Home
Department, Government of Punjab, Falaq Sher, S.O. Home Department, Government of Punjab,
Haseeb Shah Jehan, S.O. Home Department Government of Punjab and Ch. Liaqat, Deputy Secretary
(Judicial) Home Department, Government of Punjab for Federal Government.

Muhammad Aslam Uns, on behalf of A.-G. Punjab, Rana Fazal-ur-Rehman, Mrs. Rukhsana Malik,
Assistant Advocate-General, Shafqat Munir Malik, Additional Advocate-General, Haseeb Shah Jehan,
Section Officer Home Department, Government of Punjab, Mehboob Ahmed Khan, Advocate for
Human Rights Commission, Ch. Liaqat, D.S. (Judicial) Home Department and Ch. Saleem Murtaza
Mughal, Assistant Advocate-General for Province of Punjab.

Muhammad Sarwar Khan, Additional Advocate-General on behalf of A.-G. Sindh, Munir Ahmed
Khan, Additional A.-G, Miss. Qamar-un-Nisa, Abdul Waheed Siddiqui, Muhammad Shoaib Abbasi,
Arshad H. Lodhi, Assistant Advocate-General, Fareed-ul-Hassan, Assistant Advocate-General, Munir
Ahmed Khan, Additional Advocate-General, Qasim Mir Jat, Assistant Advocate-General for Province
of Sindh.

Mr. Aziz-ur-Rehman, Advocate, Haji Tasleem Hussain, Fazal-ur-Rehman Rana, with Noor-ul-Haq S.O.
(Litigation), Sindh GAD Department, Muhammad Sharif Janjua, Pir Liaqat Ali Shah, Advocate-
General, Sardar Shaukat Hayat, Assistant Advocate-General, Qari Abdul Rashid, Standing Counsel,
Muhammad Saeed Shangla, Additional Advocate-General, Section Officer (Litigation) S&GAD
Department N.-W.F.P., Muhammad Saeed, Acting Advocate-General, N.-W.F.P. Sohail Akhtar, Law
Officer for Government of N.-W.F.P. and Noor-ul-Haq, Section Officer, (Litigation) Sand GAD
Department, N.-W.F.P. for the N.-W.F.P.

Ch. Ejaz Yousaf, Additional Advocate-General, Malik Sikandar Khan, Advocate-General, Qari Abdul
Rashid, Mehmood Raza Khan, Additional Advocate-General, Azam Khan Khattak, Additional
Advocate-General, Salahuddin Mengal, Advocate-General, Muhammad Shoaib Abbasi, and

1399
Amanullah Jaween, Assistant Advocate-General for the Balochistan.

Dr. Allama Muhammad Hussain Akbar and Dr. Muhammad Yousaf Farooqi, Juris consults.

Officers of Prisons (Punjab, Sindh, N.-W.F.P. and Balochistan):---

(1) Tipu Sultan, Assistant Superintendent Adyala Jail, Rawalpindi.

(2) Raja Abdul Qayyum, Law Officer I.G. Jail Khana Jat, Punjab.

(3) Shahid Saleem Baig, Superintendent Jail, Rawalpindi.

(4) Arshad, Assistant Superintendent, Adyala Jail, Rawalpindi.

(5) Sarmad Tehmoor, Assistant Superintendent Central Jail, Rawalpindi.

(6) Muhammad Yamin Khan, Inspector General Prisons Sindh.

(7) Ajmal Khan, Deputy Superintendent, Central Jail, Peshawar.

(8) Masood-ur-Rehman, Deputy Superintendent Jail, Peshawar.

1400
 (9) M. Asghar Munir, Deputy Superintendent, Adyala Jail, Rawalpindi.

Dates of hearing: 12th November, 1992, 24th May, 17th October, 1993, 3rd April, 1994, 26th
November, 1995, 29th June, 1998, 31st May, 1999, 29th March, 5th June, 24th October, 2000, .10th
November, 2003, 27th, 29th April, 10th May, 14th April, 31st May, 3rd June,. 2004, 23rd January,
3rd April, 4th June, 11th September, 12th September, 2007, 13th February, 12th March, 27th
March, 9th April, 30th April, 21st May, 3rd September, 22nd October, 11th November, 2008, 14th,
29th January, and 26th August, 2009.

JUDGMENT

SYED AFZAL HAIDER, J.---

And they make provision

Out of love (of Allah)

For the Indigent,

The Orphan and

The Captive.

1401
Al-Qur'an: Ayat 8 Sura 76 AL-INSAN

INTRODUCTORY

This consolidated judgment will dispose of four Shariat Petitions and Five Shariat Miscellaneous
Applications which have been clubbed together because each petition seeks to challenge one or the
other legal provision relating to Prisons, Prisoners and Prison Discipline. The impugned provisions as
well as the titles of four Shariat Petitions and five Shariat Miscellaneous Applications are detailed
below in sections A and B respectively for reference sake.

SECTION A: SHARIAT PETITIONS

SHARIAT PETITIONS
(i) Shariat Petition No.61/I of 1992
(filed on 19-10-992)
Dr. M. Aslam Khaki v. Federation of Pakistan
and Others
(ii) Shariat Petition No.62/I of
(filed on 1-11-1992)
Dr. M. Aslam Khaki v. Federation of Pakistan
and others
(iii) Shariat Petition No.12/I of
Master Ijaz Hussain v. Government of
PROVISIONS CHALLANGED
Rules 307, 314 of Chapter 13 entitled:
Women Prisoners and Children.
Rules 935, 939 of
Chapter 39 entitled: Superintendent.
Rule 1002 of Chapter 41 entitled: Deputy
Superintendent.
Rules 1180, 1181 of Chapter 46 entitled:
Lady Superintendents and Women Warders.
Rule 1004 of Chapter 41 entitled: Deputy
Superintendent.
Rules 225, 242, 243, 1992 244, 245 248, 249
of Chapter 9 entitled: The Classification and
Separation of Prisoners.
Rules 250, 252, 253, 254, 255, 256, 257, 261,
262, 263, 264, 265, 266, 267 of Chapter 10
entitled:
Superior Class Prisoners.
Rules 180, 181 Chapter 7 entitled: Transfer
of Prisoners.
Rule 1078 of Chapter 1999 (filed on 31-3-
1999) 44 entitled: General Rules Relating to
Prison Officers.

1402
Pakistan.
(iv) Shariat Petition No.4/I of2004 filed
originally on 2004 and refiled on 23-12-2008
Dr. M. Aslam Khakhi v. Federation of
Pakistan and others
Section 30(2) Prisons Act, 1894 and Rules
624(f), 633 of Chapter 25 entitled: Prisoners
in cells.
Reference to Rules in the above noted
Petitions or in the body of this Judgment
means Pakistan Prison Rules, 1978.

2. The first cause to be agitated on the subject of prison discipline was registered as Shariat Petition
No.61/I of 1992. It was moved on 18-10-1992 and admitted to regular hearing on 12-11-1992. This
petition challenged Rules 307, 314, 935, 939, 1004, 4180 and 1181 of Pakistan Prisons Rules on
the ground that under Islamic provision no woman can be placed in custody of a Ghair-Mahram
and the conditions of service which could lead to indecency would also be forbidden. Shariat
Petition No.62/I of 1992 was filed on 1-11-1992 and admitted to regular hearing on 17-10-1993. It
sought to challenge Rules 180, 181, 225, 242, to 245, 248 to 250, 252, to 257, 261 to 267 as well
as section 59 of the Prisons Act, 1894 on the ground that classification of prisoners into A, B and C
category was violative of Injunctions of Islam. No injunction was however mentioned. Shariat
Petition No.12/I of 1999 was filed on 22-3-1999 and admitted to regular hearing on 5-6-2000. This
petition impugned Rule 1078 which prohibits employment of dismissed Government Servant and
previous convicts. It was urged that earning of Rizq-e-Halal i.e., legitimate livelihood is the right of
every person. No injunction of Islam was shown to have been violated by this provision. Shariat
Petition No.4/I of 2004 was moved on 23-12-2008 and placed before the Court at Karachi on 14-1-
2009 when, after admission, it was ordered to be heard alongwith Shariat Petition No.61/I of
1992. The subject matter of Shariat Petition No.4/I of 2004 is section 30(2) Prisons Act, 1894 (Act
IX of 1894) which relates to prisoners under sentence of death commonly known as Condemned
Prisoners. During the course of arguments on other petitions we had already on our own motion,
before the filing of Shariat Petition No.4/I of 2004 on 14-1-2009, taken notice of section 30 of the
Prisons Act, 1894 as a whole along with the related provisions contained 'in Chapter 14 of the
Prison Rules. This was the time when the issues pertaining to the controversy in hand were being
re-structured. Issue No.VI in fact related to the Condemned Prisoners. We had also taken Suo
Motu notice of some other provisions. The judgment in these petitions was to be announced
before June, 2009 when it transpired that regular notices had not been formally issued to the
parties in matters wherein the Court, on its own motion, had decided to examine certain legal
provisions. Notices, as directed, were, therefore, issued on 20-6-2009 for further hearing in
August 2009. Further hearing in these connected mattes was deemed necessary firstly for the
reason that a few months had elapsed when we last heard arguments in these petitions and the
judgment had not been announced and secondly on the ground that we also wanted to hear the
view point of parties as regards the subjects in which this court had, during the course of

1403
arguments, taken notice on its own motion. Formal legal processes had been issued in this regard.

Section B: Shariat Miscellaneous Applications.

3. During the pendency of the above mentioned Shariat Petitions, following Shariat Miscellaneous
Applications were also moved in the Federal Shariat Court to impugn certain provisions of law
with different prayers. The description of these applications is tabled below:---

Sh. Miscellaneous application No. Provision Challenged

(i) Sh. Misc. App. No.21/I of 1995
(filed on 9-4-1995)
Master Ijaz Hussain v. Government of
Pakistan
(ii) Sh. Misc. App. No.16/I of 1997 (filed on
7-7-1997)
Master Ijaz Hussain v. The State (filed on 7-
7-1997)
Master Ijaz Hussain v. The State
(iii) Sh. Misc. App. No.19/I of 1997(filed on
23-8-1997)
Capt. Retd. Mukhtar Ahmad Sheikh v.
Federal Government of Pakistan
(iv) Sh. Misc. App. No.10/I of 1998(filed on
22-7-1998)
S.P.No.61/I of 1992 Dr. M. Aslam Khaki v.
Federation of Pakistan and others
(v) Sh. Misc. App: No. 11/I of 1998(filed on
23.07.1998)
Section 382-B of the
Code of Criminal Procedure and other
matters.
Rule 546 of Chapter 22 entitled: Letters and
Interviews and Rules 690 of Chapter28
entitled
Discipline And Daily Routine.
Rules relating to classification prisoners
into A, B & C category. Chapters 2 and 10 of
the Rules entitled: Classification of Prisons;
Superior Class Prisoners respectively.
This application seeks amendment in Sh.
Petition No.61/I of in 1992. Rules 307(i) and
314 of Chapter 13 entitled: Women
Prisoners and Innocent Children.
This is an amended petition and impugns
Rules 242(b), 245(d), in (e), (f) 248(i)(ii) of
Chapter 9 entitled: The Classification and

1404
 Separation of Prisoners.
S.P.No.62/I of 1992 Dr. M. Aslam Khaki v.
Government of Pakistan and others

4. The legal instruments challenged through these Shariat Miscellaneous Applications as well as
the ground of attack are being mentioned below very briefly:--

(i) Shariat Miscellaneous Application No.21/I of 1995 was moved by prisoner Master Ijaz Hussain
from Central Jail, Faisalabad, on 9-4-1995 in which he raised the following 11 contentions for
consideration of the Federal Shariat Court:---

(a) The use of Bar Fetters is un-constitutional, un-Islamic and is violative of the Islamic
principles of human dignity; (Bar fetters are no more in use)

(b) Prisoners undergoing long terms sentences be released on parole for two months every
year for the performance of conjugal rights and looking after family affairs; (Provision
already incorporated).

(c) For grant benefit of section 382-B of the Code of Criminal Procedure should be given
invariably to the prisoners; (Notice taken)

(d) Judicious and equal grant of remissions to prisoners on auspicious days; (Already
applicable).

(e) All the Government employees who are convicted should get suspension allowance till
such time that their appeals are finally decided by the Supreme Court; (Does not concern
Prison Rules).

1405
 (f) While awarding concurrent sentence there should be no discrimination between the poor
and influential prisoners;

[Note: This question was not raised at the time of arguments. However the case of Bashir
and 3 others v. The State PLD 1991 Supreme Court 1145 may be seen].

(g) The execution of the sentence awarded to the prisoners by the Superintendent of Jail
should not be executed till it is confirmed by the District and Sessions. Judge concerned;
(Notice already taken).

(h) The District and Sessions Judge should visit Prisons in their jurisdiction every month to
redress the genuine grievances of the prisoners; (This is already being done).

(i) Proper arrangements should be made outside the prison house for those who come to
visit the prisoners; (Notice already taken).

(j) Free legal aid should be provided to the prisoners at the initial stage in the Supreme
Court of Pakistan when petition for special leave to appeal is moved; (Notice already taken).

(k) Maintenance allowance from Bait-ul-Mal be given to the dependents of needy prisoners.
(Does not relate to Prison Rules).

[Note: The fate of each contention mentioned above has been under lined in brackets]

i. This application was admitted in Islamabad on 10-7-1997 by a Full Bench of the Federal Shariat
Court. Written arguments were submitted by some convicts in support of these contentions in
which it was contended that Islamic teachings enjoin equality and it was further stated that the

1406
Holy Prophet (p.b.u.h.) once let off a prisoner of war without demanding compensation. It was
therefore contended that the Zakat fund maintained officially by State should be used for securing
release of the prisoners. This aspect will be discussed in Segment Fifteen.

ii. Shariat Miscellaneous Application No.16/I of 1997 was also moved by Master Ijaz Hussain on 7-7-
1997 from District Jail, Faisalabad to challenge Rules No.546 and 690 of the Jail Manual. Rule
No.546 makes it mandatory for the--Superintendent Jail to censor letters sent by or addressed to a
prisoner. No.690 deals with list of articles which are prohibited in the prisons. However the
petitioner has not mentioned verses of Holy Qur'an or Sunnah which have been violated by these
two rules. This topic is the subject matter of discussion in Segment Three of this judgment.

iii. Shariat Miscellaneous Application No.19/I of 1997 was moved by Capt. (Retd.) Mukhtar Ahmad
Shaikh on 23-8-1997. It is in fact a letter requesting the Federal Shariat Court to examine the
question of classification of prisoners into class A, B and C because the Pakistan Law Commission
did not deal with this issue in its report on jail reforms. There is no reference to any verse of Holy
Qur'an or Sunnah in support of the contention that the classification of prisoners in class A, B and C
is ultra vires the Injunctions of Islam. This topic will be discussed in Segment Two.

iv. Shariat Miscellaneous Application No.10/I of 1998 in Shariat Petition No.61/I of 1992 was moved
by Dr. Muhammad Aslam Khaki on 14-7-1998. This Miscellaneous Application does not challenge
any existing provision of the prison discipline but it seeks to propose amendments in Rules 307(i)
and 314.

v. Shariat Miscellaneous Application No.11/I of 1998 was moved on 15-2-1997 by Dr. M. Aslam
Khaki to amend the main Shariat Petition No.62/I of 1992 with the object of seeking a declaration
that Rules 242(b), 245(d), (e) and (f) as well as Rule 248 (i) and (ii) are repugnant to the Injunctions
of Islam. These legal provisions deal with classification of prisoners into class A, B and C as well as D
the classification of under-trial prisoners. The contentions raised therein will be discussed in detail
in Segment Two.

ISSUES INVOLVED

1407
5. The above mentioned Shariat Petitions and Miscellaneous Applications were heard on more than
20 occasions spread over a period of 16 years. During this period certain obstinate questions
relating to prison discipline also became subject matter of public debate at socio-political plane. In
order, therefore, to resolve the controversy agitated before us through these petitions, two steps
were taken: firstly, to consider the prison discipline as amended upto date instead of scrutinizing
the prison discipline as it prevailed in 1992 when these petitions were moved and secondly to strike
consensus issues afresh with the active assistance of the learned counsel for the parties, in order
not only to understand the scope of the problem agitated before us but also to make effort to
define the limits of the controversy in order to finally determine the various questions under
review. The issues were therefore refrarned. Supplementary issues during the course of arguments
cropped up which are also being incorporated after mentioning the re-framed issues.

(i) Whether a prisoner be allowed to perform conjugal rights in the prison?

(ii) Whether the female prisoners be allowed to remain under control and conduct of the
male staff of Jail?

(iii) Whether various classes i.e. A, B, C in the Jail be allowed to prisoners on the basis of
their status, position, educational and financial background?

(iv) Whether remission of sentence be granted to prisoners on festival and special

occasions?

(v) Whether financial assistance and remuneration for labour of prisoners be provided to
the families of prisoners?

(vi) Whether a convicted person sentenced to death whose appeal has not been disposed of
for long be allowed to suffer double punishment of imprisonment?

1408
 (vii) Whether all prisoners who have not been given benefit under section 382-B, of the
Code of Criminal Procedure should by a general order be accorded benefit thereunder?

(viii) Whether the provision of section 35 of the Code of Criminal Procedure be made
mandatory so that sentences awarded to prisoners in two or more sections under one F.I.R.
be made to run concurrently?

(ix) What facilities and conveniences be provided to the prisoners and their families?

(x) What measures be taken for rehabilitation, reformation and character building of
prisoners?

6. At the close of lengthy arguments spread over years the following questions were however
considered germane to the ten issues already under consideration.

SUPPLEMENTARY ISSUES

(a) Whether the punishment by way of rigorous imprisonment is not opposed to Islamic
Injunctions?

This point is not the subject-matter of any Shariat Petition.

(b) Whether uncompensated hard labour, as a consequence of imposition of the

punishment of rigorous imprisonment by criminal courts, can be exacted from a convict
without violating Ayat 29 Sura 4 of Holy Qur'an and the tradition "The wages of a labour
should be paid immediately" quoted by Ibn Maja in the Book on Mortage?

1409
Issue answered in this Judgment. See Segment 19

(c) What are the rights of an accused before and after the verdict has been recorded?

Issue answered in this Judgment. See Segment 15

(d) Whether a system be not evolved on the basis of Islamic Insurance permissible by Islamic
Injunctions, to compensate the victim in advance and then deduct the same from the wages
in instalments on monthly basis from the wages that will be earned by a prisoner within
prison precincts?

Proposal given: See Segment 19

(e) Whether a convict can be declared as condemned prisoner the moment a trial court
announces capital punishment upon him notwithstanding the fact that the sentence is
subject to confirmation by the High Court? and he still has a statutory right of appeal against
confirmation of his conviction and sentence by the High Court;

Issue answered in this judgment. See Segment 13

(f) Whether the isolation imposed upon an already incarcerated condemned convict while
confined in a death cell is at all justified in the light of Islamic Injunctions? and

Issue answered as above

1410
(g) Whether the current amount of Rs.33 allocated by the Prison Department as dietary
money per person per diem is adequate to sustain a normal healthy person? Reference Ayat
8 Sura 76 (Al-Dahr).

Issue answered in this judgment. See Segment 11

(h) Whether the sentences awarded to persons convicted under different counts in relation
to the same crime report should not be made concurrent by operation of law.

Issue not raised in any petition.

(i) Whether Prison Department should not be under administrative control of Judiciary

Suggestion made in Segment 14

(j) What are the main causes of Jail Riots?

Mentioned in Part-B of Segment Fifteen of this Judgment.

(k) Issue No. VI relating to Condemned Prisoners was recast to read as follows:---

"Whether the person, sentenced to death by the trial court, should continue being treated
as a Condemned Prisoner immediately after the trial court has announced its verdict and

1411
 before his appeals or mercy petitions are decided and thereby subject him to additional
hardships and strict surveillance in squalid and overcrowded cells?"

(l) In view of notices sent in the related matters the following issues were also struck:---

(a) What are the causes of Jail riots?

(b) Are the Guiding Principles (the Permanent Values), enunciated in the Holy Qur'an, not
covered by the scope of the term Injunctions of Islam? Can these principles be identified?

(c) What are the problems associated with prison discipline and what are the possible
solutions?

(d) What are the rights of accused/prisoners in our legal system.

7. We decided to deal with the four Shariat Petitions and five Shariat Miscellaneous Applications
through this consolidated Judgment as the substance of all these petitions is the same i.e., prison
discipline. Though the provisions actually challenged before us by the applicants have been picked
up from different chapters of Prison Rules, The Prisons Act, 1894 and the Code of Criminal
Procedure, 1898, yet during the course of arguments copious reference was made to various
chapters of the Rules and laws relating to criminal administration of justice. For all practical
purposes we had to go through various legal instruments in force in Pakistan in addition to the
Pakistan Prison Rules, 1878 while deciding these eleven connected matters.

8. During the hearing of these petitions we had the opportunity to go through some of the
International documents relevant to the controversy before us. The reasons for considering the
contents of these instrument and making a reference to these International Documents in this
judgment are firstly that a larger Bench of the Federal Shariat Court through this Judgment will, for
the first time in our judicial history go through the entire provisions of Prison Discipline in Pakistan;

1412
secondly to enable individuals, groups and authorities, working in different capacities towards
achieving the goal of a better and human friendly prison disciple, to appreciate and profit from the
views adopted and steps taken at global level by renowned jurists and friends of humanity on a long
neglected chapter of the administration of criminal justice; thirdly a perusal of these documents will
certainly enable the policy making Executive and the law making Legislature to comprehend not
only the dimensions of the problem but will assist them in appreciating the mode and manner in
which the leaders of public opinion in different jurisdictions the world over, succeeded in
introducing human friendly measures in the once very oppressive and degrading discipline; and
fourthly, the need to watch, examine and adopt new developments in contemporary societies is a
religious obligation of every Muslim in view of the following precepts of the Holy Prophet PBUH,
which must be kept in mind whenever amendments are about to be incorporated in the existing
legal code.

(a) Wisdom (erudition) is the lost treasure of a believer. He should acquire it (whenever and)
from wherever it is available. Hadees No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja.

(b) Acquistion of knowledge is obligatory for every Muslim (male or female). Reference Ibn-
e-Maja, Volume 1 (urdu translation), page 143 Chapter ILM.

(c) Muslims must acquire knowledge even if he has to travel to China because acquisition of
knowledge is obligatory for every Muslim man and woman. So long as a person is busy in
the pursuit of knowledge the angels keep their wings spread for the seeker of knowledge.
Reference Hadith No.28697 Bab-ul-Ilm, Volume 10 Kunz-ul-Ummal.

(d) Whenever Advice/Information is sought from you, it should be given (honestly). Ibn-e-
Maja Volume 3. Chapter on Advice.

For the sake of reference we have detailed below the list of various legal instruments relating to
Prisons, Prisoners and Detenues applicable in Pakistan in section A and the list of International
documents relatable to these subject have been noted in section B. To avoid narration of the
lengthy text, the titles of relevant legal instruments alone have been mentioned.

1413
A. Pakistani Laws

1. Regulation III of 1818 for the confinement of State prisoners.

2. The Prisons Act, 1894.

3. The Prisoners Rules, 1894.

4. The Reformatory School Act, 1897.

5. Chapter VIII of the Code of Criminal Procedure, 1898 (Chapter 13).

6. The Prisoners Act, 1900.

7. Provisions of the Civil Procedure Code, 1908.

8. Lunacy Act, 1912.

9. The Punjab Borstal Act, 1926.

10. Restriction of Habitual Offender (Punjab) Act, 1918.

11. Good Conduct Prisoners Probationers Release Act, 1926.

12. Superintendence and Management Adaptation of Pakistan Laws Order, 1947.

13. The Probation of Offenders Ordinance, 1960.

14. The West Pakistan Maintenance of Public Order Ordinance, 1960.

15. The Probation of Offenders Rules, 1961.

16. West Pakistan Public Order Detention Rules, 1962.The Defence of Pakistan Rules, 1971.

17. Article 10 of the Constitution of Pakistan, 1973.

18. Pakistan Prisons Rules, 1978.

19. Execution of the Punishment of Whipping Ordinance, 1970.

20. The Punjab Execution of the Punishment of Whipping Rules, 1979.

1414
 21. Sindh Execution of the Punishment of Whipping Rules, 1986.

22. Abolition of Punishment of Whipping Act, 1996.

23. Prisons (NWFP) (Amendment) Act, 1996.

24. Juvenile Justice System Ordinance, 2000.

25. Juvenile Justice System Rules, 2001.

26. Balochistan Ordinance No.VII of 2001.

27. Punjab Ordinance XXXIX of 2001.

28. Punjab Ordinance XL of 2001.

29. Women Protection Ordinance, 2007.

30. Offences under various Court Martial Regulation.

31. Pakistan Law Commissions Report No.80 on Jail Reforms.

32. Rules and Orders of the Lahore High Court Lahore, Volume III, Chapter 27: Judicial and
Police Lock-ups.

33. Report of Pakistan Law Commission on Jail Reforms.

B. Related International Documents

1. Charter of the United Nation, 1945.

2. The Criminal Justice Act, 1948 (U.K.).

3. Universal Declaration of Human Rights, 1948.

4. European Convention for the Protection of Human Rights, 1950.

5. International Covenant on Civil and Political Rights, 1966.

6. Declaration on Territorial Asylum, 1967.

1415
7. Declaration on the Protection of all Persons from Tortuous and other Cruel, Inhuman or
Degrading Treatment or Punishment, 1976.

8. Standard Minimum Rules for the Treatment of Prisoners, 1977.

9. Code of Conduct for Law Enforcement Officials, 1979.

10. African Charter on Human and Peoples Rights, 1981.

11. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, 1984.

12. European Convention for the prevention of tortuous and Inhuman or Degrading Treatment
or Punishment, 1987.

13. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985.

14. Declaration of basic Principles of Justice for Victims of Crime and abuse of power, 1985.

15. Basic Principles for the Treatment of Prisoners, 1990.

16. Protocol to the American Convention on Human Rights to Abolish Death Penalty, 1990.

17. African Charter on the Rights and Welfare of the Child, 1990.

18. Cairo Declaration on Human Rights in Islam, 1990.

19. Protocol No.1 to the European Convention for the Prevention of Tortuous and Inhuman or
Degrading Treatment or Punishment, 1994.

20. Arab Charter on Human Rights, 1994.

21. Crime and Criminal Procedure (Escape and Rescue), U.S.A.

A resume of these instruments has been tabled in the appendix.

Meaning of the term Repugnant

1416
9. The Federal Shariat Court has to examine and decide the question whether or not a provision of
law, or a law which includes any custom or usage having the force of law, is repugnant to the
Injunctions of Islam. It is called upon, therefore, to see firstly whether the stated Injunction of Islam
covers the impugned provisions of law or both are related inter-se and secondly whether the
provision under challenge as well as the touch-stone i.e., the Injunctions of Islam can be read and
construed together, with a view to harmonizing them; and thirdly whether the impugned legal
provision cannot be given effect to without violating the letter or spirit of the Injunctions of Islam. If
the NASS i.e. the Injunctions of Islam declares an act or omission to be a sin or something
abominable, then the impugned legal provision; permitting such a thing, would certainly be covered
by the mischief of repugnance.

If it is not possible to retain the impugned legal provision along with the Injunctions of Islam, then
the Court would proceed to declare the legal provision under review to be offensive to the
Injunctions of Islam. It is therefore imperative to know the meaning of the term repugnant/
repugnance because this word plays a pivotal role in the exercise of jurisdiction.

10. The word Repugnant has however not been defined in the Constitution. Meaning of this word
has also not been given in the General Clauses Act. In order to understand its meaning we have no
option but to consult the dictionaries and those precedents where the meanings of this word have
been explained.

Dictionary meanings.

(i) extremely unpleasant or offensive MacMillan: English Dictionary.

(ii) disagreeable or offensive; distasteful; objecting averse, opposed; B inconsistent,

contrary; The World Book Dictionary.

(iii) strong feeling of dislike or disgust about something. Incompatibility, of ideas,

statements etc; the synonym suggested is repulsive.

1417
 Oxford Dictionary.

(iv) The urdu meaning of the word repugnant is (Tanafur) (Karahat): Dictionary of
Terms/English-Urdu Volume 3 page 1472, 1985 Edition Printed by Urdu Science Board 299
Upper Mall, Lahore. The word "repugnance", according to Kitabistan's New Millennium
Practical Dictionary English English-Urdu by B.A. Qureshi means: Nafrat, Napasand The word
"repugnancy" according to law Dictionary English Urdu published recently by National
Language Authority Pakistan (based 'upon the famous Black's Law Dictionary). means:
Tanaqaz, Zid, Adum M u t a b q a t

(v) The state of being opposed, highly distasteful, offensive, objectionable, contrary. (The
Lexicon Webster Dictionery Volume II, p. 815).

(vi) That which is contrary to what is stated before (Wharton's Law Lexicon).

(vii) Repugnant: "Repugnant to" really means "inconsistent with" and when they cannot
stand together at the same time, and one law is inconsistent with another law when the
command or power or provision in the one law conflicted directly with the command or
power or provision in the one law conflicted directly with the command or power or
provision in the other. Vishnu Bhattathiripaid v. Poulo, 1953 Ker. L. T. 238: I.L.R. 1952 Trav-
Co. 670: A.I.R. 1953 Trav-Co. 327 (D.B.)

(ix) Repugnancy is an inconsistency or conflict with something else. Presson v. Presson, 147
p. 1081, 1082, 38 Nev. 203 (Words and Phrases - Volume 37 page 90).

11. The question, therefore, that the impugned provision of law would be repugnant to the
Injunctions of Islam only if both of them relate to the same subject matter is not very relevant
under Article 203-D or the latter part of Article 227 of the Constitution for the reason that the
Injunctions of Islam exist prior in time to the legal provision under question. In other words, the

1418
man-made law has to conform to the pre-existing NASS/Injunctions of Islam. From the wordings of
Article 203-D of the Constitution it is abundantly clear that in case of repugnancy, the impugned law
or provision of law shall give way to the Injunctions of Islam to the extent of such repugnancy. In
other words, the impugned law shall not prevail and declared void without legal effect. Moreover
the interpretation of a NASS cannot be static at all because a NASS is a Divinely acknowledged
source of guidance till eternity. The constitutional requirement of conformity, which for
convenience sake and for the purpose of this judgment, may be termed as Theory of Conformity,
under Article 227 of the Constitution is that the laws must conform to the Injunctions of Islam. This
theory will pre-suppose that the impugned law and the NASS/Injunction of Islam must not
necessarily relate to the same subject. The letter as well as the spirit of the NASS/Injunction of
Islam' would be a relevant factor. It should not be violated at all. The Injunction of Islam is a
permanent value whereas the legislative instrument is variable. Furthermore the application and
interpretation of an Injunction of Islam can neither be limited to a particular time or a clime or for
that purpose to any particular provision of law. The Injunctions of Islam or NASOOS are meant to
guide in all ages and situations. The possible interpretations of NASOOS cannot be predicted.

12. However according to this theory there can be no repeal of impugned law by implication but a
declaration based upon reason must be made under Article 203 D(2)(3) of the Constitution stating
clearly that the provision of law under challenge, is repugnant to a given NASS/Injunction of Islam
and till such time that the required declaration is not made under Chapter 3A of the Constitution,
the presumption of validity of the impugned law, or the provision of law will continue unaffected. In
accordance with this Theory of Conformity it would be irrelevant whether the impugned law is
general or special in nature or is Federal or Provincial. Even a custom having 'the force of law,
existing before or after the commencing day of the Constitution of the Islamic Republic of Pakistan,
would be valid and enforceable unless struck down in accordance with the procedure prescribed
under Chapter 3A of the Constitution.

13. The net result of the discussion is that the meaning and scope of the term repugnant is not
limited only to the actual state of being contrary i.e. contrariety, conflict, antagonistic, opposite or
being disparate to the letter of the NASS/Injunction of Islam alone but would also cover the case
when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive,
distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of the NASS i.e.
Injunction of Islam.

TABLE

1419
 Subjectwise Examination

14. With this background we will now take up examination of the contentions and provisions of law
impugned before us in the above mentioned petitions and applications. We propose dividing our
discussion on the various issues relating to prison discipline, which have been grouped into distinct
segments, wherein different provisions, under challenge, will be examined on the touchstone of the
NASOOS/ Injunctions of Islam as mandated by Article 203-D of the Constitution. In the end we
intend enumerating ground realities relatable to the subject under review and would also consider
certain amendments and thereafter we will give closing remarks and our conclusions:---

SEGMENT SUBJECT LEGAL PROVISIONS ISSUE PETITION OR

NO. APPLICATION
ONE TRANSFER OF Rules180-181, Chapter 7 Ix ' Sh. Petition No.62/I
PRISONERS Pakistan Prison Rules, of 1992
1978
TWO CLASSIFICATION OF Rules 225 through 267, Iii Sh. Petition No.62/I-
PRISONERS Chapters 9/10 Pakistan 1992 Sh. Misc. A.
Prison Rules, 1978. No.19/I of 1997 Sh.
Misc. A. No.11/I of
1998
THREE LETTERS AND Rule 546, Chapter 22 Ix Shariat
INTERVIEWS Pakistan Prison Miscellaneous
Rules,1978 Application No.16/I
of 1997
FOUR DISCIPLINE AND Rule 690, Chapter 28, Ix Shariat
DAILY ROUTINE Pakistan Prison Rules, Miscellaneous
1978 (Reference S.42/45 Application No.16/I
Prisons Act, 1894) of 1997
FIVE WOMEN PRISONE'RS Rules 307,314 Chapter Ii Sh. Petition- No.61/I
AND INNOCENT 13, Pakistan Prison of 1992, Sh. Misc. A.
CHILDREN Rules, 1978 No.10/I of 1998
SIX SUPERINTEN- DENT Rules 935,939 Chapter Ix Sh. Petition No.61/I
OF JAIL 39, Pakistan Prison of 1992
Rules,1978
SEVEN LADY ASSISTANT Rules 1180,1181 Ii and ix Sh. Petition No.61/I

1420
 SUPERINTEN- DENT Chapter 46, Pakistan of 1992
AND WOMEN Prison Rules, 1978
WARDERS
EIGHT DEPUTY SUPERINTEN- Rules 1002,1004 Ix Sh. Petition No.61/I
DENT Chapter 41, Pakistan of 1992
Prisons Rules, 1978
NINE EMPLOYMENT Rule 1078 Chapter 44, Ix Sh. Petition No.12/I
RESTRICTIONS Pakistan Prison of 1999
Rules,1978
TEN STATUTORY RELIEF Section 382-B Code of Vii, viii Sh. Miscellaneous
Criminal Procedure. Application No.21/I
of 1995
ELEVEN DIETARY Chapter 20 Pakistan Ix Suo Motu
REQUIREMENTS Prison Rules, 1978
TWELVE FAMILY LIFE Rule 545-A, Chapter 22 i, ix Sh. Misc. A. No.21/I
Pakistan Prison Rules, of 19 95 Suo Motu
1978
THIRTEEN CONDEMNED Chapter 14, Pakistan Vi Sh. Petition No.4/I
PRISONERS Prison Rules, 1978 and of 2008 originally
S.30(2) Prisons Act, 1894 registered as S.P.
No.4/I of 2004
FOUR- TEEN GROUND REALITIES Chapter 36,38, 49 iv,ix, x Suo Motu
FIFTEEN PRISON DISCIPLINE PRISON RULES X Sh. Misc. A. No.21/I
of 1995 Sh. Misc. A.
No.10/I of 1998 Suo
Motu
SIXTEEN JAIL RIOTS ON PRISONS X suo motu
SEVEN- TEEN GUIDING PRINCIPLES/ ISSUES UNDER X suo motu
PERMANENT VALUES DISCUSSION
EIGHTEEN OFFENCES AND PRISON DISCIPLINE X suo motu
PUNISHMENT
NINETEEN PRISONER'S RULE 84 suo motu
PROPERTY
TWENTY CLOSING REMARKS suo motu
TWENTY ONE CONCLUSIONS Final Order of the
Court

1421
 SEGMENT ONE

TRANSFER OF PRISONERS

(ISSUE NO.IX)

15. The subject matter of the first segment is Chapter 7 of Rules entitled Transfer of Prisoners. Rules
180-181 have been challenged through Shariat Petition No.62/I of 1992 and Shariat Miscellaneous
Application No.11/I of 1998. The text of both the rules is reproduced below:---

Notice to Railway Authorities

Rule 180.--- (i) The Superintendent shall give at least three days, notice to the Station
Master of the number of persons, both prisoners and guard, for whom reserved
accommodation is required and the particular train by which it is desired to dispatch them.

(ii) Prisoners on transfer shall be dispatched by ordinary passenger trains except when it
may be necessary for special reasons to dispatch them by mail train.

Superior class prisoners may travel in a higher class.

Rule 181.--- Normally third class railway accommodation shall be provided for prisoners.
Superior class prisoners may, however, travel in second class and if they pay the difference
in railway fare both for themselves and for the police escort they may be allowed to travel
in a higher class.

16. Rule 180 contemplates a notice to the Railways Authorities for prisoner's accommodation and
rule 181 deals with the travelling of superior class prisoners. No specific arguments based upon
Nasoos were advanced by petitioners to challenge the two rules but it appears that the general

1422
arguments advanced, on the question of discrimination, covered rule 181 under which the superior
class prisoners are allowed to travel in better class compartments attached with trains. It will
however be appreciated that the superior class prisoner is only given the option to travel in second
class compartment on the condition of payment of difference in the railway fare, both for himself and the
escort. The prisoner on transfer, while travelling by train in the general compartment, is legally
exempt from paying the stipulated railway fare. He travels free. Even in the days of the Holy
Prophet (p.b.u.h.) and in the times before and after him the wayfarers would travel on foot or
donkeys or horses or camels or even improvised carts' according to the resources available with
them. Reference be made to Ayat 27 Sura 22 (Al-Hajj) where Allah Almighty directs Syedna Ibrahim
(A.S.) to:-

Proclaim the (performance of) Pilgrimage

Among people: they will come

To thee on foot and (mounted)

On every kind of camel,

Leap on account of journeys

Through deep and distant

Mountains, highways.

It was not shown to us during arguments that the two impugned rules are repugnant to be letter
and spirit of any one or more Injunctions of Islam. Presumption of legality is certainly attached to all
legal provisions as contemplated by Article 227 of the Constitution of Pakistan. Hence we do not
agree that rules No.180 and 181 contravene any of the Injunctions of Islam. Consequently the part
of Shariat Petition No.62/I of 1992 which impugns Rules 180, 181 is hereby dismissed.

17. Notwithstanding dismissal of a part of Shariat Petition No.62/I of 1992 we proceed to take Suo
Motu Notice of Chapter 7 of the Prisons Rules as well as Sections 29, and 42 of the Prisoners Act,
1900. These provisions speak in terms of transferring certain categories of prisoners within and
beyond the territorial limits of a Province and such transfers of prisoners from one Jail to another
Jail within the Province, as seen in the following provisions, is the domain of the Inspector General
of Prisons.

1423
A. Rule 147 of Chapter 7. The transfer of prisoners from one prison to another within the Province
shall be directed by the Inspector-General.

B. THE PRISONERS ACT, 1900

(i) 29.--- (1) The Provincial Government may, by general or special order, provide for the removal of
any prisoner confined in a prison--

(a) under sentence of death, or

(b) under, or in lieu of, a sentence of imprisonment, or

(c) in default of payment of a fine, or

(d) in default of giving security for keeping the place or for maintaining good behavior,

to any other prison in the Province, or, with the consent of the Provincial Government
concerned, to any prison in the other Province or, with the consent of the Federal
Government to any prison maintained by it or under its authority in any part of Pakistan.

(2) Subject to the orders, and under the control, of the Provincial Government the
Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner
confined as aforesaid in a prison in the Province to any other prison in the Province.

1424
 (3) The Federal Government may, by general or special order, provide for the removal of any
prisoner or class of prisoners confined in any prison to any other prison in Pakistani
maintained by or under the authority of the Federal Government or of a Provincial
Government with the consent of the Provincial Government concerned."

(ii) Section 42. Power of Government to exempt certain prisoners from operation of this
Part.--- The Provincial Government may, by notification in the official Gazette, as the case
may be, direct that any person or any class of persons shall not be removed from the prison
in which he or they may be confined; and thereupon, and so long as such notification
remains in force, the provisions of this Part, other than those contained in Sections 44 to 46,
shall not apply to such person or class of persons".

18. Having gone through these provisions we find firstly that no Provision has been incorporated for
any notice being given to the prisoner before his removal within or beyond the local limits of a
Province and secondly arbitrary powers have been given to the Provincial Government as well as
the Inspector General of Prison for transfer of a prisoner to different prisons within the Province
and the same unfettered power is enjoyed by the Federal Government when the transfer is to be
made beyond the limits of a Province, and thirdly that the right of appeal before an independent
tribunal has not been provided against such routine but harsh orders; and fourthly there is no limit
to the number of transfers that can be inflicted upon a prisoner.

19. Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions
of Islam. The Federal Shariat Court in re The Civil Servants Act, reported as In re: The Civil Servants.
Act, 1973 PLD 1984 FSC 34 and Dr. Muhammad Aslam Khaki and others v. Government of Punjab
and others, PLD 2005 FSC 3, and the Apex Court in the case of Pakistan and others v. Public at large
reported as PLD 1987 SC 304 (374) has held that Notice and right of appeal has to be provided
whenever an order adverse to the interest of an aggrieved person is passed by any authority. In this view
of the matter we find that by now the following principles should be read as part of every statute
namely:

(a) Notice must issue to a person against whom an order/action, adverse to his interests, is
proposed to be made disclosing the reasons for the same with an adequate opportunity to
show cause against it.

1425
 (b) The authority, office or person issuing any order or direction which affects any person
prejudicially, will state reasons for making the proposed order. Reasonable opportunity will
also be given to the affected person to show cause against the proposed action. Reference
section 24-A General Clause Act, 1897.

(c) Right of appeal before an independent tribunal/authority, higher than the one which
issues the impugned order, vests in the person aggrieved by an adverse order. The District
and Sessions Judge of the District should be the appellate authority.

20. The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat
29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of .Sura 84 and Ayaat 6
through 8 Sura 99 of the Holy Qur'an.

21. Direction by the Government or the Inspector General of Prison Department for removal of a
prisoner from one prison to another prison within the Province or from one Province to another
Province must be supported by a speaking order. Unless it is a question of dire necessity or
emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know
why he is being transferred away from his home town. There must be legal justification to lodge a
prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to
serious disadvantage, particularly of women folk and children, of prisoner. We are guided by the
tradition of the Holy Prophet (p.b.u.h.) wherein the Muslims have been directed to create facilities
for the people and not to add to their hardships and apprehensions: "YASSARA WA LA TOASSARA.

22. As a consequence thereof Rules 147 through 149 of the Pakistan Prisons Rules, 1978 as well as
section 29 of the Prisoner's Act, 1900 is hereby declared repugnant to the above mentioned
Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys
unfettered power to transfer a prisoner from one Province to another Province without giving
notice to the prisoner or without obtaining his consent or without referring to any lawful reason by
way of a speaking order conveyed to the detenue and without providing any remedy against
exercise of such authority. Similarly the power of the Inspector General of Prisons to transfer a
prisoner from one prison to another within the Province without notice or consent of the prisoner
and without providing a right of appeal before an independent tribunal is declared as repugnant.

1426
Chapter 7 of the Jail Manual and section 29 of Prisoners Act, 1900 should be recast in a manner in
which (a) arbitrary, unbridled and unfettered powers are neither given to the Government nor the
Inspector General of Prisons; (b) and unless the gravity of the situation really demands an
expeditious action, transfers within the Province or beyond the limits of Province, without notice or
consent, should be eschewed. This however does not cover the case of a convict whose release is
due and he is being transferred near his home town as provided in Rule 148 or who is required to
be produced in another court in a case being tried elsewhere or- there are other reasonable ground
such as safety, security or health. However the transfer policy should be based upon reasonable
considerations subject of course to notice and the right of appeal or representation before an
independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid
grounds.

23. There is not much case law available on the point. However the case of Ataullah Mangal v. The
State PLD 1965 Kar. 350 and the case of Ali Muhammad v. State reported as 1974 PCr.LJ 249 may
also be considered by the amending authorities. This decision regarding repugnancy of the
impugned provisions of law will take effect as from 1-12-2009 during which period the necessary
amendments, additions or alterations may be effected by relevant authorities.

SEGMENT TWO

CLASSIFICATION OF PRISONERS

(ISSUE NO.III)

Rules 224-249 find mention in Chapter 9 of the Pakistan Prisons Rules, 1978. The title of this chapter
is Classification and Separation of Prisoners. Rules 250-270 are contained in Chapter 10 entitled Superior
Class Prisoners. These provisions have been challenged in Shariat Petition 62/I of 1992 as well as Shariat
Miscellaneous Application No.19/I of 1997 and Shariat Miscellaneous Application No.11/I of 1998. The
emphasis of learned counsel appearing in support of these petitions was on all the provisions contained
in the two chapters which deal with classification and separation of prisoners with particular reference
to the privileges attached with categories A and B. In order therefore, to appreciate the controversy it
would be useful to examine the text of the impugned provisions in Chapters 9 and 10 together:---

CHAPTER 9

1427
 The Classification and Separation of Prisoners

Classes of Prisoner

Rule 224--- A prisoner confined in prison may be--

(i) a criminal prisoner which includes:

(a) a convicted prisoner; and

(b) an unconvicted or undertrial prisoner:

(ii) a civil prisoner; or

(iii) a State prisoner detained under Regulation III of 1818, or a person ordered to be detained in
prison without trial under any law relating to the detention of such person.

Note. Lunatics may also be temporarily detained in prisons under the orders of the Magistrate.

Classification of convicted prisoners

Rule 225-- (i) Convicted prisoners shall be classified into

1428
 (a) superior class;

(b) ordinary class; and

(c) political class

(ii) Superior class includes A and B class prisoners. Ordinary class comprises of prisoners other
than superior class.

Political class comprises of prisoners who commit crimes not for personal gain but for political motives.
This class is not criminal and does not require reformative or correctional treatment.

Casuals and habitual

Rule 226--- Convicted prisoners are classified into casuals and habitual.

(i) Casuals are first offenders and who lapse into crime not because of a criminal mentality but
on account of their surroundings, physical disability or mental deficiency.

(ii) Habituals are:---

(a) Ordinary habituals prisoners; and

1429
 (b) Professionals or repeaters.

Ordinary habitual prisoners are those frequently lapse into crime owing to their surroundings or
some physical or mental defects.

Professionals or repeaters are men with an object, sound in mind and in body, competent, often
highly skilled, who deliberately and with open eyes prefer a life of crime and know all the tricks
and manoeuvers necessary for that life. They may be first offenders.

Classification of convicted prisoners according to age

Rule 227--- Convicted prisoners are further classified as under:---

(a) Juveniles under the age of 18.

(b) Adolescent over 18 and under 21 years of age.

(c) Adults over the age of 21.

Nature of sentence

Rule 228---There shall be two classes of convicted prisoners according to the nature of their sentence,
i.e.:---

1430
 (a) those undergoing rigorous imprisonment; and

(b) those undergoing simple imprisonment.

Classification of Under-Trial Prisoners

Rule 229.---Undertrial prisoners shall be classified as under:---

(a) Committed to Sessions.

(bi) Committed to other Courts.

For Sindh Province only

In rule 229, for the word "committed" the word "sent" shall be substituted.

Classification of women prisoners

Rule 230.--- Women prisoners will be classified in the same manner as is provided in the case of
males.

Separation of prisoners

1431
Rule 231.--- Prisoners shall be kept separate as under:---

(i) In a prison containing men as well as women prisoners, the women shall be imprisoned
in a separate prison, or separate part of the same prison in such manner as to prevent
their seeing, conversing or holding any communication with the male prisoners.

(ii) Juveniles shall be kept separate from all other prisoners.

(iii) Under-trial prisoners shall be kept separate from convicted prisoners.

(iv) Civil prisoners shall be kept separate from criminal prisoners.

(v) Political prisoners shall be kept separate from all other prisoners.

For Sindh Province only

In rule 231, for sub-rule (ii) the following sub-rule shall be substituted, (ii), Juveniles shall be kept
in a separate institution or jail, or if there be no separate institution or jail in any area, in a
separate part of the same prison in such manner as to prevent their meeting or holding
communication with adult prisoners.

Further provisions regarding separation

1432
Rule 232.--- Separation of the following prisoners shall, to the extent to which it can in each
prison be observed, be carried into effect;

(i) Under trial prisoners who have been committed to Sessions, shall be kept separate from
under trial prisoners who have not been so committed and those who have been
previously convicted shall be kept separate from those who have not been previously
convicted.

(ii) Casual convicted prisoners shall be kept separate from habitual convicted prisoners.

(iii) Simple imprisonment prisoners shall be kept separate from the rigorous imprisonment
prisoners.

(iv) Convicted prisoners who are under 16 years of age shall be kept separate from
convicted prisoners who are more than 16 years of age,

(v) Every habitual criminal shall, as far as possible be confined in a special prison in which
only habitual criminals are 'kept. The Inspector-General may, however sanction the
transfer to such special prison of any prisoner not being a habitual prisoner, whom for
reasons to be recorded, the Superintendent of the prison believes to be of so vicious and
depraved a character: as to make his association with other casual prisoners undesirable.
Prisoners so transferred shall not otherwise be subjected to the special rules affecting the
habitual criminals.

(vi) Political prisoners may be kept separate from each other, if deemed necessary.

Exception to the Rule regarding separation

1433
Rule 233.--- When in any prison only one prisoner exists in any class and separation would
amount to solitary confinement, such prisoner, if he so desires, be permitted to associate with
prisoners of another class in such a manner so as not to infringe the provisions of Section 27 of
the Prisons Act, 1894..

Association and segregation of prisoners

Rule 234.--- Subject to the provisions of Rule 231, convicted prisoners may be confined either in
association or individually in cells or partly in one way and partly in the other.

Segregation of under trial prisoners

Rule 235.--- Under trial prisoners may be confined separately in cells, when in the opinion of the
Superintendent, it is necessary in the interest of the prison discipline to do so, or under the
orders of the Inspector General, or of Government.

Occupation of vacant cells

Rule 236.---Cells not in a use for purposes of punishment or otherwise, shall be occupied by the
convicted prisoners for the purpose of separation subject to the following conditions:---

(a) Juvenile shall in preference to any other class of prisoners be ' confined in cells both by
day and night.

(b) Prisoners convicted under section 366 (A)', 376 and 377 of the Pakistan Penal Code,
shall in preference to prisoners other than juveniles be placed in cells both by day and
night.

1434
 ( c) Habitual prisoners shall be placed in cells both by day and night in preference to
casual prisoners.

Sections 366-A, 376 and 377 of Pakistan Penal Code are: Section 366-A. Procreation of minor
girl.

Section 376. Punishment for rape

Section 377 Unnatural offences

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this Section.

Separation of habituals

Rule 237.---Habitual prisoners shall be subjected to the system of separation prescribed in the
preceding rules in rotation.

Separation of casuals

Rule 238---If at any time there are more cells in any prison than suffice for the separation of all
habituals, prisoners of the casual class shall be confined in cells by night only in rotation.

1435
Procedure when separation by day is not feasible

Rule 239.---A convicted prisoner who would ordinarily come under the operation of any of the
preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by
reason that he is required for some prison service shall be confined in a cell by night.

Explanation--Separation under Rules 235 to 239, is restricted merely to the separation of

individual prisoners for purpose of prison management; such separation is not to have any
irksome conditions attached to it.

Separation of prisoners to prevent the commission of any offence

Rule 240.---If in the opinion of the Superintendent, the presence of any prisoner in association
with others is detrimental to good order and discipline, and is likely to encourage or lead to the
commission of any offence, such prisoner may be kept separate in a cell.

Separation to be as-complete as possible

Rule 241.---Subject to the provisions of Rule 233, the separation of the various classes of
prisoners shall be carried out to the fullest extent as far as possible. If there are not a sufficie nt
number of latrines, bathing rooms and feeding arrangements to keep the classes completely
apart, such arrangement for separation as are under the circumstances practicable shall be made.

Rules for the classification of prisoners into "A", "B" and "C" Class

Rule 242.---(i) Convicted shall be divided into three classes; "A", "B" and "C" class. Class will
contain all prisoners who are---

1436
 (a) casual prisoners of good character;

(b) by social status, education and habit of life have been accustomed to a superior mode
of living and;

(c) have not been convicted of offence involving elements of cruelty, moral degradation,
personal greed, serious or premeditated violence, serious offence against property,
offences relating to the possession of explosive, firearms and other dangerous weapons
with object of committing or enabling an offence to be committed and abetment or
incitement of offences . falling within these sub-clauses.

(ii) Class "B" will consist of prisoners who by social status, education or habit of life have
been accustomed to a superior mode of living. Habitual prisoners can be included in this
class by order of the Government.

(iii) Class "C" will consist of prisoners who are not classified as and "B

Classifying authority

Rule 243---For "A" and "B" Classes the classifying authority will be the Government. Courts may
classify prisoners into "A" and class pending final orders of the Government. Class "C" will be
classified by the trying Courts, but such prisoners will have a right to apply for revision to the
Government. Petitions of revision will be forwarded by the Superintendent to the Inspector-
General for transmission to Government.

Superintendent may award B class to convicted prisoners.

1437
Rule 244.---In case convicting Court omit to classify convicted prisoners for better class
treatment. Superintendents of prisons subject to the approval of Government may classify them
as "B" class prisoners, provided that such prisoners appear to fulfil the conditions prescribed for
better class treatment.

Qualifications for "A" and "B" class

Rule 245.--- The recommending authority shall invariably furnish to Government the following details
when recommending a prisoner to "A" or "B" class.

(a) Whether the prisoner is casual or habitual.

(b) Previous convictions if any.

(c) Offence and sentence.

(d) Social and financial status of family.

(e) Profession of the prisoner.

(f) Income of the prisoner, if any.

(g) Academic qualifications of the prisoner.

1438
 If the statement of the prisoner on these points requires verification, further enquiries should
be made from the [District Coordination Officer] or any other source. The recommending
authority may either defer making any recommendations until it has received the information
asked for or may, make the recommendations on the materials available and state that the
result of further enquiries will be submitted when received.

Disagreement between the convicting Court and the District Coordination Officer.

Rule 246.---In case in which there is disagreement between the convicting Court and the District
Coordination Officer, as to the classification of any prisoner, the [District Coordination Officer] shall
decide the class in which a convicted prisoner shall be kept pending final orders of the Government.

Condemned prisoners governed by these rules

Rule 247.---The above rules shall also apply to the prisoners under sentence of death.

Classification of under-prisoners

Rule 248.---(i) There shall be only two classes of under-trial prisoners---

(a) better class; and

(b) ordinary class.

1439
 (ii) better class will include those under-trial prisoners who by social status, education or habit
of life have been accustomed to a superior mode of living and will correspond to "A" and "B"
class of convicted prisoners. Ordinary class will include all others and will correspond to "C"
class.

(ii-a) Those under-trial prisoners who pass matriculation or higher examination in 1st Division
during their stay in the jail shall be allowed better class jail facilities with effect from the date
the result is announced.

(iii) Before an under-trial prisoner is brought before a competent Court, it will be at the
discretion of the Officer [not below the rank of Assistant Superintendent/Deputy
Superintendent of police having jurisdiction in the area] to properly classify him. After he is
brought before the Court, he will be classified by that Court, subject to the ' approval of the
Provincial Government.

(b) Rule 248.--- Order passed under R.248 with approval of District Coordination Officer cannot be
revised by that authority.

For Sindh Province Only In rule 248:-

After sub rule (ii), the following new sub-rules shall be added:

(ii-a) Members of the Senate, National Assembly, Provincial Assembly, Officers of grade 17 or
above in the Federal or Provincial Government, Commissioned Officers in the defence forces or
the Rangers, Mayors of Metropolitan Corporations, Chairmen of Municipal Corporations and
District Councils, officers in autonomous institutions or corporations established or controlled by
the Federal or any Provincial Government, holding posts equivalent to or higher than grade 17 in
Government, and - any person paying income tax or agricultural/wealth tax not less than
Rs.10,000 per year shall be classified as better class facilities, both in the jails, and sub-jails and
while in police custody;

1440
 (ii-b) those under trial prisoners who pass matriculation or higher examination in 1st division
during their stay in the jail shall be allowed better class jail facilities with effect from the date of
result is announced.

(b) for sub-rule (iii) the following sub-rule shall be substituted,

"(iii) The court competent to try a prisoner, if it is satisfied that the prisoner by reason of his
exceptionally high educational or professional qualification or his status is accustomed to a
superior mode of life; may by an order in writing, with reasons therefor, classify such prisoner as
better class prisoner. Provided that if such order is passed by any court sub-ordinate to a
Sessions Court," the order shall be subject to approval of the Sessions Judge.

Classification of political prisoners

Rule 249.---Classification of political prisoners will be determined by the authority ordering their
retention in prison.

CHAPTER 10

SUPERIOR CLASS PRISONERS

Superior Class Prisoners

Rule 250.---superior class prisoners are-

1441
 (i) convicted prisoners admitted to "A" or, "B" class by order of the Government;

(ii) convicted prisoners admitted to "A" or "B" class by order of the Courts pending the orders of
Government; and

(iii) undertrial prisoners admitted to superior class by order of the Court subject to the
provisional order of the Provincial Government.

Rule 251.--- Except as provided in the chapter, all prison rules shall also apply to superior class prisoners.

Accommodation

Rule 252.---(i) Superior class prisoners shall, where such accommodation is available, be kept apart from
other prisoners and be accommodated in rooms or in association barracks set aside for them. The
imprisonment shall in no case involve any thing in the nature of separate confinement, except when it is
given as prison punishment.

(ii) In the case of "B" class prisoners, it shall not be necessary to keep them separate from ordinary
prisoners in factories or at times when they are not required to be in their rooms or barracks.

Tasks

Rule 253.---The tasks shall be allotted with due regard to the capacity, character, previous mode of life
and antecedents of the prisoners.

1442
Sleeping outside in hot weather

Rule 254.---(i) "A" and "B" class prisoners may be allowed to sleep outside their rooms or barracks
during the hot weather (1st May to 1st October), if the arrangements in the particular, prison permit this
to be done with safety and without any additional expenditure.

(ii) This facility shall not be permitted to condemned prisoners admitted to superior class.

Furniture

Rule 255. (i)--- Rooms shall be supplied with following articles:--

[One cot, one chair, one teapoy, one lantern if there is no electric light, one shelf, and necessary
washing and sanitary appliances].

[(ii) Association barracks shall be provided with the following:---

One cot per prisoner, one large table with benches, shelves, sufficient lamps to enable reading
at the table, necessary night sanitary appliances, latrines and bath rooms in the enclosure.

(iii) A class prisoners may supplement the furniture by other articles within reasonable limit at
their own cost, at the discretion of the Superintendent.

1443
 (iv) Commodes shall also be supplied to those prisoners who are accustomed to their use and
ask for them.

(v) They shall be allowed a lamp or light for reading up to 10-00 p.m.

Amendment for Punjab/Sindh

More Furniture.

Rule 255. (i)--- Rooms shall be supplied with following articles:---

[One cot woven with niwar, one chair, one tea-poy, one table lamp, one shelf, one ash tray, one
wooden rack and necessary washing and sanitary appliances].

[(ii) Association barracks shall be provided with the following:---

One cot woven with niwar per prisoner, one large table with benches, shelves, sufficient light to
enable reading at the tables, necessary night sanitary appliances, latrines and bath rooms in the
enclosure.

(iii) A class prisoners may supplement the furniture by other articles within reasonable limit [and
also portable Radio and T.V. set] at their own cost, at the discretion of the Superintendent [and
B class prisoners shall be allowed to keep a portable Radio at their own cost].

(iv) Where flush fittings are not available, commodes shall be supplied to those prisoners who

1444
 are accustomed to their use and ask for them.

(v) They shall be allowed a table lamp for reading up to 10 p.m.

(vi) One waste paper basket will be supplied for each cell and more for association barracks at
the discretion of the Superintendent.]

Exercise and games

Rule 256.---When there is only one superior class prisoner, he should be allowed walking or some other
physical exercise for half [2 hours] an hour both morning and evening. Where the number of such
prisoners exceeds one, outdoor games such as volley ball, deck tennis and badminton may be allowed at
the discretion of the Superintendent, provided that the space in the enclosure permits it. The initial
expenditure in every case shall be paid by the Government. Indoor games such as cards carom or chess
may also be permitted at the cost of the prisoners.

Sanitary and bathing arrangements

Rule 257. (i)---They shall be allowed reasonable facilities for bathing, latrines, etc., with due regard to
the provision of privacy. They use of toilet and washing soap shall also be allowed. Superior class
prisoners shall be allowed to keep the articles as permissible under Rule 75.

(ii) Soap will be allowed to "A" and "B" class prisoners on the following scale:---

Toilet soap-One cake weighing about 117 grs. for a fortnight. Washing material 117 grs. washing
soap 117 grs. and washing soda weekly.

1445
For Punjab and Sindh Provinces only

In Rule 257, for sub-rules (ii) the following sub-rules shall be substituted and sub-rule (iii) shall be
added:---

(ii) "A" and "B" class prisoners, if they can not afford themselves, shall be allowed the following
articles:

(a) Toilet soap one cake weighing about 140 grams for a fortnight.

(b) Washing material, 125 grams washing powder weekly.

(c) Mustard oil 60 grams per week for those who grow hair.

(iii) Prisoners in association barracks shall be provided with one fixed mirror of size 57 x 41 c.m.,
in wall, one hair comb medium quality, one soap case, one Lota plastic one mug plastic and one
towel per prisoner and one plastic tub (medium size) for every ten prisoners. A fixed towel
hanger shall be provided in each bathroom.

Cooking arrangement

Rule 258.---When several superior class prisoners are confined together, a separate cook house [two "C"
class prisoners for every ten such superior prisoners] shall be provided for them. In the case of a
superior class prisoners if confined individually he may be permitted a "C" class prisoner-cook to cook
his food.

1446
Utensils

Rule 259. (1).. The following utensils shall be supplied to each prisoner:--

One enamel plate, two enamel cups, one metal glass, one spobn and one enamel mug.

(ii) A class prisoners if they desire, shall be allowed to use their own utensils.

Amendment for Punjab Province only:

Better utensils

Rule 259.---The existing Rule 259 shall be substituted as:-.

(i) The following utensils shall be supplied to each prisoner:---

(a) One full plate,, one quarter plate, one teaspoon, one table spoon and one tumbler of
stainless steel and one tea cup.

(b) The following utensils shall be supplied to the prisoners for common use by six prisoners.

One tea set (tea pot, milk pot and sugar pot).

1447
 One tea kettle and one jug of stainless steel.

(c) The following articles will be provided in common kitchen for preparation and service of food
(for six better class prisoners):---

One steel Tawa, one medium size Parat, one cooking kettle, one cooking spoon, one dish for
curry, one dish for sweet, one dish for rice, one fry pan, one meat safe (medium size) and one
kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove
(where no Sui gas arrangement exists)

(d) Any other articles of kitchen requirement, considered necessary, may be provided at the
discretion of the Superintendent Jail.

(i) A class prisoners if they desire, shall be allowed to use their own utensils.]

For Sindh Province only

For rule 259, the following rule shall be substituted:

(i) The following utensils shall be supplied to each prisoner;

One full plate, one quarter plate; one teaspoon one table spoon and one tumbler of stainless
steel and one tea-cup.

1448
 (ii) The following utensils shall be supplied to the prisoners for common. use by six prisoners:---

One tea set (tea pot, milk pot and sugar pot) one tea kettle and one jug of stainless steel.

(iii) The following articles shall be provided in common kitchen for food preparation and services
for every six better class prisoners:---

One steel Tawa, one medium sized plate, one cooking kettle, one cooking spoon, one dish for
curry, one dish for sweet, one dish for rice, one frying pan. One meat safe (medium size) and
one kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove
(where no sui gas arrangement exists),

Note: .The plates and dishes shall be of stainless steel. Any other articles of kitchen requirement,
considered necessary, may be provided at the discretion of the Superintendent Jail.

(iv) "A" and "B" class prisoners, if they so desire, shall be allowed to use, their own utensils.

Diet

Rule 260. (i)---Superior diet shall be provided according to the following scale; provided that the
Inspector General may, with the approval of the Government, modify or alter the scale of diet to suit the
local conditions:---

Name of Article Diet Scale for Diet Scale for

Meat Eaters Vagetarians eaters
Kgr. Grs. Kgr.Grs.
Wheat atta 0...583 0...583

1449
Dal 0...117 0...117
Meat 0 ...17
Milk 0...233 0...583
Vegetable Ghee . 0...29 0...29
Sugar 0 ...58 0...58
0..29 0...29
Milk for tea 0..117 0...117
Vegetables 0...117 0.2...33
Potatoes 0...117 0...117
Condiments 0...15 0...15
Salt 0...15 0...15
Firewood 1...886 1...886

(ii) Meat eaters can exchange meat with eggs or fish when available, or liver, kidneys, brain, etc.,
provided cost does not exceed that of the authorized amount of meat 175 grs.

(iii) Loaf bread weighing upto 467 grs may be substituted for wheat Atta, in the case of
foreigners or Pakistanis accustomed to western diet 467 grs. rice may be substituted for 583 grs.
wheat-Atta in case of rice eaters.

(iv) Prisoners will not be permitted to accumulate raw rations from day to day. Unconsumed raw
rations will be taken back in the prison stock.

(vi) The diet in the case of "A" class prisoners may be supplemented at their own expenses with
extra article of food of a simple character, provided money for its purchase is deposited with the
Superintendent.

(vii) The occasional present of fruits to superior class prisoners by their relatives and friends is
permitted at the discretion of the Superintendent. Alcohol, intoxicating drugs and articles of
luxury shall not be permitted.

1450
 (viii) A copy of the scales prescribed shall be hung up in the rooms or barracks where such
prisoners are confined.

Amendment For Punjab

Better Diet

Rule 260.--- Against the below noted items the quantity be substituted as follows:

Name of Article Kgr.Grs. Kgr.Grs.

Meat ...175
Tea 0..7 0...7
Potatoes 0...117 0...117
Salt 0...15 0...15
Firewood 1...886 1...886

For Sindh Province only

In Rule 260, in the table of articles and scales the existing quantity of the articles mentioned shall be
substituted as given against them:---

Meat 175 grs nil

Tea 7 grs. 7 grs
Firewood 1.886 350 grs %

(Where gas is not provided)

1451
Clothing and bedding

Rule 261. (1)---A class [superior class convicted] prisoners may, within reasonable limits, wear their own
clothing and provide their own bedding, shoes, etc.

(ii) A class [superior class convicted] prisoners who prefer prison clothing, etc. and all `B' class [deleted]
prisoners shall be supplied with clothing and other equipment according to the can given below;
provided that the Inspector-General may with the approval of the Government, modify or alter the scale
to suit the local conditions:---

Male Prisoners Throughout the year.

2 Dasuti shirts or Kurtas 2 Dasuti Shalwars or trousers.

2 cotton Azarbands. 2 Dasuti caps.
2 towels. 2 Dasuti pillow covers.
1 pillow case filled with cotton. 2 Dasuti bed sheets.
iblanket woolen 1 cotton Durrie.

During winter---

(1) Woollen jersey.

(2) Blankets woollen.

(3) Dasuti mattressfoam Mattress 5 cm thick

1452
Women Prisoners; Throughout the year

2 cotton Shalwars. 2 Dasuti pillow covers.

2 cotton shirts. 6 napkins.
2 cotton Dopattas of coarse Muslin.
2 towels. 2 cotton Azarbands.
2 Dasuti pillow covers. 1 pillow case filled with cotton.
2 Dasuti bed sheets. 1 blanket woollen
1 cotton Durrie.

During winter

3. blankets woollen.

1 Foam Matters 5 c.m. thick

1 woollen jersey.

Amendment for the Punjab Province only:

Better clothing and bedding

Rule 261.---The existing rule shall be substituted as under:---

(i) A class prisoners may, within reasonable limits, wear their own clothing and provide
their own bedding, shoes, etc.

1453
 (ii) A class prisoners who prefer prison clothing, etc. and all `B' class convicted prisoners
shall be supplied with clothing and other equipment according to the scale given below;
provided that the Inspector General may with the approval of the Government, modify or
alter the scale to suit the local conditions:-

Male Prisoners; throughout the year--

Two Dasuti shirts or Kurtas. Two Dasuti Shalwars or trousers.

Two cotton Azarbands Two towels.
Two Dasuti caps. Two Dasuti pillow covers.
One foam pillow. Two Dasuti bed sheets.

Male Prisoners; throughout the year---

One blanket
One cotton Durrie.

During winter:.

One woollen Jersey.

Four blankets (medium quality),
One foam mattress 5 cm thick.

Women Prisoners throughout the year:

1454
Two cotton Shalwars.
Two Dasuti pillow covers.
Two cotton shirts.
Six napkins.
Two cotton Dopattas of coarse Muslin.
Two cotton Azarbands.
Two towels.
One foam pillow.
Two dasuti bed sheets.
One blanket.
One cotton Durree.

During Winter:

Four blankets.
One foam mattress 5 cm thick.
One woollen jersey.

For Sindh Province only

In Rule 261, for sub-rule (ii), the following sub-rule shall be substituted:

(ii) A class prisoners who prefer prisoner clothing, and all "B" class convicted prisoners
shall be supplied with clothing and other equipment according to the scale given below;
provided that the Inspector General may with the approval of the Government, modify or
alter the scale to suit the local conditions:-

Male prisoners throughout the year

1455
 Two Dasuti Shirts or Kurtas

Two Dasuti Shalwars or trousers

Two cotton Azarbands

Two towels

Two Dasuti caps

Two Dasuti pillow covers

One foam pillow

Two Dasuti bed sheets

One blanket

One cotton Duree.

During Winter:

1456
One woollen jersey

Four blankets (Medium quality)

One foam matters 5 cm thick

Women Prisoners throughout the year

Two cotton Shalwars

Two Dosuti Pillow covers

Two cotton shirts

Six napkins.

Two cotton Dupattas of coarse Muslin

Two cotton Azarbands Two towels

One foam pillow

1457
 Two Dasuti bed Sheets One blanket

One cotton Duree

During Winter:---

Four blankets

One foam mattress 5 cm thick

One woollen jersey.

Mosquito nets

Rule 262.---Superior class prisoners may be permitted to use, mosquito nets at their own expense.

Facilities for reading

Rule 263---In addition to books from the prisoner library a prisoner may have any [reading material
legally available in the market subject to clearance of Superintendent from private source] number of
books or magazines upto a reasonable limit from private sources, provided that such books or
magazines are not considered unsuitable by Superintendent, who if in doubt, shall consult the Inspector
General. Daily newspapers shall be supplied from a list approved by Government. These papers shall be
examined by the Superintendent before issue to the prisoners.

1458
Electric Fans

Rule 264.---Prisoners may be allowed to use their own electric fans during the summer season, if such
arrangement do not already exist in the ward reserved for them.

Letters and interviews

Rule 265.---Superior class prisoners shall be allowed to write one letter and have one interview weekly.
Both the letter and interview are interchangeable. On urgent occasion such as death or serious illness in
a prisoner's family, this rule may be relaxed at the .discretion of the Superintendent. The number of
persons who may visit a prisoner at any given times should be limited to six. The discussion of political
matters shall not be allowed at these interviews. The subject matter of all letters shall be- strictly limited
to private affairs and shall not contain any reference to prison administration and, discipline, other
prisoners or politics.

Publications of matters discussed at interview or of the substance of letters received from prisoners
shall entail the withdrawal or curtailment of this privilege.

Menial duties

Rule 266.---They shall not be required to perform menial duties nor to pay for having such duties done
for them. These duties will be discharged by the prison servants who shall not be used as personal
servants by a superior class prisoner. One attendant and one cook prisoner may be allowed to superior
class prisoners upto ten in number.

Punishments

1459
Rule 267.---There shall be subject to the general rules regarding punishments, except that whipping shall
only be inflicted with the previous sanction of the Government. All penalties inflicted on A [Superior]
class prisoners by the Superintendent shall immediately be reported to the Inspector-General. In case of
misbehaviour, the Superintendent may withdraw individual privileges, subject to the sanction of the
Inspector General, when the period exceeds one month, but the power to remove a prisoner from this
class rests with the Government only.

Discipline

Rule 268.---They shall at all times behave in an orderly manner, and shall be required to show due
respect to prison officials and visitors. In all respects the prisoners shall be subject to the rules
which apply to ordinary prisoners.

Transfer

Rule 269.---(i) Normally second class railway accommodation shall be provided at the time of
transfer from a prison. Prisoners may be allowed to travel by a higher class at their own expense if
they wish to do so, in which case they will be required to pay the difference in fares both for
prisoners themselves and their escorts.

(ii) They shall be conveyed by -taxi or tonga to and from the prison to the railway station at the
time of transfer. Prisoners shall not be transferred from a prison in one district to a prison in
another district by motor car unless the previous sanction of Government has been obtained.

Superior class under-trial prisoners

Rule 270. (i)---Accommodation-As far as possible they will be provided with accommodation
superior to that provided for "C" class convicted prisoners.

1460
(ii) Diet-- They shall be allowed the same diet as prescribed for B class prisoners. They may
supplement it at their own expense provided that the food so obtained is of a simple character.
Alcohol, intoxicating drugs and articles of luxury shall not be permitted.

(iii) Clothing---Prisoners inadequately clad and who are unable to obtain clothing from private
source be provided with B class clothing at Government expense. They may be allowed their own
beddings at the discretion of the Superintendent.

(iv) Other concessions--- Subject to the discretion of the Superintendent, superior class undertrial
prisoners may be provided with ordinary furniture as is allowed to B class prisoners. They will
ordinarily by permitted to obtain books, magazines and newspapers, subject to censorship by the
Superintendent, and allowed the use of a light upto 10 p.m. [in Winter and 11 p.m. in Summer]

(v) Letters.--- Their letters will be subjected to censorship in exactly the same way as those of
ordinary undertrial prisoners [by the concerned agencies.] .

(vi) Other matters.--- All other rules pertaining to ordinary undertrial prisoners shall also apply to
superior class undertrial prisoners.

General discussion on classification.

25. Shariat Petition No.62/I of 1992 as well as Shariat Miscellaneous Application No.19/I of 1997
and. Shariat Miscellaneous Application No.11/I of 1998 deal with the question of classification of
convicted prisoners and matters relevant thereto. It is significant to note that in this petition,
which consists of foolscap seven typed pages, not a single impugned rule or provision of law has
been shown to be violative of any one or the other Injunction of Islam. After narrating various
provisions it has been stated in paragraph 3 of the petition that "the above classification of the
prisoners and discrimination in their facilities is clearly against the principles of justice, equality,
equity and fair play as given in Islam". The mover of the petition, in paragraph 1 of this petition,

1461
states that he, as a Muslim citizen of Islamic Republic of Pakistan, has gone through legal
provisions relating to prisons and has come to the conclusion that these rules are against the
basic concept of justice and equality and hence against the Injunctions of Islam. This is an
unfortunate trend that regular petitions and miscellaneous applications are moved in
Constitutional- Courts and registered in violation of the procedure laid down in the Federal
Shariat Court (Procedure) Rules, 1981. Rule 7 is a mandatory provision contained in Chapter II of
the said Procedure Rules. It is entitled of petitions. Rules 7 through 16-A deal in detail with the
forms and the contents of petitions moved for consideration of Federal Shariat Court. It is
unfortunate that the rules are not being followed by parties to litigation and officials of the
Federal Court Registry. It is high time petitions are filed in accordance with the mandated
provisions so that the precise issues are brought before the Court for determination without loss
of time. The Registry has to be vigilant in this respect.

26. The element of classification of prisoners was seriously and repeatedly objected to by
petitioners before us. It has been urged that classification of prisoners into "A", "B" and "C"
groups is contrary to Injunctions of Islam. This issue has been canvassed forcefully before us by
repeating the solitary argument that Islam teaches equality and further that the entire prison
population should have equal facilities and any attempt to differentiate between one or the other
class of prisoners would amount to violation of the Injunctions of Islam. This question of
discrimination has been raised at different fora during the past few years. Whether it is a case of
discrimination or reasonable classification has flow to be determined.

27. Sardar Abdul Majeed, Standing Counsel for the Federal Government however opposed the
contention of learned counsel for the petitioner. He contended that it is in very rare cases that
the Government or Prison Department grants A or B class to the prisoners. It is only when political
detenues are interned under administrative orders that B class is given to such detenues who are
neither criminals nor under-trial prisoners. Sardar Abdul Majeed, while referring to certain precedents
from. Islamic history, developed the argument that an accused is not entitled to claim equality in
matters of punishments by way of Taazir. The judge may consider even a reprimand to be sufficient in a
given case. There can therefore, be no claim to equality in every sphere of life.

28. Under the circumstances, it is therefore, necessary to consider this question at length through this
judgment because this issue had come up for consideration in the case of Abdul Rashid v. The State
1980 SCMR 632 as well as the case of Waheed Akhtar v. Superintendent, Camp Jail, Lahore and another
reported as PLD 1980 Lahore 131 but arguments based upon Holy Qur'an and Sunnah were not
advanced before the Honourable Judges for their consideration.

1462
29. Before proceeding it would be useful to make a statement about the principle of Equality vis-a-vis
the teachings of Islam. Holy Qur'an and the precepts of Prophet Muhammad, p.b.u.h., are vocal on the
issue of .equality status of human beings. The Injunctions of Islam bear ample testimony, as is evident
from Ayat 13 Sura 49, that the noblest among the believers in the sight of Allah is the one who is most
mindful of his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet,
p.b.u.h., at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an
illuminating charter of human rights and freedoms wherein Liberty and Equality are declared as basic
principles of Divine Message. But equality should not be confused with classification. Islam negates
discrimination but uphold reasonable classification.

30. The principle of Equality between human beings is innate in Islamic teachings. When the Holy Qur'an
proclaims that every human being is worthy of respect and dignity as is evident from Ayat 70 Sura 17,
Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour, creed, community,
country and other man made geopolitical divisions, are equal. The divine statement contained in Ayat 76
Sura 38, to the effect that man was created from clay is a loud and clear proclamation that all human
beings are in fact equal. Similarly the declaration contained in Ayaat 22 and 29, Sura 2 Al-Baqra, and
repeated at number of places in the Holy Qur'an, namely that the bounties scattered in the cosmos are
meant for the consumption of human beings, necessarily implies that human beings are not only equal
but enjoy equal opportunities. The Qur'anic principle that those who do good shall inherit gardens
clarifies the matter further by suggesting that the criteria of success is good conduct whether done by
some one from the lower strata of society or done by a politically and financially strong person or a
blue-blooded aristocrat. The right to choose, as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has
been granted to all and sundry. Why? Because Islamic jurisprudence pre-supposes that all the human
beings are equal and enjoy the same set of liberties and limitations. The Holy Qur'an is that revealed
Book which in fact introduced the concept of unity of human race. Reference may be made to Ayat 213,
Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10. Similarly the declaration that no one shall bear the
burden of any other soul, as given in Ayat 164 of Sura 67, and that every one is accountable for his
deeds as enunciated in Ayat 202 Sura 2, is a clear pointer towards the principle of equality. At the socio-
economic and political level, the Holy Qur'an makes it abundantly clear in Ayat 35 Sura 33, that men
who submit and the women who submit, the faithful men and the faithful women etc. etc. shall receive
rewards. Ayat 173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid
illustration of equality of all human beings irrespective of time and place of birth. Equivalence is a
distinctive feature of Islam. These human friendly principles introduced by Divine Message through the
honoured Prophets A.S. paved the way for humanism and the International Charter of Human Rights.

31. rting to the main question of the legality or otherwise of the concept of classification it might as well

1463
be stated that Islamic history is replete with instances which vividly illustrate that the principle of
classification has a sanction based upon reasonable and material grounds. The above mentioned cases
of Abdur Rashid and Waheed Akhtar were decided without reference to the Islamic Injunctions on the
subject. Hence a detailed discussion has been undertaken in this judgment in the light of Islamic
principles in resolving the question relating to legal justification of classification of prisoners into various
categories notwithstanding the general principle of equality of human beings.

32. s not only the prisoners alone but the prisons in Pakistan have also been divided in different
categories as in evident from Chapter 2 of the Prison Rules. -This categorization did not at all seem
unreasonable to' the petitioners and they did not opt to challenge this classification. These are all
administrative matters and hence beyond challenge. The fact of the matter is that the concept of
reasonable classification is now a universally acknowledged phenomenon. The element of inhuman and
vicious classification amounting to abject discrimination was an accepted reality in the erstwhile Arab
Customary Code and contemporary societies elsewhere. With the advent of Islam a rational and a
judicious basis was introduced whenever classification had to be resorted to. However the historically
old, appalling' and crude mode of classifying human beings on false grounds of colour, caste, creed or
nationality was strictly prohibited by Holy Qur'an and Sunnah of the Holy prophet (p.b.u.h.) as is
evident additionally from the following illustrations:--

A. Ayat 11, Sura 4, (An-Nisa) of Holy Qur'an, accepts categorization of surviving relatives of
deceased into different classes of heirs and allots specific shares for each class of heirs. This is an
admitted proposition of law of inheritance. Care is taken not to discriminate among the heirs of
the same class though shares allocated to each class vary. At the same time Holy Qur'an warns
the believers in the said verse not to be swayed by personal sentiments or inclinations or
apprehensions about the future conduct of the recipients of the legacy. The last full owner should
therefore eschew discrimination. Each heir must get the prescribed share. Holy Qur'an while
laying down the basis for this principle states: You know not which of them is nearer to you in
usefulness. Ayat 11 Sura 4.

B. Ayat I of Sura 4, (An-Nisa) of Holy Qur'an contains the following declaration:---

"O people! be careful of (your duty to) your Lord, who created you from a single being and
created its mate of the same kind and spread from these two many men and women"

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This Ayat on the one hand declares unity of human race and on the other hand classifies humanity
into two main classes i.e. Men and Women. The reason for maintaining this classification is the
perpetuation of human race. Each sex has been declared to be ZAUJ of the other i.e., both
complement one another and each category enjoys a distinct legal capacity with a separate but
specific biological role though the twain in the social, economic, political and religious domain,
have the same rights and obligations. As a matter of general principle the Holy Qur'an has from
the outset classified the entire creation into pairs. In other words the principle of classification is
a congenital trait amongst the mortals. Ayat 49 of Sura 51, (Az-Zariat) declares:---

"And of everything We have created pairs that you may be mindful."

To the same effect is Ayat 45 of Sura 53 as well as Ayat 39 of Sura 75.

C. The most conspicuous example of the principle of equality among human race despite
disparate racial and linguistic social groups is to be found in Ayat 13 of Sura 49 of Holy Qur'an. Its
translation reads as follows:

Ayat 13 of Sura 49, (Al-Hijrat, the Chambers) states:-

"O you people, We have, created you of a male and a female, and made you tribes and families
that you may know each other, surely the most Honourable is the one among you who is most
careful (of his duties); Surely Allah is knowing and Aware ".

This declaration embraces the entire humanity, past, present and the future generations.
Mankind originated from a couple. The two complement each other. The two were created from a
single soul. The tribes, races, and nations are convenient labels by which human being may know
the characteristics of different people among themselves but as far as Lord Creator is concerned,
the entire humanity is one group referred to time and again in the Holy Qur'an as An Naas. The
classification into tribes and families is of course apparent. The purpose of this pluralism in spite

1465
of unity of human race is to ensure the preservation of different languages and cultures and a
means of identifying the different ancestries, groups or stocks. We find black, white, tanned and
yellow races with distinct languages, cultures and history but the rights of all categories of human
beings inhabiting this earth are the same. There is no discrimination from that aspect though the
element of mutual classification, from a practical point of view, has been accepted by Holy Qur'an
as a social necessity. The Holy Prophet (p.b.u.h.), in Khutba Hijat-ul-Wida declared that neither is
a white superior to black nor is an Arab nonpareil. This declaration illustrates Unity in Diversity.

D. The Holy Qur'an envisions classification among created thing. It recounts various types of
creatures into pairs and species of various categories. Reference may be made to the following
Ayaat of Holy Qur'an under different heads:---

(a) The animals in pairs: Ayat 143 Sura 6; Ayat 6 Sura 39 and Ayat 11 Sura 42.

(b) Adam and Eve: Ayat 35 Sura 2; Ayat 19 Sura 6; Ayat 117 Sura 20.

(c) Other Categories: Ayat 88 Sura 15, Ayaat 53 and 131 Sura 20; Ayat 05 Sura 22, Ayat 07
Sura 26; Ayat 10 Sura 31. See also Ayat 40 Sura 11, Ayat 27 Sura 23, Ayat 03 Sura 13, Ayat
36 Sura 36; Ayat 45 Sura 53; Ayat 39 Sure 75.

(d) Categorization in Paradise: Ayat 07 Sura 56, Ayat 52 Sura 55. See also Ayat 35 Sura 02,
Ayat 19 Sura 07 and Ayat 117 Sura 20 to show that both categories of sexes will enter
heaven.

E. The last sermon of the Holy Prophet p.b.u.h. declared that the white race has no preference
over the black people. However the existence of different races was recognized.

F. Every Prophet of God was a class in himself and each one was endowed with a distinct gift.
Each Prophet addressed a different nation in a different age though the source of relevation was

1466
the same. The Book given to each Prophet was different but the Communication did not vary.
Syedna Ibrahim A.S. had the SOHF, Syedna Daood A.S. had the ZABOOR, Syedna Moosa As.S. had
the TORAH, Syedna Isa had the INJEEL and Syedna Muhammad p.b.u.h. had the Qur'an. Each
Prophet is a distinct entity and each one of them is an illustrious link in the celebrated chain of
Apostles. The Muslims are commanded not to differentiate between them but the fact of the
matter is that even today the followers of the tradition of Abraham (A.S) i.e. Jews, Christians and
Muslims are three separate divisions of the same tradition. Reference Ayaat 136, 253 and" 285 of
Sura 2, Al-Baqra (The Cow). It might as well be added that notwithstanding the equality of status
of the Prophets, as the authorized spokespersons of Allah, Syedna Ibrahim, in the roll call of
honour, has the unique distinction of not only being a forebear of a distinguished progeny but the
Holy Prophet Muhammad (p.b.u.h.), alone, among the revered descendents of Syedna Ibrahim
A.S. had the unique distinction of becaming Khatam-ul-Ambiya i.e. the Seal of Prophets. In Ayat
124 Sura 2, the office of Imamat in addition to prophet-hood, was reserved exclusively for the
righteous progeny of Syedna Ibrahim A.S. and he thereby became a distinct and venerable class in
himself in the chain of esteemed Prophets of yore. Syedna Ibrahim A.S, as an individual, has also the
singular distinction of being referred to as an Ummah. Reference Ayaat 120-122, Sura 16 of Holy
Qur'an. This is a distinct honour which no other Prophet shares with him. Ayat 78 Sura 22
indicates that the word Muslim was first used with reference to Syedna Ibrahim A.S. Ayat 253 of
Sura 2 of Holy Qur'an makes the point amply clear wherein it is stated: "We have made some of
these apostles to excel the others; among them are they to whom Allah spoke, and some of them He
exalted by (many), degrees of rank; and we gave clear arguments to Jesus son of Mary and strengthened
him with holy revelation." The Holy Prophet Muhammad (p.b.u.h.), though a Messenger like any
other Prophet, has alone been described in Ayat 107 of Sura 21 to be Rahmatal-al-Alameen i.e.,
Mercy for all the nations of the world for all times signifying a class in himself.

G. The followers of the Holy Prophet Muhammad (p.b.u.h.) were classified into various categories
during his life time and later on as well:---

(I) Muslim: Ayaat 35-36 Sura 33 Surah Al-Ahzab of Holy Qur'an and

(II) Momin: Ayat I of Sura 23 Sura Al-Mominoon of Holy Qur'an. Reference may also be
made to Ayat 7 of Sura 40 of Sura Ghafir of Holy Qur'an

(III) Ibad-ur-Rehman: Ayat 63 Sura 25 Surah Furqan of Holy Qur'an.

1467
(IV) Munafiq: Ayat 1 Sura 63 (Munafiqoon).

(V) Muhajir: Ayat 72 of Sura 8 (Anfaal).

(VI) Mujahid: Ayat 19 of Sura 9 and Ayat 95 of Sura 4. The Ayat classifies the believers who
sit at home i.e. refractory from others who strive in the path of Allah.

(VII) Ansaar: Ayat 72 of Sura 8 (Anfaal).

(VIII) The First Migrants to Habsha:

(IX) Ashra Mubasharah: (The ten companions to receive tidings of Salvation)

(X) Badri companions: Reference Ayat 72 Sura 8 of the Holy Qur'an.

(XI) Ashab us Shajrah. (Those who submitted under the free)

(XII) Those who accepted Islam before the conquest of Makkah. Reference Ayat 10 Sura
57.

(XIII) Those who accepted Islam after conquest of Makkah.

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(XIV) Ahle-e-Bait-e-Rasool. Ayat 33 Sura 33.

(XV) Ummahat-ul-Momineen. Ayat 6 Sura 33.

(XVI) People of the Book: i.e. Ahl-e-Kitab. Ayat 70 Sura 3

(XVII) The four rightly guided Caliphs.

(XVIII) Division as regards the period: the pre-Islamic period bereft of Divine Guidance is
known as Ayyam-ul-Jahilia. The Holy Prophet (p.b.u.h.) is the line of demarcation between
the period of darkness and light.

(XIX) The Muslims as a whole, followers of the last Prophet (p.b.u.h.), have been classified
as Ummat-e-Wusta to distinguish them from the Ummah of the previous Prophets and
contemporary nations. Reference Ayat 143 Sura 2 Sura Al-Baqra,

(XX) Ayat 7-11 of Surah Waqia, Sura 56 of the Holy Qur'an divides human beings into three
classes namely;

(i) Companions of the right hand (good luck) Ashab ul Maimanah;

(ii) Companions of the left hand (ill luck) Ashab ul Mashamah.

(iii) the Foremost in faith. As-Sabeqoon. Of-course this division is applicable to hereafter but the
fact of the matter is that the concept of classification according to the Injunctions of Islam is

1469
applicable not only to the mundane life but also to the life after death.

(XXI) Believers and Unbelievers. Ayat 254 Sura 2

(XXIII) Reference may also be made to Ayat 177 of Sura 2 (Al-Bagra). In this verse the attributes
of a believer are enumerated including the trait that he spends for the love for Allah upon the
various classes of persons:

(i) Near of kin,

(ii) Orphans,

(iii) Needy,

(iv) The way-farer

(v) Those who asked for help; and

(vi) For emancipation of captives.

Existence of various classes of persons in the society at a given time is recognized in this verse.

(XXIII) Denizens of Heavens and Hell is another division visible in the Holy Book. Reference

1470
Ayaat 1-16 Sura 58 (Al-Ghashia The Overwhelming Event).

(XXIV) The Meccans had objected to the mission of the Holy Prophet (p.b.u.h.) on the ground
that he was neither a chief of the tribe nor a wealthy person. This division, according to non-
believers at social level was natural and customary because honour was considered to be the
preserve of the privileged classes. But the Holy Prophet (p.b.u.h.) became a class unto himself.

(XXV) Some people, at the time of Revelation, raised an objection as to why revelation was not
directed towards some significant person of Macca or Taif. Ayat 31 states that the blessings of
Allah i.e., revelation cannot be divided though material wealth has been divided among people
in a way that some are exalted. Abundance of resources is only the provision of this life. The
first part classifies human beings into those who are entrusted with Revelation while the other
groups received the Message through the Messenger and the second part of these Ayaat deal
with un-even distribution of wealth among the people. Reference Ayaat 31-35 Sura 43 Al-
Zukhraf.

(XXVI) In the case of divorce, men may enter into another matrimonial contract soon after the
divorce; but the women have to wait for a certain period. Reference Ayat 229 Sura 2. This
classification is an admitted fact of life notwithstanding the equality of social, political, cultural
and 'economic rights between men and women. There is a rational basis for this restriction i.e.,
the protection of lineage. This however does not become an instance of discrimination. Equality
of rights between men and women is however evident inter-alia from Ayat 195 Sura 3, Ayaat
32, 124 Sura 4; Ayat 97 Sura 16 and Ayat 35 Sura 33.

(XXVII) Men have been declared as protectors and maintainers of women. This is what Ayat 34
Sura 4, (Al-Nisa The Women) ordains. Inspite of equality of rights the classification has been
prescribed on rational basis. The husband, being the male partner, has also to bear the cost of a
wet nurse as provided in Ayat 233 Sura 2 (Al-Baqra The Cow).

(XXVIII) There is yet another Injunction of Islam contained in Ayat 8 Sura 76 (Al-Insan) which,
while recounting the attributes of believers, signifies that a believer for the love of God alone
provides sustenance to the three disadvantaged classes i.e. (i) indigent (ii) orphan and (iii) the
captive. By following this commandment the believer is satisfied that he is doing it for the sake

1471
 of God alone and no one else and he desires no reward or thanks from any one because he
fears the Day of distressful wrath from the side of his Lord. Such believers stand distinct from
other believers. The three categories of the needy recipients are also recognized, though the
purpose of charity itself was to eradicate poverty.

(XXIX) The Holy Book recounts different categories of people (at spiritual level and otherwise)
under separate heads:---

(a) The Deaf: Ayat 18 Sura 2

(b) The Dumb: Ayat 18 Sura 2
(c) The Blind: Ayat 18 Sura 2
(d) People of the Ditch: Ayat 4 Sura 85
(e) People of the Town: Ayat 13 Sura 36
(f) Inmates of the fire: Ayat 17 Sura 68
(g) People of the Elephant: Ayat 1 Sura 105
(h) People of Rome: Ayat 1 Sura 30
(i) People of the cave and inscription: Ayat 9 Sura 18.
(j) Ibad-ul-Mumineen; Ibad-us-Saleheen, Ayat 25 Sura 12; Ayat 81, 111, 122, 133; Ayat
Ibadenal Mukhlassen 10 Sura 66.

(XXX) Though each lunar month has a distinct name yet the four months are considered sacred. These
sacred months constitute a separate class. Reference Ayat 194 Sura 2 and Ayat .36 of Sura 9.

(XXXI) Only two mosques have been reverentially mentioned in Holy Qur'an: Ayat 1 Sura 17 and Ayat
125 Sura 2 as well as Ayat 96 Sura 3. See also Ayat 97 Sura 5 as well as Ayat 29 Sura 22. -

(XXXII) The three Mosques namely the Holy Kaaba, the Mosque of Holy Prophet (p.b.u.h.) and the
Mosque at Aqsa had acquired a distinctive status as compared to other mosques. Each one of these
Mosques is a class unto itself though each mosque is the house of God.

1472
(XXXIII) According to Ayat 25 Sura 4, the punishment of a slave married woman, guilty of adultery, is half
the punishment of a free guilty woman. On the other hand the wives of the Holy Prophet (p.b.u.h.) were
warned that if any indecency was committed by them the chastisement shall be double the prescribed
punishment --- Ayat 30 Sura 30 of the Holy Qur'an. Classification among the wrong doers for the
purpose of awarding lesser punishment has also been made. Leniency to members of under-priviledged
sections of society is manifest in this Divine rule. Less fortunate social groups will be awarded lesser
penalty whereas persons belonging to privileged groups, who had better facilities to lead life according
to legal rules will receive exemplary punishment in case of transgression.

(XXXIV)Ayat 32 Sura 3 of the Holy Qur'an declares that surely Allah chose Adam and Noah and the
descendents of Abraham and the descendents of Imran above the nations.

All these references are a pointer to the principle that notwithstanding general equality among human
beings, the rule of classification is an established principle of Islamic Jurisprudence. It does not amount
to discrimination if Allah selects one human being or one family to spread His Message.

H. The concept of ranking persons according to their deedsis familiar to Holy Qur'an. Ayat 19 of Sura 4,
Sura al-Ahqaf states:

"Of these all have ranks

According to their deeds

So that Allah may

Recompense them for

Their deeds. They shall not be wronged".

33. Ayat 10 of Sura 57, (Al-Hadid) declares that those believers, who spent their wealth and took part in
fighting before the Victory (conquest of Mecca), cannot be equated (with those who spent their wealth
and took part in fighting afterwards). They are higher in rank than those who spent and fought
afterwards.

1473
34. Ayaat 95,96 of Sura 4, allude to the higher ranks of believers according to their deeds. Ayat 132 of
Sura 6, (Al-An'am) states in very clear terms that every human being is assigned a station according to
his deed because Allah is not heedless of what people do. All human beings are equal but, at the same
time, each individual is a class in himself. Now we know it as a scientific truth that finger prints of each
individual are different. Ayat after Ayat can be quoted to establish that reasonable classification is an
accepted principle of Islamic jurisprudence which is as old as the Revelation and the creation of Adam
and Eve: But it should not be confused with the equality clause which is a principle of general
application in Islamic Fiqh.

35. During the course of arguments on the question of classification of prisoners and the elements of
reasonable classification, reference was made to the principle of equality as envisaged in Article 25 Of
the Constitution of Islamic Republic of Pakistan particularly clause (2) where the words "discrimination"
and "alone" occur. The meaning and scope of the words "discrimination" and "alone" as they occur in
clause (2) of Article 25 were discussed in the case 'of Shireen Munir and others versus Government of
Punjab reported as PLD 1990 SC 295. Mr. Justice Shafi-ur-Rehman, author of the Judgment at page 309.,
was pleased to observe as follows:---

"Discriminating against a group or an individual implies making an adverse distinction with

regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision
is self evident. In interpreting Constitution and also in giving effect to the various legislative
measures, one distinction has to be consistently kept in view and it is that classification based on
reasonable considerations is permissible and not violative of the principle. This aspect of the
matter was dealt with in a case in the Indian Jurisdiction in Kathi Raning Rawat v. State of
Saurashtra (AIR 1952 SC 123) in the judgment of the Chief Justice in the following words:---

"Discrimination thus involves an element of unfavourable bias and it is in that sense that the
expression has to be understood in this context. If such bias is disclosed and is based on any of
the grounds mentioned in the Articles it may well be that the statute will, without more, incur
condemnation as violating a specific constitutional prohibition unless it is saved by one or other
of the provisos to those articles. But the position under Article 14 is different. Equal protection
claims under that article are examined with the presumption that the State action is reasonable
and justified. This presumption of constitutionality stems from the wide power of classification
which the legislature must, of necessity, possess in making laws operating differently as regards
different groups of persons in order to give effect to its policies".

1474
36. This report was also considered in the case of I. A. Sherwani which is proposed to be discussed
shortly.

37. The question of grant of class "A" or "B" to a prisoner had come before the Honourable Supreme
Court of Pakistan in the case of Abdul Rashid versus The State reported as 1980 SCMR 632. It was held
that no justiciable right vests in a prisoner to seek better class even though he is shown as eligible to
better class of prisoners.

38. The case of Waheed Akhtar versus Superintendent Camp Jail, Lahore and another, reported as PLD
1980 Lah. 131, a judgment delivered by Justice Aftab Hussain, as his Lordship then was, pertained to
rules 243, 246, 248 and 250 of the Prison Rules. It was held that the Prisons Rules have made different
provisions for convicted prisoners and under-trial prisoners.

39. Reference may also be made to the case of Pakistan Petroleum Workers Union v. Ministry of Interior
reported as 1991 CLC 13 wherein this history of concept of "Equality before law" as it occurs in Article 25
of the Constitution has been traced in the following terms:---

"This Article guarantees to all citizens of Pakistan equality before law and equal protection of
law. These rights guaranteed by the Constitution are now universally applied and practised in all
the civilized world. It finds recognition in Universal Declaration of Human Rights and the
Covenant on Human Rights, 1950. An examination of Constitution of various countries will show
that the written Constitutions have invariably used the expression "equality before law" but
"equal protection of law" has not so commonly been used. According to the jurists term "equal
protection of law" finds it origin in the 14th Amendment of the American Constitution. In my
humble view, the concept of both terms "equality before law" and equal protection of law" is
not of so recent origin in jurisprudence as described by various authors and jurists. From a
comparative study of the legal history and jurisprudence we find that the concept of equality
before law and principles of "equal protection of the law" was for the first time given and firmly
practised by the Holy Prophet (p.b.u.h.). Therefore, it can be traced as far back as 1400 years,
i.e. much before the Magna Carta, 14th Amendment of American Constitution, declaration of
Human Rights and the theory of Rule of law, enunciated by the Western Jurists. The last Sermon
of the Holy Prophet (p.b.u.h.) is a landmark in the history of mankind which recognizes the

1475
 inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights.
The following extracts from the farewell Sermon can be reproduced for reference. The blood
revenges of the days of ignorance are remitted... all interest and usurious dues accruing from
the times of ignorance stand wiped out.

" O people, verily your blood, your property and your honour are sacred and inviolable until you
appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and
this very town (of yours): Verily you will soon meet your Lord and you will be held answerable
for your action".

40. This classification helps the jail officials in keeping different categories of prisoners in separate cells.
This type of classification is based upon the status of the prisoner and has no nexus with the nature of
offence complained of. This classification is categorized as "A", "B" and "C" class as stipulated in Rule
242 of the Pakistan Prisons Rules. The prisons too have been classified. Chapter 2, rule 4 through rule 9
of the Pakistan Prisons Rules, 1978 deals with classification of Prisons into four categories: The Central
Prisons; Special Prisons, District Prisons and Sub-Jail. There is also the category of a Female Prison which
is located in Multan.

41. We expected that each and every provision of prison discipline, challenged before us, would be
supported by reference to a distinct injunction of Islam. During the course of arguments learned counsel
for Parties relied upon a few very well known verses of Holy Qur'an and two or three traditions of the
Holy Prophet (p.b.u.h.). In order to fully appreciate the issues involved in the controversy we have
detailed in this Judgment various rules relating to classification of prisoners because this issue is not as
simple as it was given out at the time these petitions were filed in this Court. The question of
classification of prisoners as well as the prisons is very much linked with the question of security and
safety of the prisons, prisoners and prison staff. The prison rules cover the entire discipline including the
management and supervision of prison houses apart from maintenance of peaceful atmosphere as well
as law and order situation within the prison precincts in addition to health and cleanliness facilities,,
food requirements, technical and educational training of prisoner population, the regular outward and
inward flow of prisoners for attendance in the trial courts and a host of other factors obtaining at the
spot. This aspect also explains the reason for maintaining division and classification among the prison
population. The courts are not required to hunt for the reasonableness of each individual provision of
law. There is a general presumption of laws having been made validly. Suffice it to say that the entire
law on a given subject has to be seen as one integrated whole to cater to social requirement in a
particular chapter of human life.

1476
42. In response to a Court question, learned counsel for the petitioner frankly conceded that there was
no prison system in Mecca and Madina during the time of Holy Prophet (p.b.u.h.). The words Sijan i.e.
prison, Aseer i.e. a prisoner, Hubs i.e. restraint and Mask i.e. to confine, are words of Arabic language.
The Holy Qur'an used the then current words Sijan, Aseer, Mask and Habs as part of the erstwhile
system of administration of justice. There are no verses of Holy Qur'an or traditions of Holy Prophet
(p.b.u.h.) to provide extensive guidelines on different chapters of prison discipline which could become
the basis on which the existing prison legislation could have rested. There are certain injunctions of
Islam, of general import, which have relevance with administration of justice, human dignity and human
welfare. However the specific Injunctions advanced by the petitioners on these issues will be
considered.

43. In the case of Balochistan Bar Association versus Government of Balochistan cited as PLD-1991
Quetta 7, the Civil Law (Special Procedure) Ordinance I of 1968 and Criminal Law Special Provisions of
Ordinance II of 1968 were declared to be void as being inconsistent with Articles 25, 2A and 175(3) of
the Constitution. The Court came to the conclusion that the said Ordinances gave unbridled, unfettered
and unlimited powers to apply or withdraw the provisions of the Ordinance in any area of the Province
without any rational basis and as such discriminated amongst the people or class of people living in the
like circumstances. The application of Ordinance was neither universal nor uniform and it had been left
entirely to the whims and caprice of the Government to decide, without any rational basis, to withdraw
the Ordinance or re-apply the same in any area in a most subjective manner. It was held that this type of
classification was neither intelligible nor reasonable nor it was discernible and thus offended Articles 4
and 25 of the Constitution. This case went into appeal which was decided as Government of Balochistan
versus Aziz Ullah Memon and 6 others reported as PLD 1993 SC 341. The Apex Court was pleased to
confirm the Judgment of the Quetta High Court reported as PLD 1991 Quetta page 7. The apex Court
was pleased to re-affirm the principles enunciated in the case of I.A. Sherwani. The Supreme Court while
referring to the case of F.B. Ali reported as PLD 1975 SC 506, observed that the principle laid down in
Waris Meah's case was that if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive
jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not
succeed as the offences under, the Foreign Exchange Regulation could validly and reasonably be
considered a different class from the offences under the ordinary law. It was further observed that Fauji
Foundation case reported as PLD 1983 SC 457, ruled that legislation in regard to an individual can be
made provided it is not discriminatory. The Honourable Judges were pleased to hold that although class
legislation was forbidden, yet reasonable classification for the purpose of legislation was permissible.
Classification is allowed in the legal domain provided the classification is founded on intelligible
differentia. There should be a nexus between the classification and the objects of the Act. This principle
symbolizes that persons or things similarly situated cannot be distinguished or discriminated while
making or applying the law. It has to be applied equally to persons situated similarly and in the same
situation. Any law made or action taken in violation of these principles is liable to- be struck down. If the

1477
law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to
administer in a discriminatory manner, such law will violate the equality class. Thus the substantive and
the procedural law and action taken under it can be challenged as violative of Articles 8 and 25".

44. In the case of I. A. Sherwani and others versus Government of Pakistan reported as 1991 SCMR 1041,
the provisions contained in Article 25 of the Constitution came under review of the apex Court. It was
observed therein that clause (1) of Article 25 enshrines the basic concept of religion of Islam, which is
now known as the golden principle of Modern Jurisprudence. This principle enjoins that all citizens are
equal before law and are entitled to equal protection of law. The apex court, after reviewing eleven
judicial pronouncements from Pakistan and Indian jurisdiction, was pleased to deduce, formulate and
enumerate the following seven principles with regard, to equal protection of law and reasonableness of
classification:

(i) that equal protection of law does not envisage that every citizen is to be treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be
treated alike;

(ii) That reasonable classification is permissible but it must be founded on reasonable distinction
or reasonable basis;

(iii) That different laws can validly be enacted for different sexes, persons in different age
groups, persons having different financial 'standings, and persons accused of heinous crimes;

(iv) That no standard of universal application to test reasonableness of a classification can be

laid down as what may be reasonable classification in a particular set of circumstances may be
unreasonable in the other set of circumstances;

(v) That a law applying to one person or one class of persons may be constitutionally valid if
there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded
on any rational basis is no classification as to warrant its exclusion from the mischief of Article
25;

1478
 (vi) That equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;

(vii) That in order to make a classification reasonable, it should be based:

(a) On an intelligible differentia which distinguishes persons or things that are grouped together
from those who have been left out;

(b) That the differentia must have rational nexus to the object sought to be achieved by such
classification.

45. Syed Shabbar Raza Rizvi as his lordship then was, in his Book on the Constitution of Islamic Republic
of Pakistan, while commenting on Article 25 _made a reference to a passage from V.N. Shukla's
Constitution of India, 7th Edition wherein the learned author had formulated certain principles as
regards the question of classification, based upon various judgments of Indian Supreme Court, delivered
under Article 14 of Indian Constitution, which is counterpart of section 25 of the Constitution of
Pakistan. The Principles enunciated therein are as follows:

(a) A law may be constitutional even though it relates to a single individual if, on account of
some special circumstances, or reasons applicable to him and not applicable to others, that
single individual may be treated as a class by himself.

(b) There is always a presumption in favour of the constitutionality of an enactment and the
burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles. The person, therefore, who pleads that Article 25, has been violated,
must make out that not only has he been treated differently from others but he has been so
treated from persons similarly circumstanced without any reasonable basis and such differential
treatment has been unjustifiably made. However, it is extremely hazardous to decide the
question of the constitutional validity of a provision on the basis of the supposed existence of

1479
facts by raising a presumption. Presumptions are resorted to when the matter does not admit of
direct proof or when there is some practical difficulty to produce evidence to prove a particular
fact;

(c) It must be presumed that the Legislature understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based on adequate grounds;

(d) The Legislature is free to recognize the degrees of harm and may confine its restriction to
those cases where the need is deemed to be the clearest;

(e) In order to sustain the presumption of constitutionality, the Court may take into
consideration matters of common knowledge, matters of common report, the history of the
times and may assume every state of facts which can be conceived existing at the time of
legislation;

(f) While good faith and knowledge of the existing conditions on the part of the Legislature are
to be presumed, if there is nothing on the face of the law or the surrounding circumstances
brought to the notice of the Court on which the classification may reasonably be regarded as
based, the presumption of the constitutionality cannot be carried to the extent of always
holding that there must be some undisclosed and unknown reasons for subjecting certain
individuals or corporations to hostile or discriminating legislation;

(g) A classification need not be scientifically perfect or logically complete;

(h) The validity of a rule has to be judged by assessing its overall effect and not by picking up
exceptional cases. What the Court has to see is whether the classification made is a just one
taking all aspects into consideration.

1480
46. Reference may also be made to the case of Ghulam Mustafa Insari and 48 others versus Government
of Punjab and others reported as 2004 SCMR 1903 wherein the interpretation of Article 25 cropped up
for consideration. The seven principles enunciated in the case of I.A. Sherwani were reiterated and it
was further held that:---

" .:.:.. the right relating to the equality of citizens was not violated, if the discrimination
proceeded on a rational classification, having relevance to the underlying object of the
legislation."

"……..that the principle of equality did not mean that every law

must have universal application to all persons who were not by nature, attainment or
circumstances in the same position. The varying needs of different classes of persons required
different treatment. Classification was the recognition of the relations, and, in making it, a
legislature must be allowed wide latitude of discretion and judgment."

"………the Courts did not expect from legislature a "scientific accuracy in classification adopted".

"……..that the State was empowered to distinguish and classify

persons or things for the purpose of legislation and that a classification need not be scientifically
perfect or logically complete."

"………..that the guiding principle of equality was that all persons

and things similarly circumstanced would be treated alike both in respect of privileges conferred
and liabilities imposed."

47. As regards the vires of a statute, the Honourable Judges of the Apex Court in this very case also held
(at page 1921) that the courts generally lean towards upholding the constitutionality of a statute rather
than destroy it unless such a statute is ex-facie discriminatory or capable of discriminatory application

1481
and otherwise clearly violative of any provision of the Constitution. At page 1923 the learned author
judge was pleased to hold further that the Court cannot question the wisdom of the legislature merely
on the ground that a provision of law may work, some inconvenience or hardship in the case of some
persons unless it is violative of a constitutional provision including fundamental rights and further that
the vires of a legislative measure including an Ordinance are not to be examined with reference to any
idea or philosophy extraneous to the Constitution but the Constitutional provisions themselves as-held
in Liaqat Hussains's case PLD 1999 SC 504. The cases of Malik Khizar Hayat PLD 1956 F.0 200 and Prafulla
Kumar Das AIR 2003 SC 4506 (2003) 11 SCC 614. Reference in the case of Ghulam Mustafa Ansari was
made to the case of Mehreen Zaibun Nisa versus Land Commissioner, Multan and others PLD 1975 SC
397; The Province of East Pakistan and others versus Sirajul Haq Patwari and others PLD 1966 SC 854,
Inam-ur-Rehman versus Federation of Pakistan and others, 1992 SCMR 563 and Darbar Patiala through
S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala versus Firm Narain Das Gulab Singh of
Jagadhri through Kr. Kishore Saren and others AIR 1944 Lah. 302.

48. In the case of Liaqat Hussain versus Federation of Pakistan PLD 1999 Supreme Court 504 at page
591, the author Judge observed that a validly enacted law cannot be struck down on the grounds of
mala fide. On page 632 it was further observed that no mala fide can be attributed to the Parliament as
it is a sovereign body to legislate on any subject, for which it has been empowered under the
Constitution to legislate. The Court, it was further observed, cannot strike down a statute on the ground
of mala fide, but the same can be struck down on the ground that it is violative of a Constitutional
provision. The Honourable Judge made a reference to the case of Mehr Zulfiqar Ali Babu and others
versus Government of Punjab and others reported as PLD 1997 SC 11.

49. In the case of Muhammad Ramzan and three others versus Government of Pakistan, a case decided
by a Division Bench of the Lahore High Court, Lahore reported as 2004 YLR 1856, the issue of reasonable
classification came up for discussion. Honourable Judges after reviewing the case law, adverted again to
the principle enunciated in the case of I.A. Sherwani and came to the conclusion that different laws
could validly be enacted for different sexes, persons and different gaups and persons having different
status or financial standing etc. It was further held that the Court is not required to run behind the
wisdom of the legislature or to challenge or discard the same. The courts of law are under obligation to
give effect to the laws as they stand. The controversy in this case arose out of the point whether the
Punjab Local Government Ordinance, 2001 was ultra vires the constitutional provisions contained in
.Articles 8 and 25 inasmuch as it creates two classes of persons, one coming to their office through a
direct vote of the electors of their respective constituency and the other reaching their office through an
indirect vote. The court held that the law was not discriminatory because discrimination has to be within
one group or classification.

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50. Reference may also be made to the case of Pakistan Petroleum Workers Union v. Ministry of Interior
reported as 1991 CLC 13 wherein the history of concept of "Equality before Law" as it occurs in Article
25 of the Constitution has been traced in the following terms:--

"This Article guarantees to all citizens of Pakistan equality before law and equal protection of
law. These rights guaranteed by the Constitution are now universally applied and practised in
the civilized world. It finds recognition in Universal Declaration of Human Rights and the
Covenant on Human Rights, 1950. An examination of Constitutions of various countries will
show that the written Constitutions have invariably used the expression "equality before law"
but "equal protection of law" has not so commonly been used. According, to the jurists term
"equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In
my humble view, the concept of both terms "equality before law" and equal protection of law"
is not of so recent origin in jurisprudence as described by various authors and jurists. From a
comparative study of the legal history and jurisprudence we find that the concept of equality
before law and principles of "equal protection of the law" were for the first time given and
firmly practiced by the Holy Prophet (p.b.u.h.). Therefore, it can be traced as far back as 1400
years, i.e. much before the Magna Carta, 14th Amendment of American Constitution,
declaration of Human Rights and the theory of Rifle of law, enunciated by the Western Jurists.
The Last Sermon of the Holy Prophet (p.b.u.h.) is a landmark in the history of mankind which
recognizes the inalienable Rights of a man conferred by Islam which are now known as
Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for
reference. The blood revenges o f th e days of ignorance are remitted... all interest and usurious
dues accruing from the times of ignorance stand wiped out.

" O people, verily your blood, your property and your honour are sacred and inviolable until you
appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and
this very town (of yours). Verily you will soon meet your Lord and you will be held answerable
for your action."

51. The concept of reasonable restriction, as it emerged as a consequence of interpretation of

constitutional provisions including Article 25 enshrined in Chapter I of Part II of the Constitution, is not
alien to Islamic teachings. Right of life on the one hand, is respected to such an extent that the killing of
one person, without legal sanction, is declared in Ayat 32 Sura 5 (Al-Maida: The Food) of Holy Qur'an,
equal to the killing of entire humanity, but we find that the law of Qisas is also recognized by Holy
Qur'an. Similarly as against the right that no one shall cause injury to human body the principle of
retaliation permits causing similar injury to the offender. Reference Ayaat 178, 179 & 194 of Sura 2, (Al-

1483
Baqra) and Ayat 45 of Sura 5, (Al-Maida).

52. In this connection it might as well be stated that the concept of human dignity received legal
recognition for the first time when Ayat 70 of Sura 17, Sura Bani Israil was revealed. It declared:---

"And surely WE have conferred dignity on the children of Adam, and WE carry them in the land
and in the sea, and WE have given them of the good things, and WE have made them to excel,
by a high degree of excellence, most of those whom WE have created".

But in spite of this honour, there are people who commit crimes and sins. These are the persons who
choose to tear as under the robe of dignity and consequently merit a different treatment as a separate
class of criminals/sinners and transgressors against accepted norms.

53. Every human being enjoys the right and freedom of expression but Islamic Injunctions put a limit on
the exercise of this fundamental right because an individual is not authorized to violate similar rights of
others on the pretext of realization of his own basic rights. The violators are however a different class
altogether. Following Injunctions of Holy Qur'an are being cited in support of the proposition that even
fundamental rights are not absolute in the eyes of law:--

(1) There is no compulsion in Deen (loosely translated as religion): Ayat 256 of Sura 2 (Al-Baqra).
It clearly means that a person is free to choose or reject a faith and he has no right to abuse or
ridicule the beliefs of others because the others have a similar right.

(2) Every person has a right to marry and raise a family but societies and religion prohibits
incest. Ayat 23 Sura 04 (An-Nisa).

(3) The right of ownership over wealth is absolute but Allah and His Apostle, PBUH, impose
obligatory taxes upon the believers Zakat, Khums, Ushar, Sadaqaat etc. Ayat 60 Sura 9; Ayat 41
Sura 8, and Ayat 43 Sura 2.

1484
54. We are conscious of the fact that under Article 8(I) of the Constitution any law, custom or usage
having the force of law, in so far as it is inconsistent with the rights guaranteed in Chapter 1 of the
Constitution, shall to the extent of such inconsistency be void. Clause (2) of Article 8 stipulates 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 that extent be void. The petitioners in the Shariat Petitions and
Shariat Miscellaneous Applications did not Opt to challenge the various provisions of prison laws in the
High Court or Supreme Court of Pakistan on the authority of Article 08 which means very clearly that the
petitioners did not consider the impugned provisions to be violative of the fundamental rights as
enshrined in Chapter I of Part-II of the Constitution. Needless to say that all the rights guaranteed by the
Constitution are firmly based upon various Injunctions of Islam. The existing provisions of prison
legislative instruments are therefore presumed to be valid', legal and not violative of the constitutional
guarantees unless proved to the contrary. There is a presumption of constitutionality attached to every
legislative instrument. The Supreme Court of Pakistan in the case of Ghulam Mustafa Insari and 48
others versus Government of the Punjab and others reported as 2004 SCMR 1903 at page 1921, after
referring to the cases of:--

(a) East Pakistan and others v. Sirajul Haq Patwari and others reported as PLD 1966 SC 854;

(b) Inamur Rehman v. Federation of Pakistan and others reported as 1992 SCMR 563; and

(c) Darbar Patiala through S. Ajmer Singh v. Firm Narain Das reported as AIR 1944 Lah. 302;

observed that the Courts generally lean towards upholding the constitutionality of a statute rather than
destroy it unless such a statute is, ex-facie discriminatory or capable of discriminatory application and
otherwise clearly violative of any provision of the Constitution.

55. It will be useful to mention a few more reports on the question of equality before law, reasonable
classification and discrimination in order to make the proposition clear. In the case of Zohra and 5 others
versus the Government of Singh, Health Department reported as PLD 1996 Kai. 1, the Full Bench of the
Court held that:--

1485
 "The basic or fundamental rule is that all persons, under like circumstances and conditions, shall
be treated alike both in privileges conferred and in liabilities imposed. Thus, discrimination
between persons or classes or persons similarly situated or circumstances is prohibited or, in
other words, class legislation is forbidden. It follows that the rule does not prohibit different
laws or different treatment for those differently circumstances and the State has the power to
distinguish or classify persons or things and to make laws or rules applicable only, to the persons
or things falling within the particular class. However, a classification which is arbitrary or
capricious and not founded on any rational basis or which has no rational nexus with the object
sought to be achieved by the law or the rules is no classification. It must, therefore, be
reasonable and rest upon a difference which is real as distinguished from one which is seeming,
specious or fanciful. Thus, classification would be reasonable and valid:

(i) if it is based on intelligible differentia which distinguishes persons or things that are grouped
together from those that have been left out; and

(ii) if it has rational nexus with the object sought to be achieved by it.

It was further held that "Intelligible differentia" means "an attribute by which a species is distinguished
from all other species of the same genus, or, a distinguishing mark".

56. In the case of 7-UP Manufacturers versus Federation of Pakistan and others reported as 1994 CLC
1251, an Honourable Judge of the Lahore High Court observed that "equality clause in Article 25 of
Constitution of Pakistan, did not forbid reasonable classification, but classification must not be only
reasonable and rational, but it should also be based upon intelligent differentia and must have nexus to
the purpose for which law was enacted--- All persons who were similarly placed in similar circumstances,
must be treated equally".

57. In the case of Abdul Farid versus N.E.D. University of Engineering and Technology, Karachi and
another reported as 2001 CLC 347, while considering the scope of the concept of reasonable
classification, it was held that all persons cannot be alike in all circumstances and the concept of
reasonable classification is implicit in .Article 25 of the 'Constitution. It was further held that where the

1486
classification is rational and based upon intelligible differentia bearing a direct nexus with the object of
law, such classification passes the test of constitutionality.

58. In the case of Pakistan Burmah Shell Limited and another versus Federation of Pakistan reported as
1998 PTD 1804 the Full Bench at pages 1860 and 1861 referred to the following observation made in the
case of F.B.. Ali as regards equal protection of law and reasonable classification:----

"Equal protection of the laws does not mean that every citizen, no matter what his condition,
must be treated in the same manner. The phrase `equal protection' of the laws means that no
person or class of persons shall be denied the same protection of laws which is enjoyed by other
persons or other class of persons in like circumstances in respect of their life, liberty, property or
pursuits of happiness. This only means that persons, similarly situated or in similar
circumstances, will be treated in the same manner. Besides this, all law implies classification,
for, when it applies to a set of circumstances, it creates thereby a class and equal protection
means that this classification should be reasonable. To justify the validity of a classification, it
must be shown that it is based on reasonable distinctions or that it is on reasonable basis and
rests on a real or substantial difference or distinction. Thus, different laws can validly be made
for different sexes, for persons in different age groups, e.g. minors or very old people; different
taxes may be levied from different classes of persons on the basis of their ability to pay.
Similarly, compensation for properties acquired may be paid at different rates to different
categories of owners. Such differentiation may also be made on the basis of occupations or
privileges or the special needs of a particular locality or a particular community. Indeed, the bulk
of the special laws made to meet special situations come within this category".

59. In the case of Messrs Shadman Cotton Mills Limited versus Federation of Pakistan reported as 2001
PTD 411, the principle of equality came under discussion and it was held that all persons placed in
similar circumstances must be treated alike and the reasonable classification must be based on
reasonable grounds in a particular set of circumstances but it must not offend the spirit of Article 25 of
the Constitution. The Honourable Judge further observed that persons equally placed must be treated
alike in the matter of privileges and liabilities under the rule of equal protection of law.

60. Again in the case of Pattoki Sugar Mills Limited versus Province of Punjab and others reported as
2001 PTD 3415 a learned Single Bench of the Lahore High Court observed that reasonable classification
was not prohibited by the Constitution and the same requires that all persons similarly placed should be

1487
treated alike.

61. In the case of Muhammad Safdar versus Government of Sindh and others reported as 2001 PLC 692
the Supreme Court of Pakistan considered the concept of "equal protection of law" And "reasonable
classification" and proceed to enunciate 7 principles applicable to the equality clause of the
Constitution. These 7 points have already been considered above in the case of I.A. Sherwani reported
as 1991 SCMR 1041.

62. On the question of equal protection of law, discrimination and reasonable classification the following
cases may also be seen in addition to those mentioned above:

(1) Bashir Ahmed v. Chaudhry Ghulam Sarwar Noor MIC, Lahore and 3 others 2002 CLC 139
(Lahore High Court, Lahore).

(2) Federation of Pakistan and others v. Mrs. Samra Shakeel 2001 PTD 3919 (Supreme Court).

(3) Safdar v. Government of Sindh and others 2001 SCMR 1231.

(4) Amanullah versus Secretary to Government of N.-W.F.P. and 5 others PLD 2003 Pesh. 14.

(5) Muhammad Akram & others versus Selection Committee for Admission in First Year M.B.,B.S.
Bolan Medical College and others 2003 CLC 18 (Quetta).

(6) Shaikh Aijazur Rehman v. The State through Director-General (NAB) and another PLD 2006
Kar. 629.

1488
 (7) Shaikh Abdul Sattar Lasi v. Federation of Pakistan 2006 CLD 18 (Quetta High Court).

(8) Saleem Raza and 31 others versus The State PLD 2007 Karachi 139

(9) Dr. Munir Ahmad and 37 others v. Government of Pakistan Finance Division and 4 others
2007 CLC 107.

(10) Ch. Nazir Ahmad and 2 others v. Province of Punjab 2007 PLC (C.S.) 285.

(11) Miss Shazia Batool v. Government of Balochistan and others.2007 SCMR 410.

63. In a recent case of Ibrahim Flour and General Mills District Sheikhupura versus Government of
Punjab reported as PLD 2008 Lah. 184 a learned Single Bench of the Lahore High Court after reviewing
three reported cases came to the conclusion that the act of omission on the part of authorities in
ignoring the petitioner mill owner, for the grant of wheat quota, was un-lawful, discriminatory and of no
legal effect. It was also observed that Government is not supposed to discriminate between citizens,
who are placed in similar circumstances and functionaries of the Government cannot be allowed to
exercise discretion on their whims, sweet will or in a manner it pleased them. It was further held the
supply of wheat quota to one set of mill owners and its refusal to petitioners was "sheer discrimination,
conceived and tainted with defect of naked and unbridled discretion."

64. Dr. Muhammad Aslam Khaki, learned counsel appearing in various Shariat Petitions before us,
submitted a research note in Shariat Petition No.62/I of 1992 in which the following points were raised
with reference to the Islamic teachings:

(a) Islam came basically to establish justice and all its injunctions are directed towards the
achievement of this particular goal;

1489
(b) Ayat 25 Sura 57, (Al-Hadeed) is to the effect that the Prophets were commissioned with Book
and Balance so that people stand for justice;

(c) Ayat 58, Sura 4 (An-Nisa) commands that trusts be handed over to the deserving and justice
should be done;

(d) Ayat 13, Sura 49 (Al-Hujrat) informs us that human beings, created from a single pair, were
then divided in tribes and nations so that people may know each other;

(e) Ayat 90, Sura 16, (Al-Nahl) indicates that Allah commands the doing of Adl (Justice) and
Ehsan (Equity).

(f) Ayat 115, Sura 6, (Al-Anaam) tells us that the Word of God finds fulfillment in Truth and
Justice;

(g) Ayat 2, Sura 24, (An-Noor) shows that tenderness for culprit should not affect administration
of criminal justice;

(h) The element of equality between human beings has been commanded by Holy Prophet
(p.b.u.h.) as declared in Khutba Hujjat-al Wida. Legal provision which permit grouping of the
prisoners in category "A", "B" and "C" are hence discriminatory.

(i) The cause of fall of nations is relatable to the fact that rich/influential culprits were let off
while the penal provisions were imposed only upon those who belonged to poor section of
society. It was therefore waged that the element of discrimination' is ultra vires the Injunctions
of Islam. The other well known tradition of the Holy Prophet (p.b.u.h.) that even if his daughter
Fatima were to commit a crime she would not escape the requisite penalty. This tradition was
relied upon to show that Islamic Injunctions do not countenance inequality and discrimination.

1490
 (j) A quotation from the letter of Hazrat Umar (R.A) addressed to Abdu Musa Ashari, directing
him to hold fast to the equality between the litigating parties even when he addresses them
because the influential may not start expecting more and the weak should not get disappointed.

65. All these references, according to the learned counsel, are a pointer towards the principle that
justice must prevail. It is contended that a believer is not supposed to show concession or facility in the
punishment either on account of the social status or superior standard or the living style of the convict.
Consequently it was argued that classification of prisoners into class "A", "B" and "C" on the basis of
social or economic status, profession, academic qualification was against the basic concept of justice
and fair play and hence contrary to the Injunctions of Islam.

66. It is not possible to agree with the interpretation put forward by learned counsel. On his own
showing, the opulent and educated persons on conviction get "A" or "B" class which means that as far as
award of punishments by the courts in Pakistan is concerned there is no difference between the wealthy
and the poor or the well-read or uneducated. The only objection is relatable to the possible facilities
available during the period of incarceration awarded as a result of the conclusion of trial. No Injunction
of Islam was relied upon by learned counsel to show that the facilities admissible to the prison
population belonging to different classes of society under the Prison Rules must be uniform in all
circumstances. It is well nigh impossible to treat all the categories of prisoners alike. Children, women,
suspects, political detenues, hardened criminals, repeaters, condemned prisoners, ailing persons,
prisoners who are assigned the duty of teaching or cooking and serving in different capacities in the
prison houses and persons belonging to terrorist groups or an enemy country or these prisoners who
are foreign agents have to be treated and accommodated separately with different standards of
surveillance. These are practical difficulties and cannot be ignored under any circumstances.

67. The question of the imprisonment of Syedna Yousaf, as narrated in Holy Qur'an, had also crept in
during arguments. From the story of Syedna Yousaf, as reported in Holy Qur'an, the element of
imprisonment in a prison house under the then prevailing Code was an alternate mode of punishment.
Ayat 25 of Sura 12 of Holy Qur'an states that the complaining lady demanded imprisonment or grievous
chastisement as the mode of administering justice. It means that the erstwhile customary law permitted
detention in prison as an alternative to the corporal punishment. The prison cell could also be as a place
of sojourn for the prisoners awaiting judicial pronouncement of some other category of punishment.
The story of Syedna Yousaf A.S. in relation to imprisonment is a clear pointer to the erstwhile customary
code wherein the man in authority had the discretion to award lesser punishment by way of

1491
imprisonment for a fixed period instead of imposing a painful chastisement upon the accused. The
narrative also establishes that communication between prisoners was not prohibited. Notwithstanding
his imprisonment Syedna Yousaf A.S. enjoyed certain privileges. He would respond to the incisive
questions of the inmates and preach Tawheed. He would also interpret their dreams. The Ayaat relating
to the imprisonment of Syedna Yousaf A.S. do not suggest, detailed provision for a Jail Manual which can
be instantly enforced. We can seek guidance after pondering over that part of the story which deals
exclusively with prisons and prisoners.

68. The contention worth advancing at the bar, under the circumstances, should be for providing
opportunities for better educational and medical facilities to the less fortunate prisoners, subject of
course to the availability of resources. The proper forum however, for agitating all these demands would
of course be the political front from where legislation through Assemblies can be initiated.

69. However, it is worth mentioning that the award of quantum of punishment under Taazir depends
purely upon the discretion of judges and our judges do not exercise judicial discretion arbitrarily. This is
an accepted position in the administration of justice. It was also not urged before us by learned counsel
for petitioners that it amounted to discrimination that varying quantum of sentences were awarded to
different accused or different categories the punishment i.e. simple or rigorous imprisonment or
imprisonment of either description, or with or without fine, or a direction to pay compensation to the
aggrieved person from the fine realized from the accused or additional term of imprisonment in case of
non payment of fine was imposed to different convicts. This division in the award of penalties to
different accused persons facing trials under the same charge, appears to have been accepted and has
not be challenged by the petitioners as an instance of Discrimination. It has not been considered
discriminatory. Notwithstanding the discussion on the issue of classification it might as well be stated
that every case depends upon the peculiar facts of that particular cause. However the basic principle of
Islamic jurisprudence is that reasonable Classification is permissible but Discrimination has to be
eschewed because discrimination violates the well known tradition of Holy Prophet (p.b.u.h.)
proclaimed in the Khutba Hujjat-ul-Wida.

70. The primary concern of Islamic jurisprudence is the administration of even-handed justice. The
prevailing prison system, regretfully, does not envision rectification, reform, reformation, or
rehabilitation of the convict. This deficiency is a matter of fundamental importance for the managers of
prison system because the prison population till date has not received considerate attention. The
prisons are of course necessary to save the society from the wrong doings of nasty persons. There are
other considerations as well for maintaining prison system but that does not mean that human beings
should not be saved. A prisoner should not be left alone to ruin himself nor should he be abandoned as

1492
a total wreck. He has to be rescued and supported at emotional level. The message of hope, as given in
Ayat 53 Sura 39, has to be inculcated in him. The Ayat proclaims:-

"Say: O My servants!

Those of you who have

Acted extravagantly

Against their own souls

(against themselves), do not

Despair of the Mercy of Allah:

Surely Allah forgives the

Faults altogether: Surely

He is forgiving, The Merciful.

The mercy and love of Allah finds its true expression in this Divine Declaration. The world community
had become conscious some time back of the deficiencies and the inherent and vital defects in their
prison disciplines but they hard to adopt an objective attitude. The system was brought under
sympathetic scrutiny with the result that the conditions of prisons, the world over, are registering an
improvement due to the efforts of human friendly associations. The dungeons of old times are now
being replaced by correctional and rehabilitation centres.

71. The classification and categorization of prisoners on the basis of age, sex, nature of accusation, past
conduct, social and educational status, preventive or political detention, casual and habitual offenders,
convicted and under-trials prisoners, civil and criminal detenues, and further division into "A", "B" and
"C" category is not as simple as originally perceived by the petitioners. The number of "A" and "B"
category of prisoners at present in our prisons would show that classification is hardly a problem in the
prison system. Problem lies elsewhere. It is the other section of prison discipline which needs basic
amendments. The Prison Manual had a rational basis then when the prison discipline was visualized by
foreign masters on the strength of their own experience in British Jails. A change in the prison discipline
as well as in our outlook, in view of changed situation after 15 August 1947, is certainly the dire need of

1493
the time. It must be realized that unless a ' new system based upon egalitarian concept is introduced,
not much can be achieved.

72. It has been reported that Jarir-bil-Abdullah was treated with special respect when he first appeared
before the Holy Prophet (p.b.u.h.). On inquiry as to the reason why special courtesy was shown to him,
the Holy Prophet (p.b.u.h.) remarked that when a, respectable person from any tribe comes to you, pay
him due respect and honour him. (Reported in Sunan Abi Daud and Sunan Ibn-e-Maja).

73. In another tradition reported in Kitab-ul-Kuna-Aldaulabi that Abdur Rehman along with one
hundred persons went to see the Holy Prophet (p.b.u.h.) who, in order to honour the leader of the
delegation laid down his wrap for him to sit upon. On being asked later about this singular good-will
gesture he replied that the leader was a respectable representative of his tribe. Whenever any
respectable persons' of any tribe comes to you give him respect and honour, it was again stated by the
Holy Prophet (p.b.u.h.).

74. Another tradition is reported from Hazrat Ayesha (R.A) that the Holy Prophet (p.b.u.h.) summoned
Saad bin Maaz in connection with the decision of a case pertaining to the Jews of Madina. On his arrival
the Holy Prophet (p.b.u.h.) asked the Ansaar to stand up as a mark of respect for Saad bin Maaz. He is
reported to have remarked that due respect should be paid to the head of the tribe. This tradition is
reported as Sunan Abi Daud as Tradition No.5215-5216.

75. There is yet another tradition of Holy Prophet (p.b.u.h.) reported in Sunan Abi Daud as tradition
No.4842 which says that the people should be treated in accordance with their social status.

76. These traditions do not militate against the principle of equality because everybody is worthy of
respect. These traditions only go to show that extra respect has to be shown to certain categories of
persons. For example every man and woman is worthy of respect but the parents enjoy additional
advantage over every other man and woman of the world. Extra respect for the parents or for the elders
of the family or for the teacher does not mean that the principle of equity has been sacrified.

77. At the end it may be stated that the position of better class prisoners in 32 prisons of the Punjab, as

1494
on 31.12.2008, was as follows:--

Total number of Prisoners: 59965

A class Male under-trial prisoners 3
B class Male under-trial prisoners 62
B class Female under-trial prisoners 1
B class Male convicts 61
B class condemned prisoners 123

It means that out of 59965 prisoners only 250 prisoners are better class prisoners at present.

78. At the risk of repetition it may be stated that Rules 151 and 152 Chapter 7 classify prisoners into at
least 12 classes namely those under sentence of death, long term prisoners, juvenile and women
prisoners, prisoners detained under the Reformatory Schools Act, 1897 and the Borstal or Children Act,
Court Martial prisoners, prisoners whose transfer is necessary to relive over crowding, prisoners
with special qualifications whose services are required elsewhere, influential, violent or dangerous
prisoners, prisoners whose transfer is necessary in the interest of their health and prisoners whose
transfer is necessary or desirable for any other reason, e.g. insecurity of the prison, character of the
prisoner, or his having friends or relatives among the staff. This is the recognized classification from the
view point of transfer. This is over and above the classification of prisoners contemplated in Chapter 9 of
the Prison Rules. The petitioner has apparently accepted all categories of classification of prisoners
whether stated in Chapter 7 or Chapter 9 of the Prison Rules or otherwise. He has not opted to
challenge classification contained in these chapters. This is not understandable. It is not permissible to
blow hot and cold in the same breath in the field of law.

79. In view of preceding discussion on the question of classification Shariat Petition No.62/I of 1992,
Shariat Miscellaneous Application No.19/I of 1997 and Shariat Miscellaneous Application No.11/I of
1998 are hereby dismissed.

SEGMENT THREE

LETTERS AND INTERVIEWS

1495
 (ISSUE NO.IX)

80. Shariat Miscellaneous Application 16/I of 1997 seeks to challenge Rule 546 of the Pakistan Prison
Rules. It forms part of Chapter 22 entitled Letters and Interviews. It envisages facilities to be provided to
new entrants in the prison including provisions for reading, writing and meeting friends and relatives. It
also mentions the number of things that a prisoner can validly receive at the time of interviews.

81. Rule 546 of the Pakistan Prison Rules deals with censorship of fetters delivered to or sent by
prisoner. The rule is being reproduced as under:---

Censorship of letters

Rule 546---No letter shall be delivered to or sent by a prisoner until it has been examined by the
Superintendent or an officer authorized by the Superintendent in this behalf, but no unnecessary delay
shall be allowed to occur in its delivery or dispatch. If a letter is written in a language unknown to the
examining officer, he shall take steps to get it translated before forwarding it. No letter written in cipher
shall be allowed to be sent or received. The Superintendent may withhold any letter which seems to him
to be in any way improper or objectionable. The subject matter of letters shall be restricted to private
and domestic affairs only. Suspicious looking letters may be exposed to heat or treated in any other
suitable manner as a safeguard against unauthorized message written in invisible ink being smuggled in
or out of prison.

This rule has been objected to in Shariat Miscellaneous Application No.16/I of 1997 by convict Master
Ijaz Hussain. The grounds of attack are as follows:---

A. That under Article 19 of the Constitution every citizen is free to write or express himself.

B. That the N.-W.F.P. Government has already permitted the prisoners in their province to retain pen
and paper with them in the cell.

1496
C. That due to censorship restriction, the prisoners are precluded from informing the higher authorities
about the excesses of prison administration. A constitutional petition registered as Writ Petition
No.4719 of 1995 is stated to be pending -disposal in the Lahore High Court on this very issue.

82. It will be appreciated that no reference to any Injunction of ls!am has been made. The fact that N.-
W.F.P. Government has allowed prisoners to retain pen and paper in the cell is not relevant to Rule 546.
Article 19 of the Constitution no doubt guarantees freedom of speech etc. but it is subject to "any
reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or
defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, (commission of) or incitement to an offence". The
existence of this Rule regarding compulsory censorship is a definite check against many problems
relating to internal security, jail-breaks and other disciplinary matters. As regards the opportunity of
sending complaints against prison administration to higher authorities, without being intercepted or
censored by prison officials, the prisoners can always put it across when ,a judicial officer visits the Jail in
routine once in a month. It is worth while mentioning the incident of Hatib Ibn Abi Balta, who had
entrusted a secret letter about the activities of Muslims in the nascent state of Madina, to an old
woman for being conveyed safely to the enemies of Islam in Macca. This letter was placed in the tresses
of the elderly women. The Holy Prophet (p.b.u.h.) sent Zubair and Miqdad (R.A) to catch that woman at
Rauza Kakh. The needful was done and the letter was recovered. Investigation was initiated after
recovery of the offensive letter. This incident shows that for the purpose of security the Administration
can take steps like checking and censorship. Such a course of action is permissible in Islam.

83. The petitioner had also stated in his petition that a constitutional petition registered as Writ Petition
No.4719 of 1995 was pending adjudication before Lahore High Court under its extra-ordinary
constitutional jurisdiction. In view of these two reasons namely i) the constitutional allowance to impose
reasonable restriction on the right of expression and ii) the pendency of a constitutional petition in the
Lahore High Court, Lahore and also due to the reason that no particular Injunction of Islam was shown
by the petitioner to have been violated by Rule 546 of the Prison Rules the Shariat Miscellaneous
Application No 1611 of 1997 is without force and consequently merits dismissal.

SEGMENT FOUR

DISCIPLINE AND DAILY ROUTINE.

1497
 (ISSUE NO.IX)

84. Rule 690 of Pakistan Prison Rules has also been challenged in Shariat Miscellaneous Application
No.16/I of 1997. This rule is part of Chapter 28 entitled Discipline and Daily Routine. The rule is as
follows:-

"List of Prohibited Articles.

Rule 690.---The articles specified or included in any of the descriptions contained in the list annexed to
this Rule, shall be deemed to be prohibited articles, within the meaning of Section 42 and clause (12) of
Section 45 of the Prisons Act, 1894, unless any such articles shall be---

(a) introduced into any prison.

(b) removed from any prison.

(c) supplied to any prisoner outside the limits of any prison or

(d) received processed or transferred by any prisoner, with the permission of the
Superintendent or other officer empowered by him in this behalf.

List of Prohibited Articles.--

(1) Spirituous liquors of every description.

1498
 (2) All explosives, intoxicating or poisonous substances and chemicals, whether fluid or solid of
whatever description.

(3) All arms and weapons and articles which are capable of being used as weapons of whatever
description.

(4) All bullion, metal, coin, jewellery, ornaments, currency notes, securities and articles of value
of every description.

(5) All books, papers, and printed or written matters and materials and appliances for printing or
writing of whatever description.

(6) String, ropes, chains, bamboos and all materials which are capable of being 6converted into
string or rope or chain, any article to facilitate escape, or implement of any kind; and

(7) Wood, bricks, stones and earth of every description.

For Sindh Province Only

In Rule 690, in the entries against item 5, after the words "and materials" the words "specifically
prohibited by the Provincial Government", shall be inserted.

The rule under scrutiny enumerates various prohibited articles "within the meaning of section
42 and clause (12) of section 45 of the Prisons Act, 1894".

1499
85. According to item No.5 in the List of Prohibited Articles, all books, papers and printed or written
matters and materials and appliances for printing or writing of whatever description are prohibited. The
words "all books, papers and printed or written matters" occurring in the first part of item No.5 are
obviously repugnant to the Injunctions of Islam. The following Injunctions, to quote just a few, can be
cited in support of the contention that prohibition on reading and writing material is palpably ultra vires
of the Islamic Injunction.

A. Ayat 269 Sura 2, (Al-Baqra) of Holy Qur'an declares:---

He grants wisdom to those

Whom He wills; and whoever

Is granted wisdom has

Indeed been granted much

Good. Yet none take heed.

B. Ayat 1-5 Sura 96, Sura Alaq, of Holy proclaims:---

Read (recite) in the name of

Your Lord Who created,

Created human being from a clot,

Recite: and your Lord is Most Generous,

Who taught by the pen

Taught human being what he did not know.

1500
C. Ayat 1, Sura 68, Sura Al-Qalm (The Pen) of Holy Qur'an declares:---

Nun: by the pen and

What the scribe writes.

D. Repeated references in the Holy Qur'an to the application of intellectual faculties is indicative of the
importance of reading and writing (Pen and Book) in Islamic teaching. It is worth considering that the
Holy Qur'an describes itself as a Book. The previous revelations were also described as Books. The
believers are therefore, under religious obligation to acquire the facility and methodology to read and
write otherwise they will not be able to understand and appreciate the Message contained in these
Books. At numerous places the Holy Book exhorts the believers to think, ponder, question and assimilate
knowledge. Reference Ayat 73, 76 and 171 and 242 of Sura 2.

E. Ayat 43 Sura 16, Sura Al-Nahl may also be seen. So ask those who possess. Knowledge if you do not
know.

A reference to the following traditions of the Holy Prophet (p.b.u.h.) would be useful.

F. "To acquire knowledge, go as far as China". This tradition exhorts the believers to cover long distances
in the pursuit of knowledge. And we know that the Muslim Jurists and traditionists had undertaken
arduous and extensive journeys in different lands with the object of collecting and compiling volumes on
traditions and other disciplines of jurisprudence. Such an exercise is not possible without writing
material.

G. Tirmazi, in the Book of knowledge (Tradition No.2687), records a saying to the effect: "Wisdom is the
lost heritage of believers: He (i.e., the believer) is entitled to its acquisition wherever he finds it." The
distinction of modern era is that knowledge of varied disciplines is not only being recorded but is being
made readily available to students. Right to know is now a fundamental right.

1501
H. The Angels, it is also reported in a tradition, spread their nimble wings beneath the footsteps of
scholars who traverse unkind and hazardous distances in search of knowledge.

I. Tradition No.1919, appearing in Kitabul Amara, in the Sahih Muslim records: One, who acquired the
knowledge/technique of using an arrow and then forgot it, is not one of us.

J. Seeking knowledge is obligatory for every Muslim male and female: These traditions have been
referred to in earlier part of this judgment.

K. Another reason that has weighed with us is that according to Islamic teachings the Divine revelation is
purpose-oriented. Muslim Jurists have recognized a few Objectives of Shariah, known as Maqaside-
Shariah. These objectives are in fact guarantees for the betterment of humanity. The five basic principles
or the five values/five Maqasid-e-Shariah are as follows:--

(i) Preservation of Deen (Religion)

(ii) Preservation of Intellect

(iii) Preservation of Life

(iv) Preservation of Property and

(v) Preservation of Progeny

1502
The second value i.e., preservation of Intellect (Tahafaz-e-Aql) is not possible without education for
which reading and writing is the minimum requirement. Consequently any prohibition on reading and
writing material would be tantamount to the basic philosophy of Islam. It is a Deen wherein the first
word of the first revelation is IQRA i.e., READ. Denial of reading and writing could be a denial of a
fundamental injunction of Islam:

"Thus does Allah make

His commandments manifest

and clear for you that you

may reflect"

Ayat 220 Sura 2 (Al-Baqra)

86. During the course of writing this Judgment we got in touch with Inspector General of Prisons NWFP
on the issue of disallowing books, pen and paper for the use of prisoners. He sent us a copy of the
Official Gazette of the North-Western Frontier Province dated 4 t h September, 2004, No.4/44-SO
(Prisons)HD/2004 whereby amendments in the Prison Rules were effected so as to include Pen/Pencil as
item No.32; Books/Papers as item No.33, reasonable number/quantity; but item No.5 of rule 690 has so
far not been repealed. Rule 75 in Chapter 4 however permits reading material and pen to the prisoners.
In so far as Balochistan and N.-W.F.P. Provinces are concerned the needful has been done but
amendment entitling the prisoners to a reasonable quantity of reading and writing material has not
been incorporated in Rule 75. This omission is not only violative of Islamic Injunctions relating to
acquisition of knowledge at every stage, place, time and age of human life but it is also contrary to the
principle of uniformity of laws applicable to same categories of citizens all over the country. It may
however be added ' that Article 37 of the Constitution obliges the Government to "promote, with special
care, the educational and economic interest of backward class or areas." It also provides that illiteracy
should be removed and "free and compulsory secondary education within minimum possible time" be
provided. It is hoped that the other provinces will follow suit. However in so far as Rule 690 is concerned
we declare the first part of item (5) i.e. the words " All books, papers and printed or written matters and
materials and" as violative of Injunctions of, Islam. These words shall cease to have effect from first day
of December, 2009. Shariat Miscellaneous Application No.16/I of 1997 has borne fruit.

SEGMENT FIVE

1503
 WOMEN PRISONERS AND INNOCENT CHILDREN

(ISSUE NO.II")

87. Shariat Petition No.61/I of 1992 and Shariat Miscellaneous Application No.10/I of 1998 seek to
challenge Rules 307 and 314 of the Pakistan Prison Rules, 1978. These rules find mention in Chapter 13
entitled Women Prisoners and Innocent Children. The text of both the rules is as follows:---

Rule 307.--- (i) Women prisoners with sentences of less than two months shall be confined in the prisons
to which they are committed.

(ii) When the number of women prisoners confined in any prison is in excess of the available
accommodation, the excess number shall ordinarily, irrespective of the length of sentences, be
transferred to the Women's Prison.

Conditions under which male officers may enter women's enclosure

Rule 314.--- A male officer of the prison may enter the women's ward by day only if he has a legitimate
duty to attend to, and is accompanied by the woman warder all the time he remains inside such ward or
enclosure. Should it be necessary to enter the women's ward at night, the head warder on duty shall call
the Deputy Superintendent, and the women warder and these three officers shall enter together.
Warders acting as escorts to visitors or officials shall remain outside the enclosure.

88. Learned counsel during the course of arguments relied upon Ayat 151 Sura 6, Sura Al-Anaam of the
Holy Qur'an.. Translation of the Ayat reads as under:-

"Say: "Come, I will rehearse

1504
 What God hath (really)

Prohibited you from" : join not

Anything as equal with Him;

Be good to your parents;

Kill not your children

On a plea of want; -

We Provide sustenance for you

And for them; - come not

Nigh to shameful deeds,

Whether open or secret;

Take not life, which God

Hath made sacred, except

By way of justice and law:

Thus doth He command you,

That ye may learn wisdom." (Emphasis Added)

89. This verse certainly contains five commandments including a moral edict which prohibits all
categories of lewdness and all unseemly acts whether open or secret. There is nothing at all either in
rules 307 or 314 which violates injunction contained in Ayat 151 quoted above. On the contrary Rule
314 specifically mandates that a male officer can enter only if he has a legitimate duty to attend to, and
is accompanied b the Woman Warder all the time he remains inside such ward or enclosure. Such a
situation is not conceivably covered by the mischief of the term Fawahish i.e. Lewdness.

90. Care has been taken under the Rules to separate different categories of women prisoners as
provided in Rules 308 and 309 which in itself is a healthy provision. Rule 310 provides that where there

1505
is only one woman prisoner in the prison, arrangement shall be made for a women warder to remain
with her both by day and night. Similarly Rule 311 totally forbids a woman prisoner leaving or being
removed from the women enclosure except on a/ transfer, or b/ her attendance in Court or c/ release
from prison or d/ under special order of the Superintendent for any lawful reason.

91. In this connection, it may be pointed out that precautionary measure have already been adopted by
introducing sub-sections 5,6, and 7 in section 167 of the Code of Criminal Procedure vide Act XX of 1994
(See PLD 1995 Central Statute part page 231).These provisions which took effect from 15 November,
1994 are being reproduced as under:---

"(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary,

where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except
in the cases involving Qatal or dacoity supported by reasons to be recorded in writing, authorize
the detention of the accused in police custody, and the police officer making an investigation
shall interrogate the accused referred to in subsection (1) in the prison in the presence of an
officer of jail and a female police officer.

(6) The officer incharge of the prison shall make appropriate arrangements for the admission of
the investigating police officer into the prison for the purpose of interrogating the accused.

(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection
(1) be taken out of the prison, the officer incharge of the police station or the police officer
making investigation not below the rank of Sub-Inspector, shall apply to the Magistrate in that
behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of
accused out of the prison in the company of a female police officer appointed by the Magistrate:

Provided that the accused shall not be kept out of the prison while in the custody of the police
between sunset and sunrise."

At the most the Government may consider defining the scope of the word "necessary" occurring in Rule
314 of the Prison Rules. The Government may restrict the nocturnal visits only to situation when a

1506
prisoner needs emergent medical care, or there are riotous conditions in the barrack, a calamity like fire
or an earthquake has damaged the enclosure. Every such visit of senior officers may by law be required
to be recorded and its intimation sent to the Inspector General Prisons next morning telephonically as
well as in writing.

92. No other argument was advanced before us to show that these two provisions violate any Injunction
of Islam. Consequently Shariat Petition No.61/I of 1992 and Shariat Miscellaneous Application No.10/I of
1998 to the extent of these two rules, are hereby dismissed.

SEGMENT SIX

THE SUPERINTENDENT OF JAIL

(ISSUE NO.IX )

93. Shariat Petition No.61/I of 1992 seeks to challenge rules 935, 939 of the Pakistan Prisons Rules, 1978
as well. These rules form part of Chapter 39. The text of both the rules is reproduced as under:---

Appointment of Superintendent

Rule 935--- Superintendent of Prisons shall be appointed by Government and shall hold their office
either alone or in conjunction with any other duties at the discretion of Government.

Duties of the Superintendent in general

Rule 939.---(i) The over all responsibility for the security and management of the jail shall squarely
revolve on the Superintendent.

1507
 (ii) Subject to the orders of the Inspector General, the Superintendent shall manage the prison in
all matters relating to discipline, labour, expenditure, punishment and control.

(iii) Subject to such general or special directions as may be given by the Government, the
Superintendent of .a prison other than a Central Prison shall comply with all orders not
inconsistent with the Prisons Act, 1894 or any rule thereunder which may be given respecting
the prison by the [District Coordination Officer], and shall report to the Inspector General all
such orders and the action taken thereon.

(iv) Under section 12 of the Prison Act, 1894, the Superintendent is required to keep or cause to
be kept, certain specified records and such other records as may be prescribed under Section 59
of the said Act.

For Sindh Province only

In Rule 939.--- existing sub-rules (i), and (ii) shall be renumbered as sub-rule (ii), (iii) and (iv) of the said
rule and before the said sub-rules the following new sub-rule shall be inserted as sub-rule (i), namely:---

"(i) The over-all responsibility for the security and management of the jail shall squarely devolve
on the Superintendent."

94. Learned counsel for the applicant neither advanced any precise objection as to the text or
terminology of these two rules nor was any Injunction of Islam shown to have been violated by the
inclusion of these two provisions in the Rules. In this view of the matter Shariat Petition. No.61/I of
1992, in so far as its challenge relates to rules 935 and 939, is hereby dismissed.

SEGMENT SEVEN

LADY ASSISTANT SUPERINTENDENT AND

1508
 WOMEN WARDERS

(ISSUE NO.II & IX)

95. Shariat Petition No.61/I of 1992 seeks to challenge legality of rules 1180, 1181 of the Pakistan Prison
Rules 1978. These rules are contained in Chapter 46 entitled Lady Assistant Superintendent and Women
Warders. The following two grounds were mentioned in support of the contention that both these rules
are violative of the Islamic Injunctions:--

(a) that no woman can be placed in custody of a male not within prohibited degree (Non-
Mahram)

(b) that any situation, arrangement, event or system which may possibly lead to immorality or
adultery is prohibited by Islam.

The text of both the rules is reproduced below:--

Rule 1180.--- (i) In the women's prison there shall be a Lady Assistant Superintendent who shall subject
to the control of the Superintendent of the local men's prison, have complete charge of all women
prisoners at any time committed to, or detained, in the prison.

(ii) All rules, regulations, etc., applicable to Assistant Superintendents as regards appointment,
conditions of service and duties, shall mutatis mutandis be applicable to Lady Assistant Superintendent.

(iii) The Lady Assistant Superintendent shall be assisted by a staff of women Warders who shall perform
duties as laid down in the succeeding rules, subject to the control of the Lady Assistant Superintendent.

1509
Women Warders duties

Rule 1181.--- (i) In every other prison where women prisoners' are confined, a woman Warder shall be
incharge of the women enclosure. She shall work under the supervision and orders of the Deputy
Superintendent and the Superintendent.

(ii) The duties of the woman Warders, shall, as regards women prisoner, be similar to those performed,
as regards male prisoners, by Warders and Head Warders. All rules, regulations, orders and directions
for the time being applicable to such Warders and Head Warders, shall be applicable to women
Warders.

96. During the course of arguments there was only a general reference to these rules without of course
mentioning any particular injunction of Islam which was claimed to have been violated by' these two
rules.

97. On the contrary we find that a lady Assistant Superintendent has been made physical incharge of a
women's prison. The rule also affirms that Woman Warder shall be incharge of the women enclosure in
any prison. The women enclosures are already separate from the male enclosure and therefore there
does not exist any "situation, arrangement, event or system which is directed towards or may possibly
lead to immorality or adultery".

98. The other objection raised was that the Lady Assistant Superintendent should not be under the
control of the Superintendent of local men's prison. It was also asserted that the female Warders should
not be under the control of Superintendent or Deputy Superintendent of Prisons.

99. The objection could have been valid if all the female prisoners would have been under the control of
male Superintendent/Deputy Superintendent. Rule 1180 visualizes a Lady Assistant Superintendent
incharge of the female prisoners and Rule 1181 contemplates a woman warder as incharge of the
women enclosure.

1510
100. In so far as the chain of command in the prison department or for that matter any other wing of
Government administration is concerned, the presence of a female at any given step does not create
any trouble. There is a well defined hierarchy from bottom to top which is known as chain of commands.
This chain includes both men and women.

101. The only objection expressed at the Bar was that this provision can be misused and may lead to
immorality. This objection is not valid for the simple reason that the provision itself is not being
challenged but apprehensions are being expressed, that the impugned provision might as well be
misused. This line of argument would exclude innumerable things from human activity which are
otherwise valid. For fear of printing seditious matter you cannot stop the functioning of printing press or
the apprehension that phony medicines may be manufactured by unscrupulous elements no
Government will ban medicine preparations. However, in the case of Pakistan and others v. Public At
Large and others reported as PLD 1987 SC 304 at page 355 it .was held that "Only because a provision
can be used in an oppressive or capricious manner or is capable of being misused does not mean that
the provision itself becomes invalid. The sole criteria are the test of repugnancy to Holy Qur'an or
Sunnah of the Holy Prophet (p.b.u.h.).

102. No Ayat of Holy Qur'an or Sunnah has been shown to be violated if a female officer is placed at a
particular step in the chain of command. Consequently the Shariat Petition No.61/I of 1992 being
without force is dismissed.

SEGMENT EIGHT

DEPUTY SUPERINTENDENT

(ISSUE NO.IX)

103. Shariat Petition No.61/I of 1992 seeks to impugn rules 1002 and 1004 of the Pakistan Prisons Rules,
1978. These rules are part of Chapter 41 entitled Deputy Superintendents. Rules 1002 and 1004 are
being reproduced below:-

Persons included in the word "Deputy Superintendent"

1511
Rule 1002.---For the purposes of duty, the expression "Deputy Superintendent" shall be deemed to
include Assistant Superintendent and every person for the time being performing all or any of the
functions or duties of a Deputy Superintendent.

General Duties

Rule 1004.--- (i) The Deputy Superintendent shall be the chief executive officer of the prison and shall
discharge his duties under the immediate directions and orders of the Superintendent. It shall be his
duty to see that all orders issued by the Superintendent are duly carried out.

(ii) It shall be the duty of the Deputy Superintendent to maintain discipline both amongst subordinate
officers and the prisoners and the strict enforcement of all rules, regulations and orders relating to the
management of the prison, prisoners, and the staff.

104. The learned counsel for the petitioner has challenged the above provisions on the grounds
mentioned in paragraph 3,4 and 5, of the Shariat Petition. These grounds are in fact apprehensions e.g.
that the control of male staff over female prisoner can lead to moral excesses. The fact of the matter is
that no male officer is in physical control of female prisoners. The latter are under the supervision of
female warders and Lady Assistant Superintendent of Jail. The other ground is that according to Islamic
Injunction "no women can be placed in custody of non-Mahram male" As prescribed in rules no female
prisoner is placed in custody of non-Mehram male staff. The third objection, that any thing leading
towards immorality is prohibited in Islam, is a misplaced feeling.

105. The two rules i.e. 1002, 1004 impugned in this Shariat Petition, are therefore, valid as no reason,
was advanced to show that the said provisions were repugnant to any one or more Injunction of Islam.
These provisions relate to the performance of normal duties. It will certainly not advance the cause of
justice if an effort is made to read a mischievous meaning in any provision of law unless of course it is
shown by reasonable interpretation that the provision under review is either expressly hit by an
Injunction of Islam or by implication is repugnant to the letter or spirit of Injunctions of Islam. The
Injunction of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would
indicate the obvious mischief complained of. As a consequence thereof the portion of Shariat Petition

1512
61/I of 1992, in so far as challenge to Rules 1002, 1004 is concerned is hereby dismissed.

SEGMENT NINE

EMPLOYMENT RESTRICTION

(ISSUE NO.IX)

106. Shariat Petition No.12/I of 1999 seeks to challenge Rule 1078 of the Jail Manual. This rule occurs in
Chapter 44 entitled "General Rules Relating to Prison Officers". This rule prohibits employment of
persons dismissed from Government Service without the special sanction of the Government. This rule,
according to the petitioner, is un-Islamic as it prohibits a person from earning legitimate livelihood (Rizq-
e-Halal). The petitioner however proposes that convicted persons be allowed employment in the
Government service on merit. The petitioner relied upon Verse 70 of Chapter 25 of the Holy Qur'an in
support of the point raised by him. Rule 1078 reads as under:--

Prohibition against employment of persons dismissed or, punished criminally.

Rule 1078--.- (i) Persons who have any time been dismissed from Government Service shall not be
employed in the Prison Department without the special sanction of Government. The Government shall
be given a full statement of the facts relating to such dismissal.

(ii) Persons who have any time been convicted of any offence against the Criminal Law and punished
with imprisonment or with whipping shall not be employed in the Prison Department without the
special sanction of the Inspector General.

(iii) Only persons of good conduct and respectable character shall be employed as prison officers.

107. An objection was raised by Master Ijaz Hussain in his application that Rule 1078 was violative of the

1513
Injunctions of Islam in as much as it prohibits a person from earning honest living. It was further
asserted that a convicted person should have an equal right of employment. Reliance in this connection
was placed on Ayat 70 Sura 25, (Al-Furqan). The Ayat states that Allah will change the evil deeds into
good deeds of those who repent because Allah is Forgiving and Most Compassionate.

108. However during course of argument no one canvassed this proposition before us. It is worth
mentioning that it is not the fundamental right of every person to obtain a Government job. Prisons, as a
segment of the administrative 'machinery of the State, cannot 'be equated with any other department
or institution under the control of Government. Every department has specialized functions to perform.
The appointing authority has an inherent right to acquire or requisition services of skilled persons
according to the need or the standard determined by that department. The matter of eligibility of an
employee can best be settled by the department concerned. Recruits cannot be thrust upon the prison
departments. Moreover there is no law to prohibit a previous convict from pursuing lawful economic
enterprise in his private capacity. No Injunction of Islam has been referred ' to by petitioner to establish
that the impugned rule is in any manner opposed to Islamic Injunctions. However we observe that this
rule does give arbitrary authority to Government as well as the Inspector General of Prisons to employ
dismissed government officers and previous convicts. This is a discriminatory provision and is not
covered by the principle of classification on reasonable grounds. In this view of the matter the elements
of special sanction of Government and special sanction of Inspector General of Prison are hereby
declared violative of Injunctions of Islam on account of arbitrariness and other reasons as discussed in
detail in Segment Two of this judgment. The impugned provision to the extent of special sanction shall
cease to have effect as from 01.12.2009. Consequently rule 1078(i) is declared repugnant to Injunctions
of Islam to the extent indicated above. Resultantly Shariat Petition No.12/I of 1999 is partly accepted.

SEGMENT TEN

STATUTORY RELIEF

(ISSUES' NOS. VII, VIII)

This segment is the subject matter of Shariat Miscellaneous Application No.21/I of 1995 which seeks
amendment in section 382-B of the Code of Criminal Procedure. The Code of Criminal Procedure
(Second Amendment) Ordinance, 71 of 1979 had substituted the word "may" with "shall" in section 382-
B of the Code. The section as amended, at present, reads as follows:-

1514
 "Where a court decides to pass a sentence of imprisonment of an accused for an offence it shall
take into consideration the period, if any, during which such accused was detained in custody
for such offence."

The objection of the petitioner is that the period of detention in custody for the offence should be
deducted from the quantum of sentence of imprisonment awarded at the end of the trial for the same
offence. Let us examine it in the light of relevant verses of Holy Qur'an. The following principles can be
inferred from the Injunctions of Islam relating to the realm of administration of justice.

a. All human beings are equal before law and even handed justice has to be administered to the affected
parties and no one should be punished beyond the period stipulated in law.

(i) Ayat 48, 123, 286 Sura 2:

(ii) Ayat 135, Sura 4

(iii) Ayat 8, Sura 5

(iv) Ayat 15, Sura 10

b. Temper Justice with Equity (Soften Adl with Ehsan). Ayat 90 ' of Sura 16 of Holy Qur'an

c. The recompense of an injury is an equal injury but forgiveness in Divine. Allah loves the
compassionate. Ayat 41 of Sura 42.

110. In this view of the matter it appears to be just and reasonable that the period spent by a prisoner in
detention/custody for an offence before and during the trial ought to be deducted from the sentence
awarded by the trial court for the reason that the prisoner has already suffered incarceration on account
of the crime report which becomes the basis of his conviction and the consequent sentence of
imprisonment. The omission to deduct such a period of detention in the same cause would fall in the
category of Zulm which the Holy Qur'an does not countenance under any situation: Refer Ayat 85 Sura

1515
3. The existing provision i.e. section 382-B of the Code of Criminal Procedure in so far as it speaks of
taking into consideration the period spent in detention for the same offence, before pronouncement of
judgment is declared derogatory to the Injunction of Islam. Necessary correction may be made by 1-12-
2009 whereafter the order of this court will take effect and the provision of section 382-B of the Code of
Criminal Procedure would read as follows:--

"Where a court decides to pass a sentence of imprisonment of an accused for an offence, the
period, if any, during which such accused was detained in custody for such offence, whether
before or after submission of report under section 173 of the Code of Criminal Procedure or
initiation of a trial in a case instituted upon a complaint, shall be deducted from the quantum of
sentence of imprisonment awarded by the trial court or it may be adjusted against imposition of
fine if the court so directs.

111. Consequently Shariat Miscellaneous Application No.21/I of 1995 succeeds partly. We took notice of
this provision also because this point invariably crops up whenever the question of benefit of section
382-B of the Code of Criminal Procedure comes under consideration at the time of award of sentence to
the accused both at the conclusion of the trial and at the time of hearing the appeal. It is hoped that this
declaration will put an end to the controversy.

SEGMENT ELEVEN

DIETARY REQUIREMENTS

(SUO MOTU-ISSUE NO.IX)

Feed the Hungary,

Visit the Sick,

And free the prisoner

If he be unjustly bound

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 (HADEES)

112. Chapter 20 of the Pakistan Prison Rules deals with the Dietary requirements of the prison
population. We have taken Suo motu notice of an extremely hard situation which relates with the basic
human necessity i.e. daily diet prescribed in the rules. This problem is being faced by almost every
prisoner since the time prison discipline was applied upon the prison population. Our main concern is
that according to the Islamic teachings, the Captor is under an obligation to make adequate provision for
persons who are under his charge. Ayat 8 of Sura 76 of Holy Qur'an, with which this judgment opened, is
a pointer to this very thing.

113. Chapter 20 of the Rules, covering Rules 468 through 507, empowers prison authorities, inter alia, to
fix scales of prison diet, number of meals per day, receiving food gifts from private societies and other
related matters as mentioned in this chapter. The basic point which attracted our attention was the
amount of money spent on each prisoner per day to meet his food requirements because according to
Islamic dispensation of justice, a dependent or a ward including a captive is the responsibility of the
guardian/ custodian/ captor/ keeper/ shepherd. Violation of such an important principle is certainly
cognizable.

114. Allocation of funds to cater to the actual daily dietary requirements of the prisoners was a matter
that demanded thorough probe though it was not challenged before us. We have however taken judicial
notice of this fact because improper nutrition of persons, under the control of a keeper/captor, is not
only a negation of1slamic tenets but also a source of constant irritation among the inhabitants of penal
institutions. Ayat 56 of Sura 24 of Holy Qur'an draws the attention of its readers to the Divine promise
that when He establishes the rule of believers on this earth, the element of fears and apprehensions of
all categories vanishes and in exchange peace and security prevails. The KHAUF gets converted into
AMAN. This is supposed to be a guarantee available in the Constitution of every Muslim country and the
State should takes steps to fulfill the Divine promise, whenever it is brought to its notice that a certain
deficiency is a source of trouble for any disadvantaged group in the society.

115. Chapter 20 of the Pakistan Prisons Rules deals with the dietary requirements of the prisoners. This
chapter consists of 40 rules starting from rule 468 and ends up with rule 507. Rule No.468 authorizes the
Inspector General of Prisons to fix scales of prison diet. The scale for labouring and non-labouring
prisoners as well as ailing prisoners is also prescribed. Rules 472 and 477 prescribe scales for the
morning, mid day and evening meals etc. for each prisoner. Special diet on Eids and Aftari during the

1517
month of Holy Ramzan is also prescribed. The good thing in these rules is that diet money has not been
prescribed and instead the scale of meals has been prescribed in grams. However these scales also need
revision because the other persisting complaint is that even quantity wise the food is exiguous.

116. The amount of money allocated by the Provincial Government to meet the dietary requirements of
the prisoners is deplorable, to say, the least. A sum of @ Rs.19.57 per person was allocated by the
Punjab Government to the prison department to defray the expenses of three meals a day in the
prisons. This amount was later increased to Rs.33 per person per day in 2006-2007. We are told that the
Government is now considering increasing this amount to Rs.50 per person per day which means that
three meals would be covered by fifty Rupees per person per day. Even this amount is insufficient
keeping in view the prices of food stuff.

117. The amount of money allocated by the N.-W.F.P. Government for an under-trial prisoner per diem
is Rs.35.57 and for a convicted(labouring) prisoner per day' is Rs.39.04. This amount is the current
dietary charge as stated by the Office of Inspector General of Prisons N.-W.F.P. Peshawar. The amount
of money allocated for three times diet in the Province of Balochistan is approximately Rupees 37.00 per
prisoner per day. This state of affairs in all the Provinces does not reflect a satisfactory picture.
Malnutrition coupled with uncompensated labour would certainly earn for the prisons the name of a
Kharkari camp or more of a concentration camp under enemy occupation rather than a prison house in
one's homeland. The Injunctions of Islam are very clear on this point. The Muslims are ordained to make
adequate provisions for their dependents. These provisions include food, clothes, medicines and lodging
of the persons under their control. Reference in this connection may be made to Ayat 8 of Sura 76 (Al-
Dahar) of the Holy Qur'an.

118. A captive is the responsibility of his captor and the latter is, for all practical purpose, answerable
about the well being of the detenue. Bukhari, in Book LXXXIX, The Book of Ahkaam, Chapter 1 relates a
tradition on the authority of Musa bin Ismail to the following effect:---

"Surely! Everyone of you is a guardian and is responsible for his charges; The Imam (ruler) of the
people is a guardian and is responsible for his subjects; a man is the guardian of his family
(household) and is responsible for his subjects; a woman is the guardian of her husband's home
and of his children and is responsible for them; and the slave of a man is a guardian of his
master's property and is responsible for it. Surely, every one of you is a guardian and
responsible for his charges".

1518
119. This tradition is a notable commentary of Ayat 34 of Sura 4 of the Holy Qur'an. This tradition was
dilated upon by a Full Bench of the Federal Shariat Court in the case of Ansar Burney v. Federation of
Pakistan and others reported as PLD 1983 Federal Shariat Court 73 at page 81. Wherein it was held that
the word "Raa" means a herdsman, shepherd, guardian, keeper, protector. "The functions of a shepherd
are firstly to graze or tend herd which makes him undertake the responsibility of a provider, secondly to
protect it from the attacks of wild animals which gives it a sense of protector and thirdly to see that a
member of the flock does not stray from the path. In that case he can also exercise his authority of
retribution. Primarily the shepherd uses all means of love for keeping the members of the flock from
straying". Another tradition might as well as be considered. It has been mentioned on pages 277-278 of
the Book Al Mausooatal Qazaya, a book containing the cases decided by Holy Prophet Muhammad
(p.b.u.h.), printed by Fatah Foundation Pakistan, on the authority of Behqi in Sunan-e-Kubra, that a
prisoner (who was held as a hostage because two Muslims had been captured by his tribe) entreated
the Holy Prophet (p.b.u.h.) for food and water who is reported to have said approvingly: This is your
need. Thereafter he was released in exchange for the two Muslim captives.

120. In this view of the matter we feel that even a sum of Rupees fifty per day to defray expenditure on
three meals per person is inadequate. Learned State counsel does not disagree with the aspect. Since
the amount is not mentioned in the rules so we cannot declare it ultra vires the Injunctions of Islam but
we want to make it clear that adequate provision has to be made by all the Provincial Governments to
rationalize the quantum of dietary sanction for the prison population because the Islamic. Injunctions
are very clear on this point. Rule 176(iii) is declared violative of the aforesaid Islamic Injunctions because
it provides that a prisoner on transfer will get diet money of Rupees Three per meal. This diet money will
not buy even one thin loaf of bread. Unless otherwise deleted or suitably amended this provision will
cease to be part of the Code after 01.12.2009. The minimum diet amount per meal should be Rupees
50/- which amount will be revisable every three years.

SEGMENT TWELVE

FAMILY LIFE

(ISSUE NO.I, IX)

121. During the course of arguments on various points relating to different petitions, the scourge of
increasing drug addiction and immoral activities in the prison houses also came under discussion. It was

1519
noticed that the lack of facilities for conjugal sex for married prisoners was an additional factor for
continuance of the practice of anal sex as an offshoot. In this process the comparatively young and new
entrants in the prison become potential targets of the sex hungry senior denizens of the barracks. One
of the sinister consequences of sexual deprivation erupts in the form of drug addiction other than
venereal diseases. Due to the efforts of certain committed human rights activists, a vigorous campaign
through print media for improving the living conditions of prisons was initiated in the decade of 1980. A
positive result of this drive was an amendment in Rule 544 by N.-W.F.P. Government on 4-1-2005
followed by addition of Rule 545-A in the Pakistan Prison Rules, 1978 by the Government of the Punjab
on 3rd May, 2007. Both the Notifications merit Honourable mention by way of reproduction in this
judgment.

1. NOTIFICATION

No.4/44-SO(PRISONS)HD/2004.-- In exercise of the powers conferred by Section 59 of the Prison Act,

1894 (IX of 1894) the, Government of the North West Frontier Province is pleased to direct that in the
North West Frontier Province Prisons Rules, 1985, the following further amendments shall be made,
namely:-

AMENDMENT

The existing rule 544 shall be renumbered as sub rule (i) of this rule and after sub-rule (i), as so
renumbered, the following new sub-rule (ii) and (iii) shall be added, namely:---

(ii) Those convicts whose term of imprisonment exceeds five years shall be allowed to keep their
spouses with them inside the jail premises in place specially meant for the purpose for three consecutive
days thrice in a year subject to the following conditions:---

(a) only that person will be allowed who is legally married to a convict and whose identity has
been certified by the District Coordination Officer concerned;

1520
(b) such male convict who has more than one wife will be allowed two days for each wife at a
time;

(c) only children `below the age of six years will be allowed to accompany during such
arrangement;

(d) those convicts who can not bear the maintenance charges shall be provided meal etc. from
the jail cook house free of cost as per provision of rules, while those convicts who can afford to
run their own kitchen shall be allowed to do so;

(e) the convicts who are convicted on the charge of terrorism or anti-state activities shall not be
allowed to avail the facilities permissible under this sub-rule, except with the prior consent of
Government;

(f) The Superintendent jail will detail one or more Assistant Superintendents Jail who will be
responsible for maintaining all the relevant record i.e. date of visit and other particulars of the'
spouses of the convict concerned under the supervision of Deputy Superintendent Jail; and

(g) monthly statement of convicts who have availed such privileges be sent to Inspector General
of Prisons.

(iii) For availing facilities under sub rule (ii), a convict or his spouse shall apply through the
Superintendent Jail concerned to the District Coordination Officer of the District to which they
belong.

2. NOTIFICATION

1521
No.SO(R&P) 8-3/2005. In exercise of the powers conferred upon him under section 59 of the Prisons Act,
1894 (IX of 1894), the Governor of the Punjab is pleased to direct that in the Pakistan Prisons Rules,
1978 to the extent of their application in the Province of the Punjab, the following further amendments
shall be made:-

2. AMENDMENTS

In the said rules---

(1) after rule 545, the following rule 545-A shall be inserted:

"545-A. Special meetings.--- (1) In addition to the privileges conferred by these rules, a prisoner
convicted for a term exceeding five years shall be allowed to keep with him, his, spouse and child below
the age of six years, inside the jail premises in a place specially meant or reserved for this purpose
subject to the following conditions:-

(a) this right may be exercised three times in a year for three consecutive days:

Provided that where a male convict has more than one wives, each of them shall be allowed to
remain with the convict for three consecutive days;

(b) the District Coordination Officer of the district where the convict is confined may grant
permission for such a meeting on the application of the convict or the spouse of the convict
forwarded through the Superintendent Jail;

(c) only the spouse whose identity has been certified by the District Coordination Officer shall be
allowed to avail this facility;

1522
 (d) the spouse and the child shall be provided meal etc. from the jail cookhouse, free of cost, as
per provision of these rules. A convict who can afford to run his own kitchen may be allowed to
do so; and

(e) the convict who is confined on the charge of terrorism or anti-state activities shall not be
allowed to avail this facility except with the prior permission of the Government.

(2) The Superintendent Jail shall depute one or more Assistant Superintendents Jail to maintain
all the relevant record that is, date of visit and other particulars of the spouse and the child of
the convict under the supervision of a Deputy Superintendent of Jail.

(3) A monthly statement showing such meeting shall be sent to the Inspector General of
Prisons."

(Khusro Pervaiz Khan)

Secretary to Government of the Punjab

Home Department

122. It is indeed a welcome start. It is hoped that the Interior Ministry will, through coordinated efforts
of the Provincial Home Secretaries and Provincial Inspector General of Prisons, widen the scope of this
amendment not only in the larger interest of prison population but also for the reason that maintenance
and protection of family life is that chapter of Islamic law on which extra ordinary emphasis has been
placed in the Holy Qur'an. Prolonged absence of the bread winner and lack of contact with members of
his family can give rise to varied forms of social evils. Article 25(3) of the Constitution in fact speaks in
terms of making special provision for the protection of women and children. Article 35 of the
Constitution of Pakistan, for that matter, stipulates that the State shall protect the marriage, the family,
the mother and the child. In this connection provision contained in clause (d) of Article 38 of the
Constitution of Pakistan may be recapitulated with profit:-

1523
 The State shall---

(d) provide basic necessities of life, such as food, clothing, housing, education and medical relief,
for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily
unable. to earn their livelihood on account of infirmity, sickness or unemployment; " (Emphasis
added)

123. We are aware of the fact that even the limited physical movements of a prisoner or a detenue,
during day and night, are under strict watch and control. He is neither enabled not encouraged to
observe basic human values despite the fact that the pre-amble of our Constitution enunciates the
resolve in very clear terms:---

"Wherein the Muslims shall be enabled to order their lives in the individual and collective
sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an
and Sunnah."

The Constitution expects 'that adequate State- sponsored measures shall be adopted in order to enable
backward and deprived classes and sections of society to order their lives in accordance with Islamic
tenants and it is only then that they should be expected to become responsible citizens.

124. The Home Department can formulate a policy wherein the married prisoners, except lifers and
condemned prisoners, are enabled and encouraged, subject to all necessary and reasonable conditions,
to avail a week's parole every four month in the larger interest of maintenance of Family Life. The
spouse and children of the accused have a legitimate claim upon the latter. The family union of the
condemned prisoners and lifers_ can be arranged in the family quarters within the prison walls. It will
not only have a salutary effect upon the prison population but the above mentioned steps will be
positive measures towards reduction of some problems arising on account of over population in the
prisons. It is hoped that all the Provincial Governments will consider what has been stated, particularly
in this segment relating to family life of prisoners, and make amends by extending on the one hand the
scope of amended Rule 544, but also take positive steps to introduce conjugal-oriented parole scheme
in appropriate cases and also initiate family reunion on auspicious occasions within the prison precincts

1524
in the larger interest of preservation of Family Life. It is further hoped that necessary action will be taken
by the end of 2010 and a report to that effect will be sent by the Secretaries Home of all the Provincial
Governments. Secretary Interior, Government of Pakistan will also send his own report containing an
objective assessment as regards the efforts made and steps taken in this regard. These reports must
reach the Registrar of this Court by 31-1-2011 whereafter this aspect of the case will be examined in
February 2011.

SEGMENT THIRTEEN

CONDEMNED PRISONERS

(ISSUE NO.VI)

125. This topic is the subject matter of 6th reframed issue. Rules relating to Condemned Prisoners are
contained in Chapter 14 of the Pakistan Prison Rules, 1978 whereas the main provision on the subject is
section 30 of Act IX of 1894. This item was taken up Suo motu because of a general demand on behalf of
the prisoners made known through press clippings and direct appeals to the Federal Shariat Court. A
member of this Board (The Author Judge) had visited jails on three occasions during the last six years to
see the actual living conditions of the prisoners in general and those in particular who were awaiting
final adjudication of their appeals/confirmation of death/decision on their mercy petitions. The
condemned prisoner have to undergo a protracted period of uncertainty in the persistent inclement
weather and hostile surroundings.

126. Provisions relating to the living conditions of prisoners under sentence of death are contained in a)
Section 30 of the ' Prisons Act, 1894 (Act No.IX of 1894) and b) chapter 14 Pakistan Prison Rules, 1978
and in particular Rule 330. Both the provisions are detailed below:---

"Section 30. Prisoners under sentence of death.--- (1) Every prisoner under the sentence of
death shall, immediately on his arrival in the prison after sentence, be searched by, or by order
of the Deputy Superintendent, and all articles shall be taken from him which the Deputy
Superintendent deems it dangerous or inexpedient to leave in his possession.

(2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be

1525
 placed by day and by night under the charge of a guard.

"Rule 330.--- Every prisoner under sentence of death shall be searched immediately on arrival in the
prison by, or under the orders of, the Deputy Superintendent, and every article of clothing and other
articles of whatever description shall be taken away from him. After having furnished him with prison
clothing, bedding, aluminum utensils and light Chappals, the Deputy Superintendent shall remove him
to a cell and forthwith make arrangements for his watch and ward." (Emphasis added)

127. Rules 330 through 364 regulate the living conditions of a prisoner between the period when he is
sentenced to death and the actual date of execution or acquittal on account of acceptance of appeal
etc. During this period, the cell, where he is to be confined, is examined and carefully watched from the
point of view of security. Special guards are placed "both by day and night." The guards are equipped
with sticks and whistles. The keys of these death cells are in the custody of head warder. Prisoner has to
be handcuffed before his is permitted half an hour stroll in the courtyard out of the cell. Not more than
one convict is allowed to be in the enclosed courtyard at one time during which period the door of his
cell and the yard door must be secured by locks. The condemned prisoner is searched twice. Electrical
light during night constantly illuminates his cell to ensure that the convict has not disappeared. The food
supplied to him is examined before it is served. Rule 346 permits the use of bar fetter on account of
punishment or when he is out of prison on transfer. At the time of his execution all prisoners in the
prison remain locked-un. In this view of the matter it was decided to take Suo Motu Notice of Chapter
14 of the Pakistan Prison Rules which deal with prisoners under sentence of death. We heard arguments
on this aspect of the case on two occasions: before June 2009 and then during last week of August 2009.

128. Under Rule 329, as soon as a prisoner is sentenced to death by the trial court the police officer who
attends the trial is under legal obligation to inform the Superintendent of the prison of the fact of such
conviction on his return to jail and from that point onward starts the rigorous regime of search and
confinement as well as special guards over the convict who is henceforth termed a Condemned
Prisoner. He is kept in a cell apart from all other prisoners by day and night. From sunset to sunrise the
cell of the condemned prisoner is kept bright by electric light so that he is under strict observation all
the time. The condemned prisoner is searched twice daily under Rule 342 by the Assistant
Superintendent of Jail and the food intended for the consumption of a condemned prisoner is examined
by the jail authorities who have the discretion to withhold any article which in their opinion is
suspicious. From the time the trial court awards the sentence of death, at the end of an agonizing and
protracted trial, upto the time of the acceptance or rejection of his mercy petition by the President of
Pakistan after dismissal of his appeal in the Apex Court, he has to pass through a' distressing period of
time awaiting confirmation of death sentence and disposal of his appeal by the Provincial High Court

1526
followed by an appeal before the Apex Court and subsequent mercy petition as well. The mercy petition
is the last hope of a condemned prisoner. The conditions in which a condemned prisoner spends a trying
period extending over a few years are simply deplorable, inhuman and unpardonable.

129. It may be legally justified for the State to detain prisoners pending execution of sentence but there
is no moral or lawful reason whatsoever to subject such a convict to humiliation and disgrace. As a
matter of grace even embarrassment for such a prisoner should not be countenanced. A prisoner who is
serving a long term of sentence while awaiting disposal of his appeal against capital punishment is
already passing through a distressing period. He has to be saved from further agony. After all the system
of administration of justice revolves around human beings who have feelings like other free human
beings. Disgrace and agony is alien to the concept of justice.

130. Ayat 60 of Sura 22, (Al-Haj) of Holy Qur'an has permitted retribution alone for the wrong done by
an accused but this verse at the same time refers to the two attributes of Allah: that Allah is Pardoning
and Forgiving. These verses do not sanction severe treatment or added agony for the condemned
prisoners. Ayat 126 of Sura 16, (Al-Nahl) reminds the believers that punishment shall not exceed the
injury actually inflicted.

"And if you take your' turn, then retaliate with the like of that with which you were afflicted; but
if you are patient, it will certainly be best for those who are patient."

The lesson therefore is that death penalty may be awarded to a killer but there is no authority to treat
him inhumanly for a decade or so before he is hanged by neck till death. A prisoner cannot be kept
under a constant and unending fear of death in hostile surroundings for an uncertain period.

131. The fact of the matter is that even though the Sessions Judge is competent to pass the sentence of
Death at the end of the trial yet his order is subject to confirmation by the High Court. The process of
confirmation or otherwise of the death sentence awarded by the Sessions Judge invariably takes a few
years. Even if death sentence is confirmed the condemned prisoner has a right to move the Supreme
Court against the decision of the High Court. The possibility of acquittal of the convicted prisoner at the
High Court level or in appeal before the Supreme Court cannot be ruled out. Even after the appeal of the
convict has been dismissed in the Apex Court the prisoner still retains the right of seeking pardon,
reprieve, respite, remission, suspension or commutation of the sentence passed by any court, tribunal

1527
or other authority. It is only after the President has rejected the mercy petition of the convict that the
sentence of capital punishment passed by the Sessions Judge becomes final and capable of execution. It
has however been observed that in 1988 and now in the year 2008 the Federal Government did think in
terms of converting death penalties into life imprisonments. But this is besides the issue.

132. It, therefore, means that a condemned prisoner, who has a chance of acquittal in appeal or of the
conversion of the capital punishment into life imprisonment, has in fact to wait for a period of about 10
years after the date of the pronouncement of the original judgment of the trial court. The trial itself
takes a few years. A question therefore arises as to when should such a convict be treated as a
condemned prisoner. This question is important because the agony through which he passes as a
condemned prisoner must be reduced to minimum possible period. A period which is essential for all
practical purposes.

133. After considering this issue from various angles in the light of Injunctions of Islam, we are of the
considered view that a convict should not be declared a condemned prisoner from the date of
pronouncement of the verdict of guilt by the trial court for the reason that unless the sentence of death
is confirmed by the High Court the sentence awarded to the accused by the trial court is not capable of
execution. The execution can legally follow only after confirmation by the High Court has taken place
though the accused retains the right of appeal before the Supreme Court and the right to move a Mercy
Petition before the President of Pakistan. That means almost a decade before his fate is finally decided.
The delay is not the fault of the prisoner. He should therefore be declared a condemned prisoner at the
stage when the death sentence is legally executable. He would still be within his right to move the Apex
Court or initiate a mercy petition under Article 45 of the Constitution. We may however add that mercy
petitions should not be allowed to linger on for years and should be decided in a reasonable period,
preferably within a month.

134. Let us also consider the living conditions of condemned prisoners. The cells in which a condemned
prisoner is confined under strict supervision usually measures 9 x 12 feet. The prevailing position in the
prisons is that about 5 to 7 condemned prisoners are detained in a cell measuring 108 Sq. Ft. leaving just
15 square feet for each convict. For all practical purposes this is inhuman. If however it is conceded that
only one person is retained in a death cell even then it amounts to a case of an uncertain and long
period of solitary confinement which is contrary to the provisions contained in sections 73 and 74 of the
Pakistan Penal Code.

1528
135. If we keep Article 13 of the Constitution in view we find that there is a positive guarantee of
protection against double punishment. On the one hand the condemned prisoner is being already
detained in the highly protected prison and on the other hand he along with a few other condemned
prisoners is under additional punishment by way of strict surveillance and isolation in a cell where he
has no facility even to answer the call of nature in complete privacy. In this view of the matter the
provisions of the Pakistan Prison Rules are tantamount to an additional chastisement which is violative
of the protection guaranteed by he Constitution against double punishment. It is worth noting that the
cell allocated to the condemned prisoner is also his wash room (if the sophisticated term wash-room
could be used for that smelling niche in the cell) which means that he is forced to live in adverse
conditions as well. He is permitted only half an hour walk in the morning and half an hour stroll in the
evening with bar fetters.

136. Ayat 70 of Sura 17 of the Holy Qur'an confers human dignity upon every person. This very principle
finds mention as a fundamental right in Article 14 of the Constitution. We are made to believe that the
dignity of man and, subject to law, the privacy of human being is also inviolable. The compulsion of
condemned prisoners to use the same small congested living space as a W.C. within the sight of other
dwellers in stinky atmosphere is certainly violative of human dignity. The Right of Privacy is a very well
recognized Injunction of Islam. Ayaat 58/59 of Chapter 24, Sura An-Nur of Holy Qur'an, relate to the rule
of personal and family privacy. It is observed by commentators of Holy Qur'an that non-observance of
the principle of privacy may even lead to evil deeds.

137. The basic purpose of detention of a prisoner is to restrict his movement and ensure that he does
not escape till the time his case is finally decided. The principle enunciated by the Islamic teachings is
that the things are judged by the intention and the motive behind it. So if the purpose of confinement is
to secure the attendance of a condemned prisoner to face execution ( i f so decided ultimately) it does
not give-a licence to jail authorities to treat the convict in a cruel manner during the hiatus.

138. The Holy Qur'an enunciates the principle of ADL and EHSAN in Ayat 90 Sura 16. The verse says:-

God commands justice,

The doing of good, and

Liberality to kith and kin,

1529
 And He forbids,

All shameful deeds

And Injustice

And rebellion.

He exhorts you

That ye may be mindful.

Protracted harsh treatment with a detenue, already confined in a prison house, only because he is
awaiting result of his appeal, is indeed violative of the Qur'anic principles of Ehsan. Such an unfriendly
treatment is covered by the mischief of Zulm as enunciated by Holy Qur'an.

139. Detention of a prisoner in death cell for a long period and keeping him under strict surveillance,
when his appeal is pending disposal, or his mercy petition is being processed, amounts to hammering a
message every moment that the detenue is a condemned prisoner. He looses hope as a result of
circumstances thrust upon him. This violates the Injunctions of Islam contained in Ayat 53 of Sura 39 of
Holy Qur'an which says that even those who have transgressed should despair not of the mercy of God.
The prison department should therefore create conditions that infuse hope in the convict particularly
because the existing living conditions in our prisons are already demeaning and dehumanizing, to say
the least. The Government owes a debt to the prison population because all the majestic buildings
under the use of Provincial Government, including the Government Houses, the Civil Secretariat and the
Prison houses were constructed with the uncompensated labour of the whilom prison population during
the British regime. The digging of the canal network over long stretches and growing jungles like Changa
Manga was also the output of millions of tiring and unpaid working hours of the incarcerated population
over a period of decades. If we were to add up the amount of money payable as wages to the prisoners
for the unaccountable hours of hard labour extracted from the voiceless and oppressed denizens of
bounded barracks, the resultant figure should put to shame any reasonable citizen of this sub-continent.

140. There is another tradition reported in Bab-e-Mazalam, Volume 9 of Sahih Bukhari, which consists of
following four parts:---

1530
 "Be gentle to them and oppress them not, attract them by good countenance and repulse them
not by an ill demeanor. Be careful of the distress call of the oppressed. ,Between him and Allah
no screen exists".

Yet there is another tradition in Chapter 80 in Sahih Bukhari to the following effect:---

Make things easy for the people

Don't create difficulties

Give good tidings

Don't create circumstances which generate hatred.

141. This tradition appears to be the elaboration of the Qur'anic principle of Yusar as mentioned in Ayat
185 of Sura 2 which says:---

"Allah intends every facility for you. He does not Want to put you in difficulties".

This principle is further elaborated in Ayat 4 of Sura 65:

"And for those who fear Allah,

He will make their path easy"

and Ayaat 5,6, of Sura 94 of Holy Qur'an.

1531
 (5) So, verily,

With every difficulty

There is relief:

(6) Verily, with every difficulty

There is relief.

94/5-6 (Al-INSHRAN)

142. The other significant principle enunciated by Holy Qur'an is that no one shall bear a burden greater
that he can bear. This principle has been mentioned six times in the Holy Book. Reference:

Ayaat 233, 286 of Sura 2, Ayat 84 of Sura 4,

Ayat 42 of Sura 7, Ayat 62 of Sura 23 and

Ayat 7 of Sura 65 of Holy Qur'an.

In order to lay emphasis on the significance of this principle in various aspects of human life, a special
prayer has also been ordained for Muslims. Translation of the supplication contained in Ayat 286 of Sura
2 is worth considering:-

"On no soul doth God place a burden greater that it can bear. It gets every good that it earns,
And it suffers every ill that it earns. (Pray) Our Lord! Condemn us not if we forget or fall into
error, our Lord! Lay not on .us a burden like that which Thou didst lay on those before us; Our
Lord! Lay not on us a burden greater than we have strength to bear. Blot out our sins, and

1532
 grant us forgiveness. Have mercy on us. Thou art our Protector; help us against those who stand
against Faith". (Emphasis added)

143. Let us also examine this question from another angle namely, the actual position of the pending
appeals of condemned prisoners in various courts. In this way we will be able to understand the gravity
of the situation faced by tight-lipped condemned prisoners. The total number of condemned prisoners
languishing in 26 Jail of the Punjab alone as on 05.03.2009 was 6674. The fate of their appeals, pending
disposal, is reflected from the following statement:---

Number of appeals pending in Number of appeals (of

Lahore High Court, Lahore since: Punjab Province) pending in the Supreme Court of Pakistan
since:
(a) Last 1 year = 2382 Last 1 year : 270
(b) 1 to 2 years = 1347 1 to 2 years : 160
(c) 2 to 3 years = 923 2 to 3 years : 108
(d) 3 to 4 years = 685 3 to 4 years : 53
(e) 4 to 5 years = 351 4 to 5 years : 33
(f) Above 5 years: 286 Above 5 years : 34

Mercy petitions pending in GHQ were 12 in number whereas Mercy petitions pending before President
of Pakistan were 47 as on .31-12-2008. It may be noticed that these 6674 prisoners, confined in 26
prisons all over the Province, are awaiting result of their appeals in" a tense, uncertain and over-
wrought frame of mind.

Under the circumstances we consider that a prisoner should be treated as Condemned Prisoner
only after his appeal in the High Court or the Federal Shariat Court has been dismissed and/or the
sentence of death has been confirmed by the High Court or the Federal Shariat Court under
section 376 of the Code of Criminal Procedure. Rules 329 through. 364 in Chapter 14 of the
Pakistan Prison Rules as well as section 30 of the Prisons Act, 1894 provide that as soon as a
prisoner is sentenced to death he will be deposited in the death cell and subjected to special care
as provided in Chapter 14. We have held that a prisoner under sentence of death shall be deemed
to be a condemned prisoner only when the death sentence awarded by the trial court has been
confirmed and it becomes executable i.e. when the death sentence has been confirmed under
section 376 of the Code of Criminal Procedure and consequently portion of the legal provisions

1533
which authorize the prison authorities to treat a prisoner under sentence of death as a
condemned prisoner before confirmation of his sentence i.e. it becomes executable, is declared
to be violative of the principles of Islam.

SEGMENT FOURTEEN

GROUND REALITIES

(ISSUES NOS.IV, IX, X)

We will discuss the question of ground realities under four distinct heads namely:--

A . INTRODUCTORY

B. CHALLANGING PROBLEMS

C. PROPOSED SOLUTIONS

D. ROLE OF PRISONS.

A. INTRODUCTORY

144. The central problem in the prisons is the prolonged deprivation of prisoners. As he enters
the prison his attire is changed. He is not free to move about. He has no access to his family
members. He looses contact with outside world. Hostile and unfriendly atmosphere prevails all
around. The sight of strong and lofty walls, fortified with concrete watch towers, and the steel
barracks all around are a constant source of depression. His entire possession in the barrack
consists of a cup, a plate, a spoon, a blanket, a cotton Durrie and of course his history ticket. This
piece of paper, known as history ticket, is his total identity. Conjugal sex is denied henceforth.
Homosexuality instead of heterosexual contact prevails. An oppressive and unfamiliar regime
controls his conduct. He has the uncanny feeling of being watched by thousand eyes throughout
his stay. He is a permanent suspect and presumed to be a potential malingerer. Disowned by
society and unclaimed by friends, the prisoner sojourns in a forsaken barrack for a stipulated

1534
period. From within he is broken as he is enmeshed in a maze of bureaucracy. His personality gets
split. An outcast, exposed to desperate criminals, he looses sense of proportion and security. He
can neither witness the rise nor the setting of sun. He can neither watch the flight of birds back to
their nest nor can he observe the movement of moon in the starry nights. The only hope on which
he lives and the only thing that sustains him is the sight of a fruitless day creeping into a somber
dusk because this very twilight carries a veiled message that another day of misery has in fact
passed away. He entered the strongly guarded penitentiary with no voice in the affairs of his own
life or the life of his family members. He is no more master of even his own destiny. He lives in a
persistent vegetative state. "The best prison community is no more than an extreme totalitarian
society and the most it can produce is a good convict, who is quite different from a good citizen."

145. Prison as a means of coercive confinement is a source of hardships and many ills. Prison
administration, under the peculiar prison conditions, is itself beset with a host of serious
problems at the same time. The current prison problems include over-population, poor living
conditions within the prison premises as well as inadequate medical facilities and minimal
'vocational/educational facilities. It is indeed a continuing wrong. Then there are problems faced
by those who visit their relatives and friends in the prison houses. Another related issue is the
regular supply of narcotics and illicit arms and mobile phones through "approved" agents who
come under the garb of visitors and have already penetrated the prison administration. Another
category of the problem is the service conditions of prison administrations. These officers are
obliged, as a part of their duty to continually handle a community of angry and deprived persons.

146. The element of over-population in the prison houses is a source of many ills. It is the bane of
Jail administration. We have scanned the Population Statement of Prisoners confined in Jails of
the Punjab as on 31-12-2008 as well as the crime-wise and section-wise Monthly Population
Statement for the month of December 2008 as well as the statement showing the number of
juvenile convicts/undertrial and condemned prisoners in the Punjab Jails as on 31-12-2008. The
figures were obtained from the office of the Inspector General Prisons, Punjab. The population
chart shows that out of 32 jails in the Province, 30 prisons are over crowded. As against the
authorized strength of 229 prisoners the District Jail Multan is maintaining a choking level of 807
prisoners, the Central Jail Gujranwala has a population of 4481 as against, the permissible
strength 913 prisoners. It means that the maximum over-crowding in Multan by the end of the year
2008 was 394%. This is a staggering disclosure. The gravity of the problem needs immediate attention as
it is in fact a human problem. The cause of the oppressed is being shelved because they are not
permitted the right of protest before any mundane tribunal.

1535
147. The number of prisoners languishing in jails of the Punjab as on 31-12-2008 was 59965 out which
999 were juvenile convict/under trial prisoners whereas the total strength of female prisoners was 856.
It is however heartening to note that the number of female prisoner is less than a thousand but 'it is
unfortunate that the number of juvenile prisoners is approximately one thousand. This figure serves a
note of caution to the entire nation. The ratio of adults to juvenile is 60 to 1. These figures were
obtained from the office of the Inspector General of Prisons, Punjab, Lahore in April 2009. These figures
reflect the situation only in one Province. The situation in other Province would not be much different.

148. These figures also show that out of 60 thousand prisoners the number of under trial prisoners is 40
thousand. These figures suggest that with better management of trial and bail petitions and providing
Judicial lock-up, the number of prison problems could be reduced considerably.

149. We have taken judicial notice of the service conditions of prison staff. We have also attempted to
identify and enumerate the various problems facing this 'sector of administration of Criminal Justice. We
have in this exercise made an effort to proffer solutions as well for consideration of the Executive and
the Legislature. We are of the considered view that things can improve provided sincere efforts are
devoted towards solution of these problems.

150. We will not hesitate in reiterating the fact that the living condition in prison houses is not up to the
mark. A reference may be made to the case of Majeeda Bibi V. Superintendent Jail reported as PLJ 1995
Kar. 1. It was a Division Bench case. The Central Prison Karachi was visited by the erstwhile Chief Justice
Sindh High Court along with 18 Honourable Judges on 30-12-1993 who, for the first time in judicial
history undertook such massive inspection of the Prisons. The Honourable judges held as follows:---

"During the inspection, it was noticed that the condition of most of the prisoners who were kept
in the Security/Bund Wards was pathetic and pitiable. The manner in which they were kept in a
cell, having an area of few feet, in solitary confinement with bar-fetters on. If a comparison of
the conditions of these prisoners is possible, then it can only be made with the animals who are
kept in zoo. It can be said without any hesitation that even the animals in the zoo are better
placed as they have no bar-Teeters inside the cage and they are provided with better facilities.
Most of the prisoners complained that they were kept inside the cell for several days with bar-
fetters on and were taken out only once in a week for a bath, otherwise they had to eat, drink,
sleep and to relieve themselves in the cell in the presence of other prisoners and had to perform
all other daily routine inside the small cell some of which even do not have facility of direct sun-

1536
light……..In some of the cells, prisoners were kept in solitary confinement, while in some of the
cells there were 2, 3 and even 5 prisoners. Neither there were any arrangements for proper
supply of drinking water nor there were any sanitary arrangements. Several cells were full with
filthy and dirty water and on account of the bad smell it was difficult even to stand outside the
cell.

During the inspection, it was further noticed that:

(i) entries made on the history tickets were not upto date;

(ii) some of the prisoners were kept in these cells as punishment, but the period for which they
were punished to stay in the cell was not specified on the history ticket;

(iii) some of the prisoners complained that they have been confined in these cells because the
Superintendent or Jail/Staff was not happy with them;

(iv) some of the prisoners also complained of beating and maltreatment by the staff of the
prison;

(v) generally all the prisoners complained that they were not allowed to meet the visitors;

(vi) several prisoners complained that they were not allowed to meet the visitors;

(vii) the manner in which the prisoners were kept in the cell was in gross violation of the Prison
Rules."

1537
It was further held as follows:

"In the circumstances we direct that the copies of The Constitution of Pakistan, Pakistan Prisons
Act, the Prisoners Act and the Rules framed there under, Jail Manual, Pakistan Penal Code,
Criminal Procedure Code and Evidence Act etc. should be made available in all the prisons
throughout the Province of Sindh for use and for reference by the prisoners. We further direct
that copies of the Constitution and Jail Manual should also be made available in Urdu and
Sindhi. We further direct that arrangements be made for providing more useful and educative
books in the libraries of all the jails in the Province of Sindh."

B. CHALLANGING PROBLEMS

151. As stated above the Prison Administration is itself plagued with a number of serious problems.
Under the circumstances we would also advert to the issue of the service conditions of the prison
bureaucracy and the stark atmosphere in which the prison officers themselves spend a life term and in
turn suffer the reaction of prisoners which, in fact, is occasioned by of their own rigid attitude. Risks and
persisting tension in the atmosphere are added incidents of the peculiar type of job they have to
perform when they manage a prison house. Prison staff itself, under the circumstances, can be
considered part of Prison Population. Detailed below are some of the major problems which are being
faced by the Prison Administration and thereafter we will consider some proposals for solving these
problems:

(i) The basic problem is overcrowding in jails. In the Punjab Province alone the prisoner
population as on 31-12-2008 was 60,000 (to be precise 59,474) as against the sanctioned
strength of 21527. Out of 59,965 prisoners the number of under-trial prisoners is 41,505 i.e.
almost two third strength. This figure is a pointer towards (a) the urgent need of making
adequate provision for Judicial Lock-Ups in all those places where criminal cases are heard, (b)
proper management of trials and (c) liberalization of Bails in certain categories of offences.
Overcrowding in itself gives rise to multifarious problems which need not be recounted here.
Suffice it to say that overcrowding is the nursery of varied types of evils and moral aberrations.

(ii) Shortage of Warder Guards and other staff to combat recurring problems within the prison
premises due to overcrowding and related matters.

1538
(iii) Lack of modern equipments, which includes arms and ammunition as well as gadgetry, to
enable the staff to achieve fool proof safety and security of the prison barracks, boundaries and
prison population.

(iv) Absence of adequate funds to provide emergent and routine medical facilities for the
inmates within prison premises. There is dire need to revamp medical administration in the jails.

(v) Lack of appropriate vocational/educational facilities for the prisoners.

(vi) Absence of a properly planned programme for recreational activities. Availability of such like
facilities would go a long way to ensure reduction of prison problems.

(vii) Retarded career progression of the prison staff.

(viii) Lack of incentives to boost up morale of prison staff.

(ix) Long and uninterrupted association with criminals affects the psyche, conduct and responses
of the prison officialdom.

(x) Shortage of residential accommodation for the jail staff.

(xi) Non existence of correctional centres within prison premises.

1539
 (xii) Inadequate training facilities for jail staff at local and international level.

C. PROPOSED SOLUTION

(a) Construction of Judicial Lock-Ups at each Tehsil Headquarter for the safe custody of under-trial
prisoners. It will' go a long way not only to reduce crowding but will save the accused and police from
the hazards of negotiating cumbersome distances between Prison compound and Court premises. This
step will also ensure timely presence of under trial prisoners in the Courts and thereby reduce the
number of un-necessary adjournments of trials. The number of visitors to the Prison Houses will also
diminish, thus reducing pressure on the streets choked by vehicles.

(b) Establishment of the proposed open jail in Bahawalnagar at an area of 200 squares should be
undertaken immediately. 500 good conduct long term prisoners can be employed along with their
families in open jail for their rehabilitation. This sort of agriculture therapy is considered useful both for
the convicts and the Home Department. Every province can provide land for open jails. The open prison
system, which had been developed especially in the United States, the United Kingdom and the British
Commonwealth, and the Scandavian countries, was recognized in due course of time as an important
contribution to effective rehabilitation of prisoners. The Swedish Prison Code of 1944 and English
Criminal Justice Act 1948 gave legislative expression to progressive thoughts on the treatment of
offenders.

(c) Construction of jails in the Districts where previously no jail exists like District Nankana Sahib, District
Chiniot, District Khushab should not be delayed any more. Similarly another District Jail in Lahore along
River Ravi to feed District Courts near Data Darbar, can be added to solve the problem of overcrowding
and related issues in this city of increasing populace with rising rate of crime.

(d) Incentive based performance/pay package/career progression for prison staff, at par with the Police
employees, is long awaited. The present disparity in service conditions of prison and police staff
certainly affects the efficiency of prison staff, adversely.

(e) Establishment of Drug Rehabilitation Centres.

1540
(f) Establishment of Correctional Centres so that services of Sociologist/Social Workers, Psychiatrists and
Law Officers is readily available for redressing problems of staff as well as the prisoners.

(g) Watch and Ward Force of Prisons Department be increased proportionate to the increasing
population of prisoners in the jails according to the yard stick determined by the Government.

(h) Liberalization of Parole and Probation System so that maximum number of prisoners are released on
parole and probation system to reduce overcrowding. There is one good provision in Jail Manual namely
Rule 146 which allows release of a prisoner on ground of old age, infirmity or illness subject of course to
verification of the ailment by a Medical Board. The scope of the term illness has not been defined.
Prisoners suffering from various diseases like cancer, tuberculosis, coronary thrombosis, kidney
problems etc. who need constant care could be released on certain conditions.

(i) Expeditious disposal of cases to reduce strength of under-trial prisoners in jails. Moreover, bails can
be liberalized both in certain categories of offences and unavoidable delays in the completion of trials.

(j) Establishment of Training Institutes.

(k) Prisons Management and Information System.

(l) Provision of modern security equipment, gadgetry, arms and ammunition.

(m) Introduction of market oriented Trade Training Vocational skills and Prisons industries.

(n) Increase in the number of Death Cells in order to reduce pressure on the existing cells.

1541
(o) Introduction of a secure and properly guarded but a respectable system of receiving visitors who
come to meet prisoners.

(p) Reasonable number of family quarters for married prisoners.

(q) Cultural shows at regular intervals.

(r) Religious instructions with special emphasis on character building and moral values.

(s) Extra remissions on account of educational achievements like those provided by Rule 248(ii-a)
whereby under trial prisoners who pass matriculation or higher examination in first division during their
stay in the jail are duly rewarded . Better class jail facilities can be allowed to successful candidates with
effect from the date the result is announced.

(t) Canteen in every prison house can be established not only to avoid contact of lower prison staff with
prisoner on money matters but also provide much needed facility to incarcerated population.

(u) Family reunion in prison compound on auspicious occasions for well behaved prisoners.

(v) Introduction of insurance based compensation for the labour put in by a prisoner. Enabling rules be
incorporated to provide compensation/wages to the prisoners for the hard work put in by them during
detention period.

(w) Compulsory attendance/detention centres can be established as alternative to imprisonment of

young or first offenders wherein education facilities/guidelines can also be provided.

1542
(x) After release follow-up can be of considerable assistance. NGO's or even a new branch of social
service within prison discipline can be created wherein voluntary services of social workers, teachers,
psychiatrists and selected members of civil society can be obtained for the rehabilitation of released
prisoners so as to properly absorb them in social set-up.

(y) Free Legal aid facilities for poor prisoners both before and after conviction through the good offices
of Pakistan Bar Council at Supreme Court level and Provincial Bar Councils at the High Court and District
Courts level.

(z) In view of the mandate contained in Article 38 of Constitution there should be a° Community Centre
in each central prison wherein apart from arranging collective meals twice a day, arrangements be
made for congregational prayers five times a day, workshops, seminars, plays and other
recreational, educational, cultural, religious activities not only to keep the prison population
mentally and physically occupied but help them to exploit their hidden potential during the
forced detention period under the guidance and supervision of psychiatrists and social workers.
So far the prison discipline, over a period of more than a century failed to introduce steps for the
Reformation or Reclamation or Rehabilitation of prison population. Serious efforts for
assimilation of released prisoners in the social environment is urgently required. Three Rs. must
find mention in revised Jail Manual.

To expect, under the prevailing circumstances, that the prison beaurucracy will take initiative in
the above mentioned proposals and go beyond the terms of reference is in fact asking for the
moon. However tangible malts can be achieved if the prison officialdom could be persuaded to
work according to the letter and spirit of the authority already stipulated in the prison discipline.
But to achieve salubrious and beneficent conditions a sincere paradigm shift would be required. It
may also be added here that at least the prison houses located in the Provincial Headquarters
namely Karachi, Quetta, Lahore and Peshawar must have properly manned and separate but
effective de-toxification centres for the drug addicts is absolutely essential to combat the
increasing drug menace. In view of the increasing number of drug addicts the Federal
Government can provide funds to the Provincial Governments to construct Annex in the prison
compound to accommodate and treat the addicts in a separate section away from the non-addict
prisoners.

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D. ROLE OF PRISONS

One who misbehaves

With his slave (prisoner)

Shall not enter Paradise

(HADEES)

152. There are three functions of prisons: CUSTODY, CARE and CORRECTIVE. The purpose of
prisons is certainly custodial but the purpose of custody has to take care of prisoner and apply
corrective measures. The Corrective/Rehabilitation aspect is not visible in the Prison Discipline
applicable in Pakistan. The Jail Manual was drafted with the sole object of holding the undertrial
prisoners or confining the convicted persons. Effort should be made to clear the prisons and not
to fill them. The Corrective or Rehabilitation aspect must be introduced with a missionary zeal
and efforts should be geared towards after-release welfare of prison population. Relief,.
Reclamation and Rehabilitation should be the logo of new prison discipline. Those leaving the prisons
at the end of their terms must return home with the realization that human life is a Divine gift
which has to be honoured because it has a meaning and a purpose:---

"Verily Thy Lord is full of

Forgiveness for mankind

For their wrong doing"

Ayat 6 Sura 13 Sura Raad Al-Qur'an "Did you think

That We created you

Without any purpose, and

You will not be

1544
Brought back to Us"

Ayat 115 Sura 23 (Al-Muminun)

153. There is however a salutary provision in the otherwise demanding and depressing prison
rules, contained in Rule 304, Chapter 12 of Pakistan Prison Rides, 1978. It states that:

"Rule 3 04.-- when a juvenile prisoner is due for release and required assistance to settle
in life, the Superintendent shall, send' intimation to the Secretary of the District
Committee of the Prisoners' Welfare Society of the district of his residence at least one
month before the date of release."

154. The rights of children have been specifically enumerated in Holy Qur'an which should be a
part of our legal code. Noted below" are the provisions where Holy Qur'an mentions the rights of
children in the domain of their sustenance and upbringing, including protection from evil
influences, facilities for education, right to life, proper guidance, sympathetic attitude and a hos t
of other things.

"Ayat 233 Sura 2 Ayat 9 Sura 4

Ayat 141 Sura 6 Ayat 40 Sura 14
Ayat 31 Sura 17 Ayat 3 Sura 22
Ayat 74 Sura 25 Ayaat 7-12 Sura 28
Ayaat 13-19 Sura 28 Ayaat 6-7 Sura 65."

Learned Standing Counsel agrees that when a juvenile prisoner is released there should be some
body to guide him and enable him to enter life as a productive unit of society. The Government
can consider amending the rule whereby Probation Officers, particularly in cases of orphan juvenile
offenders, are deputed to provide necessary assistance.

155. The fundamental guiding principle of Islamic polity, as enunciated by Holy Qur'an and Sunnah of
the Holy Prophet PBUH, in so far as human affairs are concerned, is the establishment of Justice and

1545
negation of Injustice and Inequity. The rule appears to be: Eschew ZULM and foster ADL-O-EHSAN. This
approach is amply corroborated by the fact that the first significant thing in the life of Holy Prophet
Muhammad PBUH, while still he was 20 years old, was the convening of Hilf-ul-Fuzul. It was a voluntary
organization by a few committed sons of Macca. The commitment made by a member of this voluntary
association was that each member would be always ready and come forward for the rescue of victims of
high-handedness or tyranny and those who needed succor, support or security.

156. The theme of securing basic human rights and the establishment of justice runs through the entire
fabric of Divine Message. The number of times the commandment to do justice has been mentioned in
the Holy Qur'an is a indication that justice is almost an article of faith for the Muslims. Qur'an is not
content with the use of the term ADL (Justice) alone .but the Holy Scripture, at the same time,
introduces terms like QIST, EHSAN and MEEZAN to give widest possible meanings and connotations to
the concept of justice in Islamic jurisprudence.

157. It is in this background that we have examined the various provisions of prison discipline in the
matters agitated before us. It is not our obligation alone but the Legislature as well as the Executive is
equally bound to erase every such provision which smacks of Zulm. Allah Almighty has at numerous
places in the Holy Qur'an disparaged the element of Zulm. Ayat 279 Sura 2 lays down the principle La
Tazleimoona wa la Tazlamoon i.e. NEITHER DO A WRONG (ZULM) NOR BE WRONGED. Ayat 57 Sura 3
proclaims that Allah does not like the transgressors (Zalemeen) and Ayat 22 Sura 14 conveys a note of
caution to the Believers: A grievous chastisement awaits the wrong doers (Zalemeen). This Court hopes
that necessary steps will be taken by all the Provincial Governments with the active collaboration of the
Secretary Interior. The Secretary Interior and the Provincial Home Secretaries will send a detailed report
on the various issues identified discussed in this segment should also reach the Registrar of this Court by
31-1-2010 whereafter the Court will examine the steps taken by the Federal and Provincial
Governments in this matter. The case will be taken no again in February 2011 for reconsideration and
necessary action.

SEGMENT FIFTEEN

PRISON DISCIPLINE

(ISSUE NO.X)

PART A RIGHTS OF ACCUSED PERSONS/PRISONERS

1546
158. Since this judgment deals with laws relating to prison population so it is meet that the various
categories of rights of an accused or a detenue or a prisoner, as recognized by Constitution, Law,
Precedents and Deen (Religion), are enumerated at one place and in particular this Judgment in order to
appreciate the reason why an elaborate exercise of reviewing the prison discipline has been undertaken
by this Court in the Shariat Petitions. The prison population deserves special attention because every
incarcerated individual, due to the prevalent routine, has to suffer invariably on account of delays
initially, in the completion of police investigation and then disposal of cases before the trial and
appellate court, There have been instances when the appeal was put up at a time when the prisoner had
already served the sentence awarded to him by the trial judge whose judgment he had impugned. The
appeal then becomes infructous. Such a situation is embarrassing for a judge hearing the appeal. It must
be appreciated and realized that prison discipline is an integral part of the administration of justice. The
current prison practice is already torture oriented. The minimum requirement is that every one must be
judged in accordance with law without delay.

159. In this view of the matter the rights of accused guaranteed by a) Constitution and b) other sources
are being enumerated below:-.

A. GUARANTEED BY CONSTITUTION.

i Article 4: To enjoy the protection of law and to be treated in accordance with law;

ii. Article 4(2) (a): No action detrimental to the life, liberty, body, reputation or property of any person
shall be taken except in accordance with law. The life of a prisoner is as sacred as the life of any person
outside the prison compound;

iii. Article 4(2) (b): No person shall be prevented from or be hindered in doing that which is not
prohibited in law;

iv. Article 4(2) (c): No person shall be compelled to do that which the law does not require him to do;

1547
v. Article 9 stipulates that no person shall be deprived of life or liberty save in accordance with law. The
accused/prisoner also has a right of personal safety before, during and after completion of police
investigation and also during the period of imprisonment. Life means a secure life.

vi. Article 10 mandates safeguards as to arrest and detention in its 09 detailed clauses;

vii. Article 11 prohibits all forms of forced labour except compulsory service on account of a punishment
for an offence against any law or on account of public purpose. This however does not mean that
Constitution has disapproved payment of wages for the labour put in by a prisoner;

viii. Article 12 affords protection against retrospective punishment,

ix. Article 13 affords protection against double punishment and self-incrimination;

x. Inviolability of dignity of man is an inalienable right recognized by Article 14 of the Constitution. The
Constitution does not create any exception. The accused or a prisoner has a valuable right to claim
freedom from torture under clause(2) of Article 14 of the Constitution. Torture includes mentally or
physically uncomfortable feelings;

xi. Article 20 guarantees freedom to profess religion;

xii. Equality before law and equal protection of law is another fundamental right guaranteed by Article
25 of the Constitution;

xiii. Article 25 of the Constitution further guarantees that there shall be no discrimination on the basis of

1548
sex alone. Women and children are entitled to better treatment;

xiv. Article 45 of the Constitution confers a right upon a prisoner to apply for grant of pardon, reprieve
and respite, remission, suspension or commutation of sentence passed by any court, tribunal or other
authority. See also section 401 through 402 C of the Code of Criminal Procedure in this regard;

xv. Article. 184 of the Constitution provides a remedy whereby any person (including a prisoner) can
invoke the constitutional jurisdiction of the Supreme Court of Pakistan, when a question of public
importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1
of Part II is involved and the Apex Court shall have power to make an order of the nature mentioned in
the said Article;

xvi. Yet another remedy at provincial level is available to an aggrieved person (including a prisoner)
under Articles 199(1)(a) and 199(1)(b), to invoke the constitutional jurisdiction of a High Court to seek a
declaration or a direction against violation of fundamental right;

xvii. Any citizen of Pakistan (including a prisoner) may, under Article 203-D of the Constitution invoke
the extra-ordinary jurisdiction of the Federal Shariat Court to impugn any law or provision of law as
being repugnant to an Injunctions of Islam and thereby get a declaration that the law or legal provision
under challenge is a bad law and hence not enforceable.

B. REMEDIES AND RIGHTS PROTECTED UNDER LAW.

xviii. Right of the accused to the initial presumption of innocence unless proved guilty.

xix. Right of participation in investigation conducted by police.

1549
xx. To lead evidence and plead innocence before Investigating Officer.

xxi. Right to plead alibi and adduce evidence to that effect.

xxii. To move senior police officers under section 551 of the Code of Criminal Procedure to present his
view point in case the accused is dissatisfied with investigation at the lower level.

xxiii. Freedom from being subjected to threats, promises or influence inducing him to disclose or
withhold any matter within his knowledge as contemplated in section 163 of the Code of Criminal
Procedure.

xxiv. The right of accused of being informed of the cause of his arrest. Reference section 56(1) of the
Code of Criminal Procedure.

xxv. The Magistrate has, under section 63 of the Code of Criminal Procedure, the authority to discharge
a person after he has been taken into custody. This remedy can be availed of in appropriate cases;

xxvi. The right of an accused, arrested by a police officer, to be produced before the Magistrate without
unnecessary delay (not beyond twenty four hours excluding the time necessary for the journey from the
place of arrest to the Court of Magistrate). Reference Section 61 of the Code of Criminal Procedure.

xxvii. An accused may be released by officer in charge of the police station under section 169 of the
Code of Criminal Procedure when the evidence against him in not sufficient.

xxviii. Cancellation of case against an accused person as contemplated by Rule 247 of the Police Rules,
1934.

1550
xxix. The accused has a right to plead innocence at the time the court takes cognizance under section
190 of the Code of Criminal Procedure.

xxx. The accused has a right to seek acquittal from a Magistrate under section 249-A of the Code of
Criminal Procedure at any stage of the case.

xxxi. The accused has a right to seek acquittal from a court under section 265-K of the Code of Criminal
Procedure at any stage of the case.

Reference Farrukh Salim v. The State PLD 1997 Lahore 385

xxxii. The right of participation in the trial. Section 353 of the Code of Criminal Procedure.

xxxiii. The right to retract a confession. Unless corroborated on material particulars it is not prudent to
base a conviction in a criminal case on the strength of a retracted confession alone. Reference The State
through Advocate-General, N.-W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950.

xxxiv. It is the right of an accused that before he is arrested under section 54 of the Code of Criminal
Procedure, the police officer must have reasonable information about his possible involvement. Arrest
without application of mind is illegal. The police officer must be satisfied that, (a) the complaint against
him is reasonable, (b) that the information about his involvement is credible; and (c) there is reasonable
apprehension about his involvement. It is however hoped that the legislature will incorporate an
amendment where-under the person arrested would be immediately informed on the grounds of his
arrest as well as the right of bail as is conceded in section 50 of the Indian Code of Criminal Procedure
1914. Reference is made to Allah Rakhi v. The S.H.O. and others NLR 2000 Cr. 92.

xxxv. The right to plead benefit of Exceptions as enumerated in sections 76 through 106 of the Pakistan

1551
Penal Code.

xxxvi. The right to claim identification parade. Article 22 of the Qanun-e-Shahadat Order, 1984.

xxxvii. Confession of an accused before a police officer cannot be proved. Reference Articles 37, 38 and
39 of Qanun-e-Shahadat, 1984.

C. MISCELLANOUS.

xxxviii. Right of being defended by a counsel of his choice as far as is possible. Reference section 340 of
the Code of Criminal Procedure as well as section 22(3) of the Legal Practitioners and Bar Counsels Act,
1973 read with rules 145 through 158, Chapter XII of the Pakistan Legal Practitioners and Bar Counsel
Rules, 1976 and section 40 of the Prisons Act, 1894. (This is the oldest provision on the subject followed
by Code of Criminal Procedure, 1898).

xxxix. Right of a prisoner to be defended at State expense vide High Court Rules and Orders Volume 3
and Rules 24 of the Federal Shariat Court (Procedure) Rules, 1981 read with Pakistan Bar Counsel Free
Legal Aid Rules 1999 particularly when he is a pauper. See also 2002 YLR 3832.

xxxx. Right of an accused that allegations against him are investigated by an independent agency
established under law. It is also expected that the investigating police officer will not be biased.

xl. That the investigation will be conducted in a transparent manner and the version of accused and his
evidence or evidence in his support will be duly recorded.

xli. Investigation will not be shelved and a report by the incharge police station would be submitted
before the trial court without delay as stipulated in section 173 of the Code of Criminal Procedure.

1552
xlii. The accused also has a right to move the court to seek pre-arrest or post arrest bail under sections
496-498 of the Code of Criminal Procedure.

xliii. The accused may, if the court permits, exercise the option of appearance through counsel as
visualized in section 205 of the Code of Criminal Procedure.

xliv. Freedom that the case of accused shall not be prejudiced at the trial.

xlv. Right to claim benefit from irregularities which vitiate the trial. Section 530 of the Code of Criminal
Procedure.

xlvi. Right to be tried by an independent tribunal.

xlvii. Right to cross-examine witnesses and test their credibility. Articles 133-134 Qanun-e-Shahadat
Order, 1984.

xlviii. Right to make a statement without oath and to explain the material points appearing against him
in prosecution evidence which tend to incriminate him. Section 342 of the Code of Criminal Procedure.
Pieces of incriminating evidence not put to the accused cannot be used against him. PLD 2003 Lah. 217.

xlix. Right to make a statement under oath. Section 340(2) of the Code of Criminal Procedure.

l. Right to lead evidence/recall witnesses. Sections 231, 540 of the Code of Criminal Procedure:

1553
li. Freedom from inducement to disclose or withhold any matter within his knowledge. Section 343 of
the Code of Criminal Procedure.

lii. Right of being heard at the conclusion of the trial.

liii. Right of compounding specified offences. Section 345 of the Code of Criminal Procedure.

liv. Right to be tried under Juvenile Justice System Ordinance, 2000, if he is less than 18 years at the time
of commission of crime.

lv. Right to seek pardon. Section 338 of the Code of Criminal Procedure.

lvi. Right to be heard before the pronouncement of judgment both before the trial court as well as
appellate court.

lvii. Right to demand that conviction against him cannot be recorded/sustained unless the ingredients of
the offence with which he has been charged have been proved beyond reasonable doubt.

lviii. Right to seek transfer of investigation in case of partial attitude of the Investigating Officer.

lix. Right of being charged with specific offence and not vague allegations and that the charge should be
read and explained to him. Section 227 of the Code of Criminal Procedure.

lx. That evidence of his bad character will not be led against him unless he leads evidence of good
conduct. Article 68 Qanun-e-Shahadat.

1554
lxi. Right to confront a witness with his previous statement. Section 162 of the Code of Criminal
Procedure read with Article 140 of the Qanun-e-Shahadat Rules, 1983.

lxii. Right of speedy justice/trial as contemplated by High Court Rules and Order Vol. III. The State V. Sh.
Mumtaz Ahmad and two others 1982 PCr.LJ 1284.

lxiii. Right to seek transfer of cases. Sections 526, 528 of the Code of Criminal Procedure.

lxiv. Right of appeal/revision. Sections 410, 439 of the Code of Criminal Procedure.

lxv. Right of appeal before Supreme Court of Pakistan under Article 185(2)(a)(b)(c)(f) of the Constitution.

lxvii. Benefit of doubt even on one significant point is a judicially accepted right of an accused.

lxviii. Evidence shall be recorded in his presence except as otherwise provided by section 353 Code of
Criminal Procedure.

lxix. The right to demand production of evidence that has be comeavailable because of modern devices
or techniques. Article 164 of the Qanun-e-Shahadat Order 1984.

lxx. Confession of co-accused is no evidence against the accused.

lxxi. And above all Fair Trial is the basic right of an accused, Corpus Juris Secundum Vol. 88 CJS Edn. 1955

1555
page 88.

A "fair trial" to which an accused is entitled must be one where accused's legal rights are safeguarded
and respected, and there must not only be a fair and impartial jury and a learned and upright judge, but
there ought to be an atmosphere of calm, in which the witnesses can deliver their testimony without
fear and intimidation and in which attorneys can asserts accused's rights freely and fully, and in which
the truth may be received and given credence without fear of violence. Garret v. State 193 So, 452, 458,
187 Miss. 441 Reference page 155, Column one Volume 16 Words and Phrases, 1959 Edition.

Reasons for recording rights

160. Interests of justice demanded that the rights and freedoms of prisoners. be enumerated at one
place particularly when the human friendly groups all over the world are highly critical of the manner in
which the American and British armed forces are treating prisoners (invariably Muslim by faith) from
Iraq and Afghanistan. It is also in our mind that the contempory standard of judging and assessing a
society/State is the respect and commitment it shows towards human rights. Civilized societies are
those which respect and honour human freedoms/rights. This is precisely the reason why prison
discipline in the West has undergone healthy amendments and legal instruments at the International
level have been ratified to safeguard the rights of incarcerated lot. Quaid-e-Azam Muhammad Ali Jinnah,
father of the nation, was committed to the cause of human freedoms. He advocated forcefully the issue
of human rights, as is evident from the second part of the historic Lahore Resolution of 23 March 1940.
The citizenry and the Government of Pakistan is therefore committed to the cause of human rights.
Islam enjoins its votaries not only to be conscious of the rights of others but also to adopt an attitude of
compassion for others even though some of them have transgressed. Allah commanded the Holy
Prophet (p.b.u.h.) to forgive and forbear (even) those who wanted to turn him into a disbeliever (Ayat
109 Sura 2). At another place (Ayat 134 Sura 3) it is ordained that excellent reward awaits those who
overlook the faults of others (knowing that Allah loves these who forgive and are benevolent) and those
who, when they commit indecency call Allah to mind and implore forgiveness for their sins and who do
not persist knowingly in that of which they have been guilty. The Holy Qur'an proceeds further to
prescribe a supplication for the believers (Ayat 119 Sura 23): Pray: Lord, forgive and have mercy (on us),
for You alone are the best of those who show mercy. We may recall the incident of Sawama Ibn Asal of
Yamama when he was brought before the Holy Prophet (p.b.u.h.) as a prisoner and was released
without any pecuniary penalty on the third day whereafter he accepted Islam. (Reported by Bukhari,
Muslim and Mishkat).

1556
161. However the report about the living conditions of prison population as indicated in the case of
Majeeda Bibi, PLJ 1995 Kar. 1, referred to above, illustrates the point that considerable efforts are
required to improve the existing system and prevailing conditions. In fact a duty is cast to review the
existing prison discipline for the reason that Holy Qur'an exhorts the believers to enjoin what is right and
forbid what is wrong. This social obligation has to assume the form of legislation at human level when
the law making institutions make laws in the field of human affairs by forbidding what is harmful for
society. Ayat 110 Sura 3 enjoins:---

"You are the best of nations

Raised up for (the benefit of)

Humanity: You enjoin what is

Right and forbid what is

Wrong and believe in Allah."

This principle is repeated in Ayat 113 of this very Sura as well as Ayat 157 Sura 7, Ayat 67, 71 and 112
Sura 9 of Holy Qur'an. The Prison Discipline is certainly a subject within cognizance of the parliament
and consequently within the ambit of Federal Shariat Court which is bound to uphold the principle of
beneficial legislation as ordained by various Ayat of Holy Qur'an.

A Hadees of Holy Prophet (p.b.u.h.) may also be noted:

That is the best of men who disliketh power. Beware! Ye are all guardians; and ye will be asked about
your subjects; then the leader is the guardian of the subject, and he will be asked respecting the subject;
and a man is a shepherd to his own family, and will be asked how they behaved, and his conduct to
them; and a wife is guardian to her husband's house and children, and will be interrogated about them;
and a slave is a shepherd to his master's property, and will be asked about it, whether he took good care
of it or not.

SEGMENT SIXTEEN

1557
 PART "C"

JAIL ROITS

(Supplementary Issue No.J)

162. Wild outbursts and untoward incidents are not uncommon in prison life. Sometimes planned
crimes like hostage taking incidents are also committed by a section of prison population. There is a long
history of prison disturbances in South Asia in particular and the world over in general. It is not possible
to identify one particular reason why unpleasant situations develop in prison houses as there are a
number of factors that influence the inmates of penal complexes. Every mutinous incident in the
penitentiary is followed by an official enquiry which usually locates not only the causes of lawlessness
but also identifies areas that need curative touch in view of the facts and circumstances of each
particular event. One such incident took place on 25th July, 2003 in District Jail Sialkot when five
hardened criminals took nine Civil Judges/Judicial Magistrates as hostages along with four of their
subordinate staff besides one Medical Officer and three Assistant Superintendent Jails in -the female
ward of the prison house. During the rescue operation three Civil Judges lost their life and the five
desperados were also killed during the encounter. Two Civil Judges, four jail officers and one female
prisoner received injuries and one of the seriously injured Civil Judge expired on 31.07.2003 in the
hospital a week after the bloody incident.

163. Ch. Abdul Sattar Aajiz, D.I.-G. (Inspection), Inspectorate of Prisons was the Inquiry officer to
conduct departmental enquiry. The terms of reference were as follows:---

(a) to probe into the circumstances under which weapons were got smuggled into the jail and'
could not be detected during searches;

(b) to pin point security lapses because of which judges were taken hostage; and

(c) to recommend measures to avoid reoccurrence of such incidents in future;

1558
164. As a result of the enquiry certain recommendation including strict implementation of existing rules,
increasing strength of warders, construction of new jails to avoid consequences of over population in
prison houses, supply of electronic security devices and improvement in training facilities of prison staff
were made by the Enquiry Officer. Three recommendations deserve attention for our purpose: firstly
the construction of additional prison houses, secondly installation of electronic security devices and
thirdly implementation of rules without discrimination. Recurrence of Jail riots is an indicator of abject
mismanagement. The causes for the jail riots can be attributed to the following factors:--

a. Most of the Jails of the Province are over-crowded.

b. Due to over crowding the prisoners experience additional hardship in the already prevailing
stark conditions.

c. The un-hygienic atmosphere causes epidemic diseases which situation irritates the entire
population.

d. Meager allocation of funds slows down development programme with the result that the
maintenance of wash rooms suffers invariably. Dirty wash rooms are sources of constant
annoyance for the prisoners.

e. Adjournment of cases by the trial Courts cause frustration among the prisoners. The anger is
expressed against the available prisons staff.

f. Delay in disposal of cases as well as resentment due to rejection of bail application by trial
Court/appellate Court is reflected by recalcitrant reaction.

g. Shortage of staff as compared to the inflated number of prisoners at the time of emergency
makes the Jail administration helpless or weak to control the unruly prisoners.

1559
h. According to Jail authorities the abolition of the punishment chapter No.27 of Pakistan Prison
Rules with no adequate alternate keeps on inducing the mischief mongers to ignite temper.

i. According to Jail authorities the NGO's, Media and the civil rights activist encourage the prison
population to adopt extreme measures against Jail administration.

j. Non availability of modern security equipments and insufficient arms and ammunition
including Rubber Bullet Guns, Tear Gas Guns, Color and Pressure water throwing equipments,
Scanners, Metal detectors, close circuit TV's along with cameras, walk through gates, wireless
base station along with wireless sets and walki talki sets.

k. Meager Dietary allowance for prisoners.

l. Inadequate arrangements for the production of prisoners before trial courts due to lack of
police escort.

m. Frustration caused by long delays in deciding cases at the trial and appellate stage.

n. Harsh and exploitative attitude of prison staff.

o. Paucity of medical facilities and necessary medicines and emergency treatment,

p. Brake-down of electricity and gas supply.

1560
 q. Easy availability of cell phones inside the Jail.

r. The gradual decline in various chapters of our national life with consequential drug and
Kalashinkov culture as well as abductions for ransom has made human existence insecure. The
factual position prevailing in our prisons is that there is no emotional relief provided to prison
population. The prisoners can have cathartic experience through Plays and other Cultural,
activities. Better results can be expected if tension is reduced by providing various avenues of
mental occupation other than uncompensated hard labour. We must aim at creating paradigms
of excellence in the domain of service to humanity in general and assistance to the
disadvantaged sections of society in particular.

s. The prisoner is virtually a pawn in the hands of his captor.

165. However, the latest medical report about the prison population is revealing.s According to this
report, published in daily Dawn, Sunday Issue of June 28, 2009 at page 13, Column No.2 and 3, a team of
medical men from the Mayo and Jinnah Hospitals of Lahore, undertook a screening of prisoners the
Central Jail Kot Lakhput and the Camp Jail under the orders of Chief Justice of Pakistan. Clinical analysis
of the blood samples of 1,756 prisoners revealed the following results:---

"HIV Positive 36
Hepatitis "C" 236
Hepatitis "B" 112

The HIV virus, according to the report, was transmitted to the local prisoners from foreign
inmates. Another test conducted on a group of 3590 prisoners from the Central Jail Kot Lakhput
showed the following results:---

"HIV Positive 18
Hepatitis "C" 40
Hepatitis "B" 16

1561
The report described these results as alarming".

SEGMENT SEVENTEEN

JURISDICTIONAL ASPECTS

(ISSUE NO.X)

We propose dilating upon three topics in this segment namely:

A. The Guiding Principles.

B. The Interpretative Feature

C. Legal Literature.

PART A THE GUIDING PRINCIPLES

166. The Guiding Principles. The sacred texts contain certain Permanent Values which for convenience
sake, are being termed as. Guiding Principles. These principles/values are covered by the scope of the
term Injunctions of Islam for the simple reason that values are essential and fundamental for the
maintenance and preservation of a progressive egalitarian society according to the Divine Scheme given
in the Holy Qur'an. The Federal Shariat Court, under Article 203D of the Constitution of Pakistan, is
required to examine laws on the touch stone of Injunctions of Islam, as laid down in the Holy Qur'an and
Sunnah of the Holy Prophet (p.b.u.h.). An effort has been made to collate guiding principles from the
text of Holy Qur'an at the first stage. This is however not an exhaustive list as the principles laid down in
the Sunnah have not been included for the present.

1562
167. Amendment in certain provision of prison discipline have been suggested by petitioners in different
petitions namely Shariat Miscellaneous Application No.21/I of 1995 and others. It is indeed a healthy
exercise to examine and analyze provisions of existing laws and to propose amendments with the clear
objective of removing hurdles and thereby making things easy for the people. This is the acknowledged
method of development of law. Laws are made for the betterment of human beings. Hardships and
difficulties faced by people have occasioned changes in law. Though this process of change is the
domain of legislature alone yet the power to examine existing laws on the touchstone of Injunctions of
Islam has been exclusively conferred upon Federal Shariat Court under Article 203-D of the Constitution.
A reference to clauses (2) and (3) of Article 203-D would be useful:---

(2) "If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam,
it shall set out in its decision.--

(a) the reasons for its holding that opinion; and

(b) the extent to which such law or provision is so repugnant and specify the day on which the
decision shall take effect.

(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of
Islam,--

(a) the President in the case of a law-with respect to a matter in the Federal Legislative List or
the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not
enumerated in either of those lists, shall take steps to amend the law so as to bring such law or
provision into conformity with the Injunctions of Islam; and

(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have
effect on the day on which the decision of the Court takes effect.

1563
This shows that any custom, law or provision of law, existing on the statute book of Pakistan, can be
reviewed by the Federal Shariat Court. This mode of effecting changes in laws has been recognized by
the Constitution of Pakistan.

168. However, we are not unmindful of the fact that the laws are framed according to a procedure
ordained in the Constitution which power cannot be usurped by this Court. The question of
amendments suggested in the various petitions or to put it differently, as to what the law ought to be
according to public perspective, is basically a question which is outside the jurisdiction of this Court.

169. The Constitution has very clearly identified the role of separate institutions in relation to the
making, the evolution and interpretation of laws. The Parliament/Provincial Assemblies (which includes
the President of Pakistan and Provincial Governors) frame legal instruments, the Council of Islamic
Ideology, on being asked, gives advice or makes recommendation for legislative bodies and the Federal
Shariat Court examines the validity or otherwise of existing laws and customs on the touchstone of
Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah and the Superior Judiciary
interprets the legal instruments.

170. In this respect it would be useful to mention at this stage that. the Guiding Principles and the
Permanent Values enshrined in the Holy Book and the Sunnah of the Holy Prophet (p.b.u.h.), in
particular the Sermons of the Holy Prophet (p.b.u.h.) including the sermon of Hujjat-ul-Wida, delivered
on 9th Zil Haj 10th Year of Hijrah corresponding to March 632 AD, in Arafaat wherein the entire
humanity was addressed, are very much covered by the meaning and scope of the term Injunctions of
Islam. These principles may be described as basic human rights/ freedoms. The Courts must therefore
always keep these principles in view while examining any law or any provision of law challenged before
it. These tenets are part of the sacred text and are amply covered by the meaning and scope of the term
Injunctions of Islam. These principles, (the Permanent Values or Guiding Principles) might as well be kept
in view by the legislators at the time legislation in matters dealing with MUAMLAAT i.e., human
transactions, is on their agenda. These injunctions have been identified in this judgment because,
according to Article 227 of the Constitution, no law shall be enacted which is repugnant to the
Injunctions of Islam. Since fresh legislation in the field of prison discipline has to be undertaken so it was
deemed necessary to advert to the scope of the term Injunctions of Islam as well.

1564
171. We have identified certain problems affecting the prison discipline and made proposals for
consideration of the Government and legislative bodies. We have done it as part of our duty because
Sura 103 Al-Asr proclaims:---

"Consider the time!

The human being,

Most surely is in loss,

Except those

Who believe and do good

And enjoin on each other

What is correct

And enjoin upon each other

Patience (perseverance).

The suggestions and solutions mentioned in this judgment should be taken in the spirit contemplated by
Ayaat 1-3 of Sura 103.

172. In order to fully appreciate the meaning and scope of the term Injunctions of Islam, it would be
advisable at this stage to refer to some of the Guiding Principles/Permanent Values stated in the Holy
Qur'an because the existing laws, or laws to be made in future, have to conform with Injunctions of
Islam as per mandate of Article 227 of the Constitution of Pakistan. These guiding principles are also
suggestive of a relationship between the Hukm and Hikmat. However some of these principles can also
be termed as the Objectives of Shariah i.e., Magaside-Shariah. The purpose of revealing the Injunction
was in fact preservation of certain values, freedoms or right which are essential for maintenance of
balance i.e. Justice. Justice secures peace and peace becomes basis of development and smooth
evolution and development augurs an egalitarian society. Detailed below are some of the guiding
principles/permanent values. The Ayat and Sura of the Holy Qur'an have been indicated at the end of
every principle.

1565
(i) Preservation of human life: This right is however subject to the right of retribution in the field
of administration of justice: Ayat 178 Sura 2, Ayat 5 Sura 32 and Ayat 151 Sura 6.

(ii) Preservation of property: Ayat 188 Sura 2; Ayat 11 and 29 Sura 4;

(iii) Conservation of progeny; Ayat 151 Sura 6; Ayat 205, 233 Sura 2; Ayat 205 Sura 2.

(iv) Freedom from human bondage: Ayat 79 Sura 3.

(v) Equality without Gender Discriminatin: Ayat 1 Sura 4; Ayat 35 Sura 33; Ayat 195 Sura 3, and
Ayat 13 Sura 49;

(vi) Right of Protest, Representation/Appeal is an accepted remedy which is available in Islamic

Jurisprudence: Ayat 148 Sura 4; Ayat 1 Sura 58.

(vii) The right of reputation: Ayat 148 Sura 4 as well as Ayaat 11-12 of Sura 49;

(viii) Sanctity of Covenants at Domestic and International level: Ayat 177 Sura 2; Ayat 34 of Sura
17;

(ix) Maintenance of Balance in the social set-up: Ayat 35 Sura 17 and Ayat 152 Sura 6;

(x) Right to Sustenance: Ayat 152 Sura 6; Ayat 6 Sura 11 as well as Ayat 31 of Sura 17. Every

1566
individual is under obligation to support himself and his dependents but if he has no means,
sustenance is guaranteed for him and his progeny by State or society.

(xi) Justice must be tampered with Mercy: Ayat 90 Sura 16;

(xii) Justice to prevail even though the opposite party is an enemy. Holy Qur'an mandates that
believers must up hold Justice even though it is against their own interest. Ayat 135 Sura 4 and
Ayat 8 of Sura 5:

(xiii) Justice is an absolute value. It cannot be circumscribed by conditionalities: Ayat 153 Sura 6;
Ayat 29 of Sura 7 and Ayat 135 of Sura 4.

(xiv) Preservation of Human Dignity. Human Dignity is guaranteed as an inborn value as is

evident from Ayat 70.Sura 17.

(xv) Right to chastity: Ayaat 2 and 4 of Sura 24; Ayat 23 Sura 12; Ayat 12 Sura 66;

(xvi) No one shall be held responsible for the evil doing of another: Ayat 79 Sura 12;

(xvii) Right to remuneration: Ayat 70 Sura 39 and Ayat 39 Sura 53;

(xviii) Human liberty: Ayat 157 Sura 7 of Holy Qur'an;

(xix) Unity of human race: Ayat 213 Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10;

1567
(xx) Freedom from oppression (compulsion): Ayat 256 of Sura 2 and Ayat 99 of Sura 10.

(xxi) Freedom of choice: Ayat 29 -Sura 18

(xxii) Preservation of places of worship of different religions: Ayat 115 Sura 2; Ayat 40 Sura 22;

(xxiii) Knowledge is a permanent value: Ayaat 31-33 of

(xxiv) Sura 2 and Ayaat 3-5 of Sura 96; read with various traditions referred to in this judgment
as well wherein the seeker of knowledge is assured respect and assistance.

(xxv) Merit must prevail: Ayat 58 of Sura 4, Ayat 19 Sura 46 and Ayat 13 of Sura 49.

(xxvi) The bounties of Allah are a free gift for the entire creation' Reference Ayat 20 of Sura 17;

(xxvii) Freedom of conscience (Religion): Ayat 256 Sura 2, Ayat 6 Sura 9, Ayat 99 Sura 10, Ayat
125 of Sura 16 and Ayat 29 of Sura 18;

(xxviii) Right to raise family: Ayaat 3-17 of Sura 4.

(xxix) Presumption of innocence: Ayaat 12-16 of Sura 24.

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(xxx) Freedom from exploitation: Ayat 70 Sura 39 and Ayat 39 Sura 53;

(xxxi) Human friendly system stays on the earth and has the capacity to turn fears and
apprehensions into harmony, peace, amity and goodwill. Ayat 17 Sura 13;

(xxxii) Equality before law: Ayaat 48,123, 286 of Sura 2 as well as Ayat 15 Sura 10;

(xxxiii) Every one is accountable for his deed: Ayat 202 Sura 2.

(xxxiv) Human affairs are decided by mutual consultation: Ayat 38 Sura 42 and Ayat 159 of Sura
3;

(xxxv) Maintenance of Rule of Law is the primary obligation of Islamic polity: Ayat 25 of Sura 57.
Qur'an refers to three things: Book, Balance and Iron in this verse. The object of the three gifts
is:, People may stand forth in Justice. These three things symbolize a) the Revelation wherein
are contained injunctions which command good and forbid evil, b) Balance" i.e., Justice by which
individuals get their due and c) Iron stands for the strong arm of law implemented through
judicial organ of the State.

(xxxvi) Conquest of Universe is human destiny: Ayat 20 Sura 31, Ayat 65 of Sura 22, Ayaat 12-13
of Sura 45, Ayaat 79-80 of Sura 40, Ayaat 32-34 of Sura 14.

(xxxvii) There is no fault in God's creation. Ayat 3 Sura 67; Human being have been created in
the best of moulds. It is therefore essential to preserve the creation so that Divine purposes of
creation could be achieved. Ayaat 4-6 of Sura 95;

(xxxviii) Ease follows hardship: Ayaat 5 and 6 of Sura 94;

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(xxxix) Allah does not lay a responsibility on any one beyond his/her capacity. Secondly. No one
shall bear the burden of another person. Every one is bound to bear the consequences of what
he/she has earned. In other words no mite shall be held responsible for another person: Ayat
286 Sura 2; Ayat 42 of Sura 7; Ayat 62 of Sura 23 and Ayat 24 Sura 3;

(xl) Labour shall not go waste. It must be compensated. Ayat 70 Sura 39. Every one has to be
paid in full for what he has done. See also Ayat 39 Sura 53;

(xli) Supremacy of Rule of law: Ayaat 44, 45 and 47 of Sura 5; This is however not an exhaustive
list.

(xlii) Right to Notice and Explanation before pronouncement of verdict: Ayat 12 Sura 7; Ayaat 32
through 38 Sura 15 and Ayat 61 Sura 17; and

(xliii) Lastly, though in fact the primary principle of Islamic Jurisprudence is the belief that
Sovereignty over the entire Universe vests in. Allah Almighty alone: Ayat 54 Sura 7, Ayat 40 Sura
12, Ayat 83 Sura 36 and

(xliv) While concluding, for the present, discussion on the guiding principles it will be instructive
to refer to Ayat 177 of Chapter 2 which is like a Manifesto for the believers. The translation of
the text is as follows:---

"It is not righteousness

That ye turn your faces

Towards East or West;

But it is righteousness-

1570
To believe in God

And the Last Day,

And the Angels,

And the Book,

And the Messengers;

To spend of your substance,

Out of love for Him,

For your kin,

For orphans,

For the needy,

For the wayfarer,

For those who ask,

And for the ransoming the Captives (prisoners)

To be steadfast in prayer,

And practice regular charity;

To fulfil the contracts

Which ye have made

And to be firm and patient, In pain (or suffering)

And adversity,

And throughout

All periods of panic.

Such are the people

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 Of truth, the God-fearing."

The importance of these values lies in the fact that they occur in the Holy Text. These principles were
established by Allah in His own Wisdom. These are absolute and inviolable truths made available to
human beings as a Divine gift with the object of evolving balanced societies on this earth. These verities
were not known to the denizens of this earth. It is therefore, our bounden duty to up-hold these
principles and thereby strengthen relationship with the ever Beneficent and Merciful creator on the one
hand and build health relationship among the human beings.

We should not loose sight of the basic principle of our faith that Divine Guidance, in the form of
Revealed Text and the Sunnah of the Holy Prophet (p.b.u.h.), is the greatest of the varied and continuing
blessings given unto human beings on this earth by the creator. These guiding principles/permanent
values constitute a veritable mine of knowledge, understanding, wisdom and insight in mundane affairs.

The Holy Prophet (p.b.u.h.) had been deputed to enjoin what is good and to forbid the doing of evil. This
is now the sacred legacy of the Holy Prophet (p.b.u.h.). It is now a Farz-e-Kifayah. The Holy Qur'an
proclaims:--

"And from among you there

should be a party who

invite (people or men in

authority) to do good

and enjoin what is right

and forbid the wrong,

and these it is that shall

be successful.

Ayat 103 Sura 3

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 Ayat 157 Sura 7.

The Federal Shariat Court like the Council of Islamic Ideology is charged with the duty of upholding the
Injunctions of Islam so that the process of Amar bil Maaroof on Nahee anil Munkar is initiated.
Improvement in the administration of justice is a matter fully covered by this principle of Holy Qur'an.

A reference to the historic Khutba of the Holy Prophet (p.b.u.h.) merits Honourable mention of the
conclusion of our discussion on the guiding principles:

The Last Sermon

"O! People, lend me an attentive ear, for I don't know whether, after this year, I shall ever be
amongst you' again. Therefore, listen to what I am saying to you carefully and take these words
to those who could not be present here today.

"O! People, just as you regard this month, this day, this city as sacred, so regard the life and
property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful
owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet your
Lord, and that He will indeed reckon your deeds. The Riba transaction of yore are hereby
'forbidden.

Beware of Statan for safety of your religion. He has lost all hope that he will ever be able
to lead you astray in big things, so beware of following Satan in small things.

O ! People, it is true that you have certain rights with regard to your women, but they also
have right over you. If they abide by your right then to them belongs the right to be fed
and clothed in kindness. Do treat your women well and be kind to them for they are your
partners and committed helpers. And it is your right that they neither make friends with
any one of whom you do not approve, nor commit adultery.

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 O ! People, listen to me in earnest, worship Allah, offer prayers five times a day and
observe fast during the month of Ramadhan, and give your wealth in Zakat. Perform Hajj if
you can afford to. You know that every Muslim is the brother of another Muslim. You are
all equal. Nobody has superiority over other except by piety and good action.

Remember, one day you will appear before Allah and answer for your deeds. So, beware!
ado not astray from the path of righteousness after I am gone.

O! People, no Prophet or Apostle will come after me and no new faith will be born. Reason
well, therefore, O! People, and understand my words which I convey to you. I leave
behind me two things, the Qur'an and my example the Sunnah; and if you stick to both
you will never go astray.

All those who listen to me shall pass on my words to others and those to others again; and
may the last ones understand my words better than those who listen to me directly. Be
my witness, Oh Allah, that I have conveyed your Message to Your people."

It may be observed here that the analysis of Asbab-e-Nazool (causes of revelation) of a given
Injunction may at times be helpful in order to ascertain a) the relationship between Hukm (the
Injunction) and Hikmat (reason behind the Injunction) and b) the scope of the Injunction sought
to be interpreted or applied to a given contemporary situation. However if the Asbab-e-Nazool
cannot be determined the object before a Judge, a legislative body or an Administrator should be
the Magasad-e-Shariah because most of the permanent values are in fact the objectives of law.

PART B -- THE INTERPRETATIVE FEATURE

173. After scanning through a number of Shariat Petitions moved in this Court, it has been
observed that petitioners come out with proposals either to make fresh law in some uncovered
field or they propose changes in existing legislative instruments to bring it in tune with the spirit

1574
of Islamic teachings as they understand it. It should be by now clear that the power, jurisdiction
and function of the Federal Shariat Court under Article 203-D of the Constitution of Islamic
Republic of Pakistan is to "examine and decide the question whether or not any law or provision
of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the
Holy Prophet, hereinafter referred, to as Injunctions of Islam." The duty "to make
recommendations as to the measures for bringing existing laws into conformity with the
Injunctions of Islam and the stages by which such measures should be brought into effect;" or "to
compile in suitable forms, for the guidance of Majlis-e-Shoora (Parliament) and Provincial
Assemblies, such Injunctions of Islam as can be given legislative effect" vests exclusively in the
Council of Islamic Ideology as contemplated by Article 230 of the Constitution of Pakistan. The
other institution, which has the exclusive jurisdiction to enact laws in the uncovered field and to
introduce amendments in existing laws in accordance with the spirit of Islamic teachings or
injunctions, is of course the Parliament/Provincial Assemblies as mandated by the Constitution of
Pakistan.

174. The Constitution, however, does not empower the Federal Shariat Court to initiatie legislation
in conformity with the spirit of Islam. The Court cannot travel beyond its prescribed jurisdiction in
view of the age-old maxim Actus Judicarious coram non judice irritus habetur de ministeriali autem a
quocnnque provenit return esto = A judicial act without authority is void; not so a ministerial act.
Legislation is the function of the Parliament.

175. Article 227(1) of the Constitution lays down that no law shall be enacted which is repugnant
to the Injunctions of Islam and the authority to bring the existing laws in conformity with the
Injunctions of Islam as laid down in the Holy Qur'an and Sunnah has been assigned to the
legislative bodies and making of recommendations and tendering advice to legislative bodies on
requisition is the exclusive preserve of the Council of Islamic Ideology. However we cannot loose
sight of the fact that whenever a jurisdiction is conferred upon a court or authority to do a certain
thing, it is presumed that the. power to do all those things without which the main jurisdiction
cannot be exercised is also given. This is what the old Latin legal Maxim means: Cul Jurisdiction
data est, ea quoque concessa csse videnture, sine quibus jurisdictio explcari non potest.

176. The Court is well within its rights to interpret or redefine the undefined words and terms
contained in a provision of law and to suggest ways and means of giving effect to its declaration
of repugnancy.

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It may not be possible for the Federal Shariat Court to initiate or undertake legislation but guidelines for
better administration of justice and beneficial legislation can be given at this forum. Reliance may be
placed on the case of R.S.N. Co: Ltd V. Commissioner, Chitagong Port reported as PLD 1961 Dacca 412
wherein the Division Bench of the Dacca High Court found support from the well-known legal maxim.

Boni Judicis est Ampliare Jurisdictionem: It is the duty of a judge to extend his jurisdiction).

Broom's Legal Maxims: 10th Edition, Chapter III Page 44

177. In this view of the matter our basic obligation in these Shariat Petitions and Miscellaneous
Applications was to examine whether the impugned law or provision of the law was repugnant to any of
the Injunctions of Islam which term also includes the Permanent Values and Guiding Principles
enshrined in the Holy text. However, the Federal Shariat Court, without declaring any law to be
repugnant to Injunctions of Islam, might as well expresses its opinion on any legal provision or may even
approve certain suggestions in the larger interest of justice, fair play and preservation of human rights in
the light of Islamic teachings as is clear from Ayaat 1-3 of Sura 103 referred to above. Such an opinion
will, however be deemed to be obiter dictum. It will be received by the legislature or Executive as
judicial opinion of the Federal Shariat Court in the light of Islamic teachings and in that capacity the
obiter will have persuasive value for the relevant authorities which are engrossed in the task of re-
drafting the Prison Discipline on the basis of experience gained by the Prison Department and also in the
light of various recommendations made by different Committees, Commission and Review Boards over
the years at domestic level and the legal documents framed at International level.

178. In so far as the powers, jurisdiction and functions of the Federal Shariat Court as envisaged by
Article 203 D of the Constitution of the Islamic Republic of Pakistan are concerned, the Federal Shariat
Court has been charged with the duty of examining and deciding "question whether or not any law or
provision of law is repugnant to the injunctions of Islam". These injunctions, according to Article 203D
are only those injunctions which are contained in the "Holy Qur'an, and Sunnah of the Holy Prophet
(p.b.u.h.)". The scope of the term Injunctions of Islam as used in Article 203D is therefore restrictive in
the sense that the scope of the word Sunnah has been limited to the Sunnah of the Holy Prophet
(p.b.u.h.) alone whereas the scope of the term "Injunctions of Islam" as used in Article 227 is
comparatively wide because the term used there is Sunnah simplicitor.

1576
179. In this view of the matter we restricted the examination of the impugned laws to the prescribed
touchstone and the resultant declaration of legality or otherwise of the various provisions of law was
given strictly on the touchstone of (a) a Nass of Holy Qur'an or (b) a Nass from the Sunnah of the Holy
Prophet (p.b.u.h.): The Sunnah of the Holy Prophet (p.b.u.h.) can be either Qauli, Failee or Taqriri.
However if a law or a provision of law takes away or abridges a basic right of a human being, without
reasonable cause, and thereby causes injury to an individual it can be struck down on the principle
established in Ayat 31 Sura 17 of Holy Qur'an: "And do not kill any one whom Allah has forbidden except
for a just cause ………". Man made law shall be deemed to be violative of Divine Decree if without
assigning any reasonable cause it curtails the recognized rights of human beings or it gives unbridled
powers to a mundane authority to exercise it against the interests of people. The ultimate authority
vests in Allah Almighty alone which authority cannot be challenged.

180. Shariat Miscellaneous Application No.21/I of 1995 also seeks a general survey of laws relating to
imprisonment. Roving enquiry into the rightfulness of legal instruments is not the function of this Court.
The point of reference is the Injunction of Islam and not what a person feels. Reference in this matter
may also be made to the case of House Building Finance Corporation v. Rana Muhammad Sharif and 4
others reported as PLD 2000 SC 760 at page 765 wherein the Court was pleased to observe:---

"It is painful to note that flagrant violation of law was allowed to be committed and perpetuated
for all these years which manifests attitude of the people at the helm of affairs of Islamic values
and their commitment to enforce Shariah. Such an attitude will have to be curbed if
enforcement of Shariah is to be made a living reality. The concerned quarters will have to exhibit
necessary vigilance to check and eliminate such flagrant violation of laws. The Shariat Appellate
Bench of the Supreme Court of Pakistan can only examine the relevant law in the light of the
Holy Qur'an and Sunnah".

181. Consequently Shariat Miscellaneous Application No.21/I of 1995 is hereby dismissed on account of
vagueness and ambiguity of the contents of the said application. However this application made a
reference to sections 382-B and 401 of the Code of Criminal Procedure which aspect has already been
considered in this judgment.

PART C LEGAL LITERATURE

(ISSUE NO.X)

1577
182. The first notable step in British India, to amend and consolidate laws relating to prisons was taken
with the passage of the Prison Act, No.IX of 1894 when it was thought "expedient to amend the law
relating to prisons," as per Preamble of the said Act. This was a welcome measure because the Penal
Code had already come into force on 6th October 1860 and a uniform legal code was needed to regulate
the affairs of prison population. Over a period of time various enactments were enforced for the
management of prisons. Commissions and Committee were appointed after the establishment of
Pakistan to improve the prison discipline. The consensus rules were ultimately adopted in 19'78 which
are known as Pakistan Prison Rules, 1978.

183. The legal literature in the form of books available in the market on Prisons Laws is neither upto
date nor free from typing blunders. In order, therefore, to ascertain and find out the correct version of
prison legislation we sought assistance of the Inspector General of Prisons, Punjab, to secure an
amended upto date and duly corrected version of Pakistan Prison Rules. In this process we procured a
comparatively authentic book on Prisons Code (Jail Manual) authored jointly by Dr. Abdul Majeed
Aulakh, Retired Principal and Muhammad Masood Khan, Principal CJSTI, 2008 Edition published by
Kausar Brothers, Lahore. This Manual was then sent to the Inspector General of Prisons with a desire
that amendments, if any, made in the Rules after the publication of this book may also be incorporated
and returned to us along with a short history of amended Rules. We received a reply from the Inspector
General of Prisons, Punjab vide memo. No.Legal/FSC/2008/20963 dated 28th May, 2008 on the subject
Pakistan Prison Code. The said letter is being reproduced as under:---

"Kindly refer to your letter No.F.1 (Addl)/2008-FSC-Lhr dated 24-5-2008 on the subject noted
above.

(1) It is submitted that subject Pakistan Prisons Code (Jail Manual) has been perused at length. It
has been observed that the name/title of the said book i.e. Pakistan Prisons Code (Jail Manual) is
not classified/approved by the Federal/Provincial Government.

(2) Brief history of the prisons rules is that a Jail Reforms Conference was held in Islamabad in
August 1972, under the Chairmanship of Mr. Mahmud Ali the then Minister of State for National
Affairs, Overseas Pakistanis and Prisons, Government of Pakistan. It was resolved in that
conference that in order to achieve uniformity of discipline and administration in Pakistan Jails a

1578
 common Jail Manual be evolved for implementation in all the Provinces. As a result thereof, Mr.
Nazir Ahmad Akhtar, the then Inspector General of Prison Punjab, was entrusted with the task
of compilation of common Jail Manual in accordance with the recommendations of the Reforms
Conference, vide Joint Secretary to Government of Pakistan, National Affairs, Overseas
Pakistanis and Prisons Division, Islamabad vide letter No.PW/4/72, dated 19-8-1972.

(3) That Mr. Nazir Ahmad Akhtar, the then I.-G. Prisons Punjab after a strenuous and laborious
work of more than a year evolved a common Jail Manual for the Provinces. This common Jail
Manual was duly discussed in the frequent meetings of Inspectors General of Prisons/Directors
of Prisons of all the Provinces and after discussions and arguments certain modifications were
included. The final draft was approved for publication by the Federal Government. As Prisons
was the Provincial subject the Federal Government in a meeting of the Inspectors General of
Prisons/Directors of Prisons of all the Provinces held on 12-4-1976 advised that the Provincial
Governments should adopt the draft Manual as far as possible keeping in view their own special
conditions and also keeping in mind the fact that there should be uniform treatment of
prisoners in all the jails of the Provinces. A difference of treatment of prisoners in one Province
affected law and order in the jails in other Provinces and such difference, if any, should be
reduced to a minimum.

(4) That the common Jail Manual is actually the Pakistan Prison Rules for the superintendence
and management of the Prison. These Prison Rules have been approved by the Provincial
Government, vide Home Department Memo No.Prs.1(M)15/72; dated 6-1-1977 and. the Jail
Manual, 1955 was superseded by the Pakistan Prisons Rules, 1978 vide Home Department letter
No. Prs-1(M)15/72 dated 1-10-1978.

() It is further submitted .that under section 59 of the Prisons Act, 1894 (XI of 1894) the
Provincial Government of the each Province has a prerogative to make amendments in the
Pakistan Prisons Rules, 1978 from time to time. Moreover, the book in hand by Dr. Abdul
Majeed Aulakh, (Rtd.) Principal Central Jail, Staff Training Institute Lahore is almost upto date
except Rule 545-A, which has recently been inserted in the Pakistan Prisons Rules, 1978 to the
extent of the Province of Punjab for the performance of Conjugal Rights to those convicted
prisoners who's terms of sentence exceeding 05 years".

It is on the basis of this duly corrected Jail Manual and constant touch with library of Federal Law

1579
Ministry that we have been able to examine the current Prison Discipline. Some mechanism should be
evolved to ensure supply of correct version of laws to the Courts, pile legal community and the litigants
as all of them are handicapped without books containing up to-date correct substance of the law.

SEGMENT EIGHTEEN

OFFENCES AND PUNISHMENTS

(SUO MOTU)

184. We took up on our motion the issue of Prison Offences and the Penalties provided for the Prison
Offence. Chapter 23 of the Prison Rules deals with Offences and Penalties. A bare perusal of some of
these rules show that they are not only harsh in nature but are also humiliating and hence violative of
the principle of human dignity espoused by Islamic tenets. We are given to understand that proposals
for necessary amendments have been initiated but there is no progress in this respect so far. We are not
sure by when the proposed amendments will be incorporated in the Jail Manual after necessary
approval. We were not asked by representatives of Federal or Provincial Government to await the result
of any amendments that might as well be under consideration of the Government. In this view of the
matter we are proceeding' with examination of objectionable provisions contained in Chapter 24. The
said disagreeable provisions are being reproduced as under:

Rule 583: The following punishment provided in section 46 of the Act shall be considered minor:---

Minor Punishments

(6) Cellular confinement for not more than seven days.

Explanation 1. Cellular confinement means such confinement with or without labour as entirely
secludes a prisoner from communication with but not from sight of other prisoners.

1580
(7) Separate confinement for not more than fourteen days.

Explanation. Separate confinement means such confinement with or without labour as secludes
a prisoner from communication with, but not from sight of, other prisoners, and allows him not
less than one hour's exercise daily and to have his meals in association with one or more other
prisoners.

(8) Imposition of handcuffs.

Explanation 1. -- Handcuffs which may be imposed by way of punishment for prison offences
shall be iron handcuffs (swivel with spring-catch handcuffs) weighing not more than one Lb..
each.

Explanation 2. -- Handcuffs may be imposed on the wrists in front by day or by night for a period
of not more than twelve hours at a time, with intervals of not less than twelve hours between
each period and for not more than four consecutive days or nights.

Explanation 3. -- A women or civil prisoner is not liable to the imposition any forms of handcuffs;
and

(9) Imposition of link fetters will be for more than thirty days.

Explanation 1.-- Link fetters shall be composed of a chain and ankle rings. The total weight of
such fetters including the ankle rings shall not exceed (1Kgr. 365 Gr) and the chain shall not be
less than 61 Cm. in length.

Explanation 2.-- A period of at least ten days must elapse after removal of any kind of fetters

1581
 imposed as punishment for a prison offences before these can be re-imposed as a punishment
for another prison offence, whether of the same kind or not.

Explanation 3.-- A women or civil prisoner is not liable to the imposition of any form of fetters.

Major Punishments

Rule 584.-- The following punishments provided in Section 46 of the Prisons Act, 1894, shall be
considered major punishments:-

(3) Cellular confinement for a period exceeding seven days.

Explanation.-- The maximum period for this punishment is fourteen days and an interval of not
less than during the period of confinement must elapse before prisoner is again sentenced to
cellular confinement.

(4) Separate confinement for a period exceeding fourteen days, but not exceeding three months.

Explanation.-- The previous confirmation of the Inspector-General is required when the period
exceeds one month..

(5) Link fetters if imposed for more than 30 days but not exceeding three months.

(6) Bar fetters.

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 Explanation 1.--- Bar fetters shall be composed of two iron bars joined together by a welded link
and attached to ankle rings. The total weight of such fetters including the ankle rings shall not
exceed five lbs. and each bar shall not be less than 50 Cm-8 Mm in length.

Explanation 2.--- The maximum period for which bar fetters may be continuously imposed is
three months.

Note.--- Punishment fetters should be removed when a prisoner wearing the same is to be
produced in Court.

(7) Whipping.

Restriction to whipping

Rule 588.--- (i) The punishment of whipping shall be reserved for serious offences Islamic Hudood and, if
inflicted, shall be severe enough to act as a real deterrent. The total number of stripes shall never be less
than fifteen. In case the Medical Officer certifies that a prisoner is unable to bear this number, some
other punishment shall be awarded.

(ii) The punishment of whipping shall be inflicted only for mutiny or for conduct seriously affecting the
discipline of the prison or for incitement thereto, for serious assaults on public servants or visitor or
when other punishments have failed to deter him from commission of offences of specially grave
nature.

(iii) A record shall be maintained in the Punishment Register as required by Section 51 of the Prisons Act,
1894, of every case punished with whipping. The Superintendent shall promptly submit a special report
about the facts of the case and the award of this punishment, to the Inspector-General.

1583
(iv) The punishment of whipping shall not be inflicted on special class prisoners except with the
permission of Government.

Medical Officer to certify fitness for whipping

Rule 589.--- (i) The punishment of whipping shall not be inflicted unless the Medical Officer certifies that
the prisoner is in a fit state of health to undergo such punishment.

(ii) If during the execution of a sentence of whipping, the Medical Officer certifies that the prisoner is
not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally
stopped (Section 394 of the Code of Criminal Procedure, 1898).

Mode of inflicting punishment of whipping

Rule 590.--- (i) No punishment of whipping shall be inflicted in instalments, or except in the presence of
the Superintendent and Medical Officer or Junior Medical Officer.

(ii) Whipping shall be inflicted on the buttocks with a light rattan not less than half an inch in diameter,
and in the case of prisoners under sixteen years of age, it shall be inflicted, in the way of school
discipline , with a lighter rattan, (Section 53, Prisons Act, IX, 1894).

Explanation 1.--- To prevent undue laceration of the skin, a piece of thin cloth soaked in some
antiseptic solution shall be spread over the prisoner's buttocks during the operation. Such cloth
shall be thoroughly washed and afterwards soaked in an antiseptic solution before being again
brought into use, so as to obviate the possibility of disease of any kind being conveyed from one
prisoner to another.

1584
 Explanation 2.--- The drawing stroke which is calculated to lacerate the skin is prohibited.

Limits of stripes

Rule 591.--- In case of prisoners of over sixteen years of age, such punishment shall not exceed thirty
stripes, and in case of prisoners under sixteen years of age, it shall not exceed fifteen stripes.

Act VII of 1996 was introduced on 15 April 1996 to abolish and restrict the punishment of whipping.
Sections 2 and 3 of the said Act read as follows:-

"2. Definition.-- In this Act, unless there is anything repugnant in the subject or context, the
expression "hadd" means the punishment of crimes laid down in the Holy Qur'an and Sunnah.

3. Abolition of punishment of whipping.-- Except in cases where the punishment of whipping is

provided for as hadd, the sentence of whipping provided under any law, rule or regulation for
the time being in force shall stand abolished:

"Provided that where, on the commencement of this Act, the sentence of whipping awarded by
any Court or Tribunal has not been executed, such sentence of whipping shall stand remitted."

185. It is therefore evident that rules permit the Superintendent to impose penalty by way of (a) cellular
confinement, (b) imposition of link bars (c) imposition of handcuffs and (d) imposition of link fetters are
part of existing Prison Discipline. If a prisoner is handcuffed or is in fetters within a cell as a consequence
of the award of punishment by the Superintendent, for violating a prison offence, then he is precluded
from performing ablution, offering compulsory prayers five times a day, recitation of Holy Qur'an, (c)
reading and writing, (d) and is also handicapped in answering the call of nature apart from (e) facing
undue difficulty in performing Tahaarat. This practice is violative of a large number of injunctions of Holy

1585
Qur'an and Sunnah which need not be cited as they are numerous and well known.

186. Imam Muslim quotes a tradition on the authority of Abu Huraira RA wherein it is stated that the
Holy Prophet (p.b.u.h.) strictly prohibited the believers from transgressing or treating another person
with contempt or dishonouring him. Even to consider another person to be insignificant is a sin
according to this tradition. We have already referred to a tradition in this judgment wherein it is stated
that every human being is answerable to Allah for the manner in which he treats those who are under
his control and supervision. Ayat 11 of Sura 49 (Al-Hujurat) stipulate that addressing another human
being, man or woman in a debasing manner should be scrupulously avoided. The translation of the Ayat
is as follows:---

"(10) Surely the believers are none but brothers unto one another, so set things right between
your brothers, and have fear of Allah that you may be shown mercy.

(11) Believers, let not a group (of men) scoff at another group, it may well be that the latter ( a t
whom they scoff) are better than they; nor let a group of women scoff at another group, it may
well be that the latter are better than they. And do not taunt one another, nor revile one
another by nicknames. It is an evil thing to gain notoriety for ungodliness after belief.

In this background it is clear that the provisions in the Jail Manual, being contrary to the letter and spirit
of the aforesaid Injunctions of Islam, have a debasing, demeaning and a negative effect on the prisoners.
It violates human dignity. No right of appeal is granted against such an inhuman penalty. Consequently
we declare sub-Rules (6), (7), (8), (9) of Rule 583; sub-Rules (3), (4), (5), (6) and (7) of Rule 584, Rules
588; 589, 590 and Rule 591 in entirety contained in chapter 23 of Prison v Rules to be violative of Ayat
43, 110 of Sura 2; Ayat 43 of Sura 4 and v Ayat 6 of Sura 5 as well as Ayat 1 Sura 58 (Al-Mujadalah) of the
Holy Qur'an. This declaration will take effect from 1-12-2009. It is hoped that necessary provisions will
be incorporated and a right of appeal before an independent tribunal will also be provided to the
accused prisoner against major offences. The Inspector General' of Prisons of each Province shall
intimate in writing, through the Registrar of this Court, by 31-12-2009, about the grant of right of
appeal. In case right of appeal is not granted the case will be reviewed in February 2010 to examine the
desirability of declaring the entire Chapter 23 of the Pakistan Prison Rules, 1978 as violative of
Injunctions of Islam and the judicial precedents.

1586
187. We cannot help observing that the right of appeal against the penalty imposed upon a prisoner by
Jail authorities for alleged violation of prison offence was intentionally not conceded to the prisoner
even though the Federal Shariat Court in re The Civil Servants Act (LXXI of 1973) reported as PLD 1984
FSC 34 as well as in the case of Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and
others PLD 2005 FSC 3 had, over a period of two decades, held that right of appeal is inherent in Islamic
system of administration of Justice. Another precedent of the Apex Court, Pakistan v. Public At Large
reported as PLD 1987 SC 304 may also be perused on this point. This jaundiced and inane attitude of
administration towards detenues is an instance of clear negation of Article 37 of the Constitution as
well.

188. The Provincial Governments should therefore make provision for incorporating a right of appeal in
Chapter 23 of the Pakistan Prison Rules as well in cases involving major penalties or where more than
one penalty is sought' to be imposed. The forum of appeal should be the Sessions Judge of the District in
whose territorial jurisdiction the penalty is imposed. The rule should also provide that the punishment
will not be executed till the disposal of appeal. By providing a legal remedy by way of appeal, the
authority awarding the penalty will be under an obligation to frame a charge, record evidence and write
a well reasoned order after recording statement of the answering respondent.

SEGMENT NINETEEN

PRISONER'S PROPERTY

189. In this part we would take up, on our motion, examination of Rule 84 occurring in Chapter 4
entitled "Prisoners Property" in the Pakistan Prison Rules. The rule reads as follows:---

"Rule 84.-- Cheques may be issued by the prisoners while confined in prison on the following
conditions:-

(a) A cheque for not more than 5000 rupees will be allowed at one time once a week for
maintenance of the dependents of the prisoner.

1587
 (b) The signature of the prisoner will be duly attested by the Superintendent.

(c) If a cheque for more than 5000 rupees is required at any time, the relatives of the prisoners
should get a written permission from the [District Coordination Officer]

(d) On no account a prisoner should be allowed to run a business by issuing cheques during his
term of imprisonment.

(e) The cheque book shall remain in the custody of the Deputy Superintendent.

We consider these provisions to be violative of the various Injunctions of Islam as enumerated in Ayat
60, 168, 172 and 187 of Chapter 2; Ayaat 4 and 88 of Sura 5; Ayaat 141-142 of Sura 6; Ayat 160 Sura 7;
Ayat 14 Sura 16; Ayat 81 Sura 20; ,Ayat 28 Sura 20 and Ayat 15 Sura 34 of Holy Qur'an which makes it
abundantly clear that every person is entitled to use his income in any lawful pursuit /occupation/trade
that he likes. It is also the legal responsibility of every believer to defray the expenses of his wife and
children. No law or a provision of law can abridge or adversely affect the legal responsibility of a
prisoner to maintain his family. The cheque book of a prisoner may be retained in safe custody and in
order to ensure the genuineness of the cheque issued by a prisoner, the Superintendent or Deputy
Superintendent of prison can be authorized to counter sign the cheque issued by the prisoner but the
condition of seeking permission from District Co-ordination Officer for an amount exceeding Rs.5,000, as
visualized by clause (c) of Rule 84, is an unwarranted clog on the exercise of a right which, according to
the Holy Qur'an is an innate ingredient of the legal capacity of an adult. However it should be borne in
mind that cheques can be issued as and when the prisoner wants provided the amount of money lying
in the Bank is not subject-matter of any offence like cheating, theft, burglary or some other illicit means.
An accused or a convict involved in other offences would be entitled to the concession of issuing
cheques or giving advice to the financial Institution/Insurance Companies.

190. In this view of the. matter we declare- rule 84 to be violative of the Injunctions of Islam because
this Rule, instead of providing facilities creates difficulties for the internees which hurdle in itself is
violative also of the already quoted tradition of the Holy Prophet (p.b.u.h.) in which the Muslims have
been directed to create conditions which make things easy for the people rather than difficult. It is

1588
violative of the Principle of Usar and Yusar as enunciated in Ayat 185 Sura 2 and Ayaat 5 and 6 of Sura 94
of the Holy Qur'an. This provision is an unnecessary obstacle in earning Rizk-e-Halal which is the
fundamental right of every human being. The Holy Qur'an exhorts believers to earn livelihood through
legitimate means. This provision shall cease to have effect from 1.12.2009 during which period
necessary amendments or deletion may be made in Chapter 4 of the Prison Rules.

SEGMENT TWENTY

PART-A

CLOSING REMARKS

191. In this segment we will consider the following issues.

A. Deficiencies of Prison Manual

B. Uncompensated Labour

C. The Agreed Upon Matters.

A. DEFICIENCIES OF PRISON MANUAL

192. Before we part with this case we cannot help observing, though painfully, that the prevailing prison
discipline lacks some basic requirements. Drastic amendments are needed to make the existing Jail
Manual a real human friendly document. We have noticed inter-alia the following aberrations in the

1589
prevalent prison discipline:---

1. Absence of Reformatory, Correctional and Rehabilitative schedule;

2. Malnutrition of prisoners.

3. Continuous exposure of the prisoner to hot and cold weather throughout the period of
detention.

4. The detenue has no option but to live in unhygienic atmosphere without adequate medical aid
during the entire detention period.

5. Indifference of Prison Staff towards the religious obligations of prisoners;

6. Uncompensated labour and that too beyond eight hours as contemplated by Rule 812 (barring
the Province of Sindh and - N.-W.F.P.).

7. Ardous parole system;

8. Tardy remission system;

9. Complete denial of conjugal visits;

10. Absence of judicial supervision over prisons;

11. Humiliating procedure of interviews;

12. Delayed disposal of trials as well as appeals and mercy petitions.

13. Highly controlled and restricted communication with outer world even during emergencies;

14. Inability to seek judicial remedy against punishments awarded by prison authorities;

15. Denial of facility to regulate private business through cheques.

16. Exploitation of prisoners at every step;

17. Humiliation of the prisoner from the time a prisoner enters the prison house;

18. Insulting Parade system;

1590
 19. Corrupt practices.

193. Efforts should therefore be made by policy makers to rationalize the penal system with particular
reference to prisons, prisoners, and prison discipline. Prisons are being used only for the purpose of
awarding physical pain and punishment in addition to mental torture. The theory that prison regime
should be punitive and humiliating must surrender now in favour of a human friendly system where
prison should be developed into institutions for shaping prisoners into responsible and responsive
citizens. Mechanical infliction of imprisonment as a mode of standardized punishment irrespective of
the socio-economic conditions of an offender has for sure, been a completely unsuccessful experience in
South Asia during the last 115 years of the prison history starting from the first prison legislative
instrument, namely: The Prisons Act, 1894. It is also a disturbing experience that a vast majority of
prisoners belongs to the poor section of our society. This hard reality of our social life poses a challenge
to the administration of justice in Pakistan.

B. UNCOMPENSATED LABOUR

194. The element of uncompensated labour is an extremely regrettable feature of Prison history in the
sub-continent. Over a period of decades the prison population has been continually exploited by the
white rulers who had virtually converted the local prisons into concentration camps. All huge projects
like digging of a complicated canal system spread over hundreds of kilometers, the raising of jungles;
constructing secretariats and other structures for official use was the un-compensated contribution of
generations of prisoners. If the working hours put in by succeeding generation of detenues are
converted into wages payable in cash .extending over these long decades, it will reveal a staggering
figure. The same unfair trend and high handedness is persisting unabated notwithstanding the fact that
this practice violates the Injunction of Islam. The Prison officialdom must realize that compensation for
labour is as vital as is the monthly salary of any government servant. Steps should therefore be taken to
initiate a judicious system in this neglected field. Concern must substitute apathy.

195. Section 53 of Pakistan Penal Code, 1860 contemplates ten types of punishments to which offenders
are liable. The Eighth category is imprisonment which is of two descriptions, namely:

(i) Rigorous i.e. with hard labour;

1591
(ii) Simple;

According to Appendix-A of the Pakistan Prisons Rules 1978 rigorous imprisonment is further classified
as under:-

(i) Hard labour;

(ii) Medium labour;

(iii) Light labour

Each classification contains a list of various kinds of labour to be undertaken by a prisoner in that
category. Under rule 812 of Pakistan Prisons Rules 1978 read with section 35 of the Prisons Act, 1894 no
prisoner shall be asked to undergo labour for more than nine hours on any day except in emergencies
with the written sanction of the Central Jail Superintendent. It is worth noticing that the concept of
monetary compensation for hard, medium or soft labour undertaken by prisoners during imprisonment is
alien to prison discipline. However under Rule 199'a prisoner, sentenced for a period of four months or
more may by good conduct and industry, become eligible for release when a portion of his sentence
ordinarily not exceeding one-third of the whole sentence has yet to run.

196. Ordinarily remission to be awarded to prisoners is on the following scales.

(a) Two days per month for thorough good conduct and scrupulous attention to all prison
regulation.

1592
 (b) Three days per month for industry and due performance of the prescribed daily task.

Ordinary remission may also be awarded to a prisoner, other than a prisoner employed on prison
service, as specified in the table. Compensation in cash is never paid to any convicted prisoner in lieu of
the hard labour put in by him. Prisoners are at best entitled to paltry remissions alone. However, in
cases where Prison industry is leased out to private sector/contractor, the compensation in cash can be
given to a prisoner for the hard labour which however does not exceed Rs. 15/- per day. However in the
case of carpet weaving fields, a sum of Rs.40/- per prisoner per day may be sanctioned for Central Jail
Faisalabad. Payment of this meager amount is clear exploitation. This sort of treatment is violative of:

(i) Ayat 188 Sura 2, (ii) Ayaat 29, 161 Sura 4

(iii) Ayat 34, Sura 9 (iv) Ayat 70, Sura 39

(v) Ayat 9, Sura 53 and (vi) Ayat 90, Sura 16.

Reference to Sunnah would also be useful. In section No.826 Chapter 533 Book of Ijara, Sahih Bukhari, it
is reported on the strength of Abu Huraira R.A. that the Holy Prophet (p.b.u.h.) will oppose three
categories of persons firstly those who, while making a promise, used his name as a surety, secondly
those who sell a free man as a slave and thirdly those who exacted work from a worker but did not pay him
his wages.

197. It will not be enough to abolish the system of uncompensated labour but steps will have to be
taken to devise a methodology whereby uninterrupted work is provided to the prisoners and payments
for the work done is also made regularly.

198. Such an exercise would not be without a policy decision at Government level and its incorporation
in the Prison Rules. It could be a three pronged strategy. The first step would be to make a table of
various types of jobs that could be undertaken by prisoners within the prison precincts. The purpose of
this table would be to allocate work to each according to his proclivity. The wages of each category of

1593
work to be fixed according to, prevailing market rates. The second step would consist of dividing the
wages into three parts. One portion, not more than ten percent of monthly income, could be deposited
in his name with the Prison Canteen, to enable him to defray expenses of personal nature. Forty percent
of the monthly income could be paid to the wife or children of the accused and in case he has no
dependent then the ninety percent of the monthly income could be invested in the Islamic Insurance so
that the prisoner gets a handsome amount at the time of his release to help him enter the mundane life-
cycle with confidence. The third step could be a scheme wherein the Government compensates the
complainant or aggrieved person, at the time of the verdict of the last Court and then recover the same
amount from the amount of money accumulated with the Insurance company.

C. THE AGREED UPON ISSUES

199. A general discussion during the course of arguments took place on 21-5-2008 on the ten consensus
issues framed by this Court on 8-2-2008. These issues have already been noted in the earlier part of this
Judgment. The general agreement of the learned counsel of all the parties on these issues is reflected in
the following terms:-

(i) Facilities be provided to married prisoners to perform conjugal rights within and without the
prison precincts depending upon the nature and type of convict/prisoner and/or his capacity to
provide satisfactory sureties for his return. The representative of Prison Department brought to
our notice an amendment effected in the Pakistan Prison Rule by Government of the Punjab
with effect from 03 May 2007. Rule 545-A Special Meetings was added. Similarly the
Government of NWFP vide Notification printed in Gazette on 5.5.2005.

(ii) The general superintendence of the prison precincts should, from the administrative point of
view, be under the control of male staff while female staff should perform general duties in the
prison cells where female prisoners are lodged. This is in fact the prevalent practice. However
extra care should be taken in so far as female and juvenile prisoners are concerned.

(iii) The question of classification of prisoners into A, B and C class will be determined in this
judgment after a detailed discussion in the light of Islamic Injunctions and judicial decisions.

1594
(iv) Grant of remissions of sentence on special occasions is a prerogative of the Government
which discretion cannot be controlled by judicial decisions. The Courts can only make
observations and identify certain guiding principles for the ad

1595
P L D 2010 Federal Shariat Court 229

Present: Agha Rafiq Ahmed Khan, C. J.,

Syed Afzal Haider and Shahzado Shaikh,
JJ

MOHTARMA BENAZIR BHUTTO and

another---Petitioners

Versus

FEDERATION OF PAKISTAN through

Secretary Finance Islamabad---
Respondent

1596
Shariat Petition No.1/K of 2002, decided on
15th April, 2010.

(a) Constitution of Pakistan (1973)---

----Arts. 203-D & 270-A---Power and

jurisdiction of Federal Shariat Court---
Scope---Fact that certain instruments were
mentioned in Seventh Schedule of the
Constitution in terms of Art. 270-A of the
Constitution would not preclude the
determination of the List on the touchstone
of Art. 203-D of the Constitution to examine
and decide the question whether or not the
provisions under challenge were repugnant
to the Injunctions of Islam as laid down in
the Holy Quran and Sunnah---Such a
proposition was also ascertainable from the
Preamble of the Constitution.
1597
(b) Constitution of Pakistan (1973)---

----Preamble---Oath under the Constitution--

-Significance---Ruling elite takes oath under
the Constitution to preserve its sanctity---
One who takes oath to preserve and protect
the Constitution cannot break it to the
detriment of entire nation; it is not like
breaking the oath of an individual whose
atonement is made possible by Islamic
Injunctions---Constitution does not provide
any expiation for the transgressors who were
under oath to preserve it ; Constitution
declares it to be a very serious offence.

(c) Constitution of Pakistan (1973)---

1598
----Arts. 4 & 5---Interpretation of Arts. 4 &
5 of the Constitution---Articles 4 & 5 of the
Constitution make it clear that deviation
from law has not to be countenanced; this is
an assurance to the people of Pakistan that
people in authority shall treat them in
accordance with law and each one is bound
by these stipulations of the Constitution.

(d) Zulfiqar Ali Bhutto Trust and Peoples

Foundation Trust (Renaming and
Administration) Order [P.O. 4 of 1978]---

----Preamble---Zulifqar Ali Bhutto Trust and

Peoples Foundation Trust (Renaming and
Administration) (Amendment) Order [P.O. 6
of 1979], Preamble---Martial Law Order,
1979 [By Martial Law Administrator Zone
No.26---Martial Law Order, 1977 [By Chief
1599
Martial Law Administrator] No.21---
Constitution of Pakistan (1973), Arts. 2-A, 4,
12, 23, 24, 25 & 203-D---Trusts Act (II of
1882), Chapters III & IV---Civil Procedure
Code (V of 1908), S.92---Repugnancy to
Injunctions of Islam---Stipulated Presidential
Orders/Martial Law Orders were violative of
the Injunctions of Islam five Maqasid-e-
Shariah and various Articles including Arts.
2A, 4, 23 & 25 of the Constitution; because
the name of the Trust was altered; the
objectives underwent a change; the
administrative machinery was substituted for
the original trustees; all the trustees, who
were affected by the Martial Law Orders
were at the time of promulgation of such
Orders were women folk; the intrinsic rights
of the appropriator were hacked without
lawful authority and the wishes of the
dedicators as regards the appointment of a
Mutwalli i.e. Managing Trustee had
1600
altogether been altered and that impugned
Martial Law Orders, put into effect by force,
denied to the trustees, the rights and
privileges available to them under Chapters
III & IV of the Trusts Act, 1882 and S.92,
C.P.C. without following the principles of
natural justice or principles of legality--
Impugned Martial Orders were consequently
of no legal effect as these instruments
suffered on account of infirmities---Held, all
the steps taken, actions suffered, and all
orders passed by any court, tribunal or any
authority including Martial Law
Establishment, under any of the impugned
Orders were declared repugnant to the
Injunctions of Islam, and thus never to have
existed in the eyes of law and resultantly of
no legal effect---Presumption would be that
the situation that prevailed immediately
before 17th October, 1977 i.e. the date of
issuance of Martial Law Order No.21 of
1601
1977 was still continuing---Martial Law
Order No.21 dated 17th October, 1977;
Martial Law Order No.26 dated 28th
September, 1977 issued by Martial Law
Administrator Zone "C"; President's Order
No.4 of 1978, dated 26th March, 1978 and
President's Order 6 of 1979, dated 28th
February, 1979 were in entirety repugnant to
the Injunctions of Islam---Present decision
regarding the afore-mentioned impugned
Martial Law Orders shall take effect from
the date of announcement of the
judgment/decision i.e. 15-4-2010.

Holy Qur'an Ayat 251 Sura 2, Al-Baqra;

Ayat 38 of Sura 42 Ash Shoora); Ayat
159,Sura 3 Ale Imran, Ayat 1 through 5
Sura 55,Ar-Rahman; Ayat 83 Sura 2 Al-
Baqra; Ayat 110 Sura 3 Ale Imran; Ayat 67
Sura 9 Al-Tawbah; Ayat 1 through 4 Sura
1602
96 Al-Alaq; Ayat 149 Sura 4 Al-Nisa; Ayat
1 Sura 58 Al-Mujadalah; Ayat 71 Sura 17
Bani Israel; Ayat 29 of Sura 4; Ayat 286
Sura 2 Al-Baqra; Ayat No.233 Sura 2 Al
Baqra; Ayat 152 Sura 6 Al-An'am; Ayat 42
Sura 7 Al-Al'raf; Ayat 38 Sura8, Al-Anfal;
Ayat 15 Sura 17, Bani Israel; Ayat 59 Sura
28 Al-Qasas;; Ayat 17 Sura 13 Al-Ra'd;
Ayat 4. Sura 48 Muhammad; Muhammad
Aslam Khaki v. State PLD 2010 FSC 1 and
Ayat 220 Sura 2 Al-Baqra ref.

(e) Islamic Jurisprudence---

----Administration of justice---Appeal, right

of---Scope---Islamic Injunctions and
teachings grant to every aggrieved person
the freedom to lodge protest---Every such a
person has a right of representation; he is
1603
free to lodge an appeal against an order
affecting him adversely and it is his right
that his appeal will be adjudicated upon
without inordinate delay by an independent
Tribunal---Such person under no
circumstances be stopped from exercising
his basic rights---Principles.

Islamic Injunctions and teachings grant to

every aggrieved person the freedom to lodge
protest. Every aggrieved person has a right
of representation. He is free to lodge an
appeal against an order affecting him
adversely and it is his right that his appeal
will be adjudicated upon without inordinate
delay by an independent tribunal. He can,
under no circumstances be stopped from
exercising his basic right.

1604
There exists in the aggrieved person the
unfettered right to lodge a protest or prefer
an appeal before a higher authority with the
object of seeking redressal of grievance. The
authority hearing the appeal is under
obligation to decide the same. The arbiter is
required to give due weight to violation of
human rights and human dignity. The
authority may, where necessary, impose a
penalty upon the violator of human rights.
(reference Ayat No.4 of Sura 58 Al-
Mujadilah). Even a law can be
amended/repealed on account of a protest.
The right of an individual to initiate
proceedings cannot be circumscribed.

The reference to Divine attribute of Hearing

and Seeing for well over four score times in
Holy Qur'an shows that the right of an
aggrieved person to lodge protest, appeal or
1605
representation against the wrong doer before
a higher tribunal, i.e. a person other than the
one whose order is to be challenged has
Divine sanction. The repeated reminders by
Holy Qur'an that Allah is Hearing and
Seeing is, on one hand, a permission to an
injured soul to initiate proceedings and on
the other hand a warning to the adjudicator
that Allah constantly watches the way
matters are being adjudicated upon. These
oft-repeated attributes of Alllah i.e. Seeing
and Hearing, mentioned in the Holy Quran
are designed to act as guarantees. In other
words the rights and freedoms are
justiciable.

The Constitution as well as legal instruments

in force in Pakistan, provide ample remedies
to aggrieved persons by way of appeals,
revisions, reviews. The Constitution
1606
mandates that the Supreme Court, Federal
Shariat Court and the High Courts shall have
power to exercise original and Suo Motu
jurisdiction, and thereby provide relief to
aggrieved persons. The superior judiciary
has, while interpreting various provisions of
law held that right of appeal, representation,
show-cause notice is inherent 'in Islamic
teachings. An instrument, having the force
of law, which purportedly denies the right of
appeal etc. or which does not provide for a
show-cause notice will be deemed to be
violative of the Injunctions of Islam.

Islam has conferred upon human beings the

freedom of expression. Grievances have to
be redressed. Any bar on this right is
negation of the Divine principle of human
dignity.

1607
Human freedom has thus been guaranteed
by the Creator Himself for all times to come.

Jamay Tirmazi Vol. 1, Tradition No.1363;

Holy Quran Ayat 9 of Sura 33, Al-
Mu'minun; Ayat 148 Sura 4 Al-Nisa, Ayat 1
Sura 58 Al-Mujadilah; Pakistan and others
v. Public at Large and others PLD 1987
Supreme Court 304; Pakistan through
Secretary Ministry of Defence v. the
General Public PLD 1989 SC 6; In re: The
Civil Servants Act, (LXXI of 1973) PLD
1984 FSC 34; Messrs Sadiq Brothers vs.
Appellate Additional Commissioner, Income
Tax/Wealth Tax, Rawalpindi and another
2004 PTD 122; Dr. Muhammad Aslam
Khaki and others vs. Government of Punjab
and others PLD 2005 FSC 3; Nahjul Balega
as Khutba No.86 by Imam Ali R.A. the
Forth Caliph and Ayat 257 of Sura 2, Al-
1608
Baqra ref.

(f) Islamic Jurisprudence---

----Fundamental rights---Freedom of
expression---Islam has conferred upon
human beings the freedom of expression---
Grievances have to be redressed---Any bar
on such right is negation of Divine principle
of human dignity---Human freedom has thus
been guaranteed by the Creator Himself for
all times to come.

(g) Islamic jurisprudence---

---Administration of justice---Superamacy
of rule of law---Quran contains stern

1609
warning for all those who are charged with
the onerous duty of regulating the affairs of
State or administering justice among people-
--Arbiter cannot deviate from the principles
laid down in the revelations; his decisions
must be in accord with the revealed rules---
People should be judged by means of
precepts and values ordained by Quran for
human guidance.

Holy Qur'an Ayaat 44, 45, 47 of Sura 5, Al-

Maida; Ayat 42 Sura 5; Ayat 105 of Sura 4
Al-Nisa, Ayat 135, Sura 4 Al-Nisa; Ayat 90
Sura 16 Al-Nahl; Ayat 8 Sura 5 Al-Maida;
Ayat 152 Sura 6 Al-Anaam; Ayat 26; Sura
38, Suad; Ayat 15 Sura 42, Al-Shura; Ayat
29 Sura 7, Al-Aaraf; Ayat 42 Sura 5, Al-
Maida; Ayat 9, Sura 49, Al-Hujraat; Ayat 9,
Sura 55 al-Rehman; Ayat 126 Sura 16, Al-
Nahl; Tradition 1962 Vol. 3, Bukhari;
1610
Khutba Hujjatual Wida; Ayat 153 Sura 6;
Ayat 29 Sura 7; Ayat 135 Sura 4 and Hadith
No.1363 Vol. 1,Jame Tirmazi and Ayat 50
Sura 5 Al-Maida ref.

(h) Islamic jurisprudence---

----Acquisition of property---Acquiring
assets, interests, properties of others without
lawful means---Mandate---Modes of
acquisition of property other than the
accepted customary or legally permissible
methods is termed as batil which is antonym
of Haq i.e. truth---Thing which causes
mischief would be batil.

Al-Qur'an Ayat 188 Sura 2 Al-Baqra and

Ayat 29, Sura 4, Al-Nisa ref.

1611
(i) Islamic Jurisprudence---

---Legal capacity of an adult---Scope.

According to Islamic Jurisprudence the legal

capacity of an adult is complete after he/she
has attained puberty as well as Rushd. This
capacity is the ability or fitness to acquire
and exercise rights and to accept and
perform corresponding duties and
obligations. Both the capacities i.e.,
acceptance or acquisition of rights and the
performance of duties is termed in Islamic
Law as Ahliyyat al wajub and Ahliyyat al
ada respectively. This legal capacity or
Dhimma, is complete and has legal effect. It
means the capacity to sue and be sued. It
means the capacity to lodge protest or file an
1612
appeal as well the capacity of being called
upon to answer a charge. It is a status
without which an individual cannot be
treated as a legal, responsible entity. It is a
Divine gift and it cannot be limited by a
unilateral order of any mundane authority-
without recourse to Injunctions of Islam.
Any such attempt would be a challenge to
the Creator who conferred not only dignity
upon human beings but also clothed them
with legal capacity. It is on account of this
legal capacity that a human being becomes a
Mukallif i.e. an obligee and thus a subject of
Khitab i.e. communication from his Lord. A
person having legal capacity is answerable
to God and no one has the authority to deny
a person of the status conferred upon him by
his Creator.

The action of Chief Martial Administrator

1613
whereby he denied through a special Order
the petitioners their rights to supervise and
control the Trust without recourse to the
provisions of law, and thus the act of
issuance of Martial Law Order debarring the
courts of Pakistan from providing legal
remedy to the petitioners is violative of the
principle of Legal Capacity. Extraordinary
Power of an individual is death knell of
human freedom. Absolute power vests in
Allah Almighty alone.

(j) Islamic Jurisprudence---

----Principle of Adam Harj i.e. removal of

hardship---Avoidance of hardship is a
salient feature of the Islamic teachings.

1614
Al-Qur'an Ayat 6 Sura 5 al-Ma'idah and
Ayat 78, Sura 22 Al-Hajj ref.

(k) Islamic Jurisprudence---

----Principle of Taiseer i.e. ease has

provided necessary means to encourage
flexibility and development of law for the
solution of ever increasing human problems.

Al-Qur'an Ayat 184 Sura 2 Al-Baqra; Ayat

185, Sura 2, Al-Baqra; Ayat 196, Sura 2,
Al-Baqra; Ayat 280 Sura 2, Al-Baqra; Ayat
92, Sura 4,Al-Nisa; Ayat 157,Sura 7,Al-
A'raf; Ayat 4 Sura 58, Al-Mujadalah;
Ayaat 19, 20, Sura 80, Abasa; Ayat 55
Sura 39, Al-Zumr.

1615
(l) Islamic Jurisprudence---

----Principle of Takhfeef i.e. reduction of

burden---Allah wants to lighten your
burdens, for man was created weak.

Al-Qur'an Ayat 28, Sura 4, Al-Nisa and

Tradition No.630 Vol.5, Bukhari ref.

(m) Islamic Jurisprudence---

----Trust---Even a revolutionary change of

government will not alter the existing right
of a trustee to continue retaining the legal
office of trusteeship which office shall
remain with the progeny of the trustee till
eternity.

1616
(n) Constitution of Pakistan (1973)---

----Art. 203 & Seventh Schedule---

Jurisdiction of Federal Shariat Court---
Scope---Federal Shariat Court has the
jurisdiction to examine any legal instrument
on the touchstone of Injunctions of Islam---
Principles.

(o) Islamic Jurisprudence---

----Legislation---Beneficent legislation---No
legislation or even an executive order which
is not for the benefit of people can hold
field---Principles.

1617
Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and
Ayat 4, Sura 48 Muhammad ref.

(p) Islamic Jurisprudence---

----Administration of justice---Legislation---
If the law giver or the arbiter happens to be a
person who is either personally aggrieved by
the opposite party or who has played a
successful part in bringing about a change in
the government through revolution or
conquest to the determent of the opposite
party, he shall then neither be an arbiter in
the cause of his opponents nor shall he pass
any order to the detriment of his adversaries.

Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and

Ayat 4, Sura 48 Muhammad ref.

1618
(q) Constitution of Pakistan (1973)---

----Part. VII, Ch.3-A [Arts. 203-A to 203-J]-

--Shariat Appellate Bench of the Supreme
Court and the Federal Shariat Court have the
jurisdiction and powers to examine Martial
Law Regulations and to decide whether or
not the provisions thereof are repugnant to
the Injunctions of Islam.

Qazalbash Waqf and others v. Chief Land

Commissioner, Punjab Lahore and others
reported as PLD 1990 SC 99 ref.

(r) Constitution of Pakistan (1973)---

1619
----Art. 203-D---Repugnancy to Injunctions
of Islam---Powers of Federal Shariat Court--
-Scope---Law of limitation---Applicability--
-Significant feature of the jurisdiction of
Federal Shariat Court in that law of
limitation does no apply to such
proceedings.

Al-Qur'an Ayaat 62 and 63 fo Sura 4, Al-

Nisa and Ayat 114 of Sura 11 Hud ref.

(s) Constitution of Pakistan (1973)---

----Art. 203-D---Examination of laws by the

Federal Shariat Court--Primary object
illustrated.

1620
Barrister Kamal Azfar, Syed Riaz-ul-Hassan
Gillani, Advocate, Sardar Zulqarnain,
Advocate and Rafey Altaf, Advocate for
Petitioners.

Rizwan Ahmed Siddiqui, Deputy Attorney-

Geneal, Aamir Raza Naqvi, Deputy
Attorney-General, Muhammad Ashraf Khan
Mughal, Deputy Attorney-General, Sardar
Abdul Majeed, Advocate, Muhammad Nazir
Abbasi, Standing Counsel, Tariq Ali,
Advocate, Fareed-ul-Hassan, A.A.G, Sindh,
Syed Sajid Ali, Joint Admn Officer Pak
P.W.D. Ministry of Housing and Works,
Karachi, Khalid Tepu Rana, Solicitor,
Muhammad Arif Chaudhary, Federal
Inspector of Drugs, M/o Health, Muhammad
Aslam Shaikh, Joint Admn Officer M/O
Housing and Works and Ihsan Karim, Audit
Officer, Auditor General Office for Federal
1621
Government.

Dr. Sajid-ur-Rehman Siddiqui for

Jurisconsult.

Dates of hearing: 23-10-2007, 12-2-2008,

26-3-2008, 9-4-208, 22-10-2008, 20-11-208,
6-1-2009, 13-1-2009, 11-3-2009, 10-4-2009,
7-4-2010.

JUDGMENT

SYED AFZAL HAIDER, J. - This petition

was moved in this Court in March, 2002. It
remained dormant till pre-admission notice
was issued to the Federal Government on
1622
23-10-2007. The petition was heard at
Karachi and Islamabad on 11 occasions.
Lastly it was heard at the principle seat of
this Court on 15-4-2010 when a short order
allowing the petition was announced after
the contending parties had concluded their
arguments. This judgment proceeds to give
reasons for the said short order whereby the
instant petition was accepted and the
impugned Martial Law Orders were
declared repugnant to the Injunctions of
Islam.

FACTUAL BACKGROUND

2. Begum Nusrat Bhutto, widow of late

Prime Minister Zulfiqar Ali Bhutto along
with her daughter Mohtarama Benazir
Bhutto, the twice elected Prime Minister of
1623
Pakistan and her son Mir Murtaza Bhutto
founded a Trust with the name and title of
"Peoples Foundation" on 8th August, 1974.
It was duly registered as required by law.
The three founders were the trustees while
petitioner No.1 was also Chairperson of the
Trust.

3. The said Trust was established with clear-

cut objectives as indicated in the Deed
attached to the petition. The affairs of the
Trust were being managed smoothly by the
Trustees who were performing their
stipulated rights and obligation in
accordance with the procedure laid down in
the Deed. The Trustees in due course
received donations including a contribution
from the Head of State of United Arab
Emirates to advance the purposes of the
trust.
1624
4. The petitioners, in paragraphs 06 through
14 of the Shariat Petition have detailed the
background of the misery that befell them
and their Trust on account of promulgation
of Martial Law Orders and the consequents
efforts they undertook to seek redress from
1977 October onwards. The said paragraphs
are being reproduced verbatim:-

"6. That the Trustees were exercising

their obligations freely and correctly.
With untiring efforts the Trustees
succeeded in building a People's
Foundation building from the funds
donated from time to time. A modern
press known as the Peoples Foundation
Trust was established. One newspaper
and one periodical was being printed in
the said press for the Trust and countless
1625
other publications also availed of the said
press. The accounts of the Trust were
duly audited to the satisfaction of the
concerned authorities. All payments
were made by cheque and received by
cheque with supporting vouchers. The
CBR extended the annual permission
under section 15-D of the Income Tax
Act, 1922 being satisfied with the
correctness of the accounts and
operations of the Trust. No allegation of
breach of Trust on the part of the
Trustees was ever made nor could have
been made.

7. That the petitioners have certain

statutory duties and obligations as are
prescribed in the Trust Act, 1882 with
regard to the Trust. The manner of
discharge is also prescribed in the Trust
1626
Deed. Furthermore, in case any person
wishes to proceed against the Trust with
regard to inquiries into its accounts or
the removal of Trustees the procedure
prescribed in section 92 of the Code of
Civil Procedure has to be followed and
the permission of the Advocate-General
obtained.

8. General Zia-ul-Haq led a coup dated

on 5th July, 1977. The Bank accounts of
the Trust and its associates with UBL
and National Bank of Pakistan were
frozen under MLO 26 issued by the
MLA Zone C, on 28th September, 1977.

"Copies of MLO 21 of CMLA and MLO

26 of Zone C are annexed hereto and
marked as Annexure "C & D".
1627
9. That a petition was filed in the
Honourable High Court of Sindh bearing
No. 501- of 1977 which was heard and
disposed of on 27th February, 1985.

Copy of the said amended petition

alongwith judgment passed thereon are
enclosed hereto and marked as Annexure
"E & F".

10. That while the said petition was

pending hearing before this Honourable
Court, the Chief Martial Law
Administrator respondent No.4 on 1740-
1977 issued Martial Law Order 21 which
runs as follows:-

1628
"1. The Board of Trustees of the People's
Foundation Trust and the Board of
Directors of every institution connected
therewith shall stand suspended
forthwith and every member of the said
Board of Directors of every such
institution shall cease to function as
such.

2. All powers and functions of the Board

of Trustees and of the Board of Directors
of every institution referred to in
paragraph 1 shall vest in and be
exercised and performed by the Chief
Martial Law Administrator by such other
person or body of persons as may be
appointed by him in this behalf."

11. That during the pendency of the said

1629
petition before the Honourable High
Court of Sindh, General Zia-ul-Haq,
issued President's Order No.4 titled as
Zulfiqar Ali Bhutto Trust and People's
Foundation Trust (Re-naming and
Administration) Order 1978, which runs
as under:

"In pursuance of the proclamation of the

fifth day of July, 1977, read with the
Laws (Continuance in Force) Order 1977
(CMLA Order No.1 of 1977), and in
exercise of all powers enabling him in
that behalf the President is pleased to
make the following Order:

1. Short title and commencement.--(1)

This Order may be called the Zulfikar
Ali Bhutto Trust and Peoples Foundation
1630
 Trust (Re-naming and Administration)
Order 1978.

(2) It shall come into force at once.

2. Order to override other laws etc:-

This order shall have effect

notwithstanding anything contained in
any other law for the time being in force
or in Zulfikar Ali Bhutto Trust Deed of
the sixth day of November, 1973, or the
Peoples Foundation Trust Deed of the
ninth day of August, 1974.

3. Re-naming etc. of Zulfikar Ali Bhutto

Trust:

1631
 i). The Zulfikar Ali Bhutto Trust shall be
known as the "Sheikh Zayed Bin Sultan
Al-Nahyn Trust" and the deed of the said
trust dated the sixth day of November,
1973, shall stand amended accordingly.

ii). All the powers and functions of the

Board of Trustees of the aforesaid trust
and of the Board of Directors of every
institution connected therewith shall vest
in and be exercised or performed by a
Board of Trustees composed of such
persons as the President may from time
to time appoint.

4. Re-naming, etc. of Peoples Foundation

Trust-

1632
 (i) The Peoples Foundation Trust shall be
known as the "Sheikh Sultan Trust" and
the deed of the said trust dated the 9th
day of August, 1974, shall stand
amended accordingly.

(ii) All the powers and functions of the

Board of Trustees of the aforesaid trust
and of the Board of Directors of every
institution connected therewith shall vest
in and be exercised or performed by a
Board of Trustees composed of such
persons as the President may from time
to time appoint.

A copy of the P.O. No.4 of 1978 is

annexed and marked as Annexure "G".

1633
 12. That thereafter the President's Order
No.6 of 1979 was issued altering the
objects of the Trust which is contrary to
the injunctions of Islam as also the Trust
Act 1882.

A copy of the P.O. No.6 of 1979 is

annexed and marked as Annexure "H".

13. That the MLO 21 of 1977 of CMLA

and MLO 26 of Zone C and P.O. No.4 of
1978 and P.O. No.6 of 1977 and the
abovesaid action of the Martial Law
Authorities are mala fide in fact and in
law and are repugnant to the Injunctions
of Islam Law as per the law enunciated
by the Shariat Appellate Bench of the
Honourable Supreme Court of Pakistan
1634
in the case of Qazalbash Waqf v. Chief
Land Commissioner Punjab, PLD 1990
SC 99.

14. That the respondent has destroyed

the entity of the Peoples Foundation
Trust and its allied institutions and
confiscated the properties and assets of
the Trust. The respondent is missing,
misappropriating the funds and the assets
of the Trust and applying its income for
purposes other than those stipulated in
the Trust Deed."

PETITIONER'S PLEA

5. The learned counsel for the petitioners

inter alia contended that:

1635
i. Martial Law Order No 21 issued by
Chief Martial Law Administrator dated
17th October, 1977 (printed on page 453
of PLD 1977 volume 5 Statutes Part);

ii. Martial Law Order issued by Martial

Law Administrator Zone "C" (Province
of Sindh) dated 28th September, 1977
(printed on page 122 of PLD 1977
volume 6 Provincial Statutes):

iii. President's Order No.4 of 1978

entitled Zulfiqar Ali Bhutto Trust and
Peoples Foundation Trust (Re-naming
and Administration) Order, 1978 dated
26th March, 1978, (printed on pages 77-
78 of Volume 5 Statutes Part PLD 1977)
and
1636
 iv. President's Order 6 of 1979 entitled
Zulfikar Ali Bhutto Trust and Peoples
Foundation Trust (Re-Naming and
Administration) (Amendment) Order,
1979 dated 28th February, 1979. (Printed
on pages 69-70 of PLD 1979 volume 5
Statutes Part).

are repugnant to the Injunctions of Islam and

should resultantly be declared as such and
consequently of no legal effect. It is also
prayed that the respondents be directed to
hand over the properties and assets of the
Trust to the petitioners forthwith.

6. In support of his contention that the

impugned Martial Law Orders are void and
of no legal effect, Barrister Kamal Azfar
1637
learned counsel for the petitioner, proceeded
to elaborate the points for consideration of
this Court as under:

(The contentions raised by learned

counsel are mentioned in Part A while
the points urged by the religious scholar
on behalf of the petitioners are
mentioned in Part-B. below).

PART-A

i. That the four Martial Law Orders under

examination are violative of the Injunctions
of Islam and consequently of no legal effect;

ii. That the impugned Orders are contrary to

1638
the principles of law enunciated by the
Shariat Appellate Bench of the Supreme
Court of Pakistan in the case of Qazalbash
Waqf v. Chief Land Commissioner, Punjab
reported as PLD 1990 Supreme Court 99;

iii. That the Orders under examination are

colourable and motivated by personal malice
of General Muhammad Zia-ul-Haq who
having deposed Zulfiqar Ali Bhutto, the
duly elected Prime Minister of Pakistan,
confiscated the properties, assets and records
of the Peoples Foundation Trust founded by
his family members.

iv. That although the Trust Act, 1882 and

section 92 of the Code of Civil Procedure,
1908 provide adequate remedies for
inquiring into the affairs of any Trust; yet
1639
the Chief Martial Law Administrator in utter
violation of the existing and operative laws
on the subject circumscribed, the legal
provisions without lawful authority and
suspended the Board of Trustees and
appropriated powers and functions of the
Board. Hence his action under the impugned
Orders was ultra vires the Constitution and
law.

v. That the procedure adopted by Chief

Martial Law Administrator for taking over
the Trust and its assets was violative of the
principles of Natural Justice.

vi. That the step taken by Chief Martial

Administrator was motivated by a desire to
harm, harass and ultimately exterminate the
petitioners.
1640
vii. That there was not a single complaint
lodged by any one with any authority
against the petitioners in relation to the
affairs of the Trust.

viii. That the malice of Chief Martial Law

Administrator was so intense that after the
promulgation of MLO 21 in October, 1977
he caused even the name of the Trust to be
altered through President's Order No.4 of
1978.

ix. That the actions of General Muhammad

Zia-ul-Haq in removing the Trustees and
seizing the properties of the trust without
due process of law was ultra vires of
Articles 23 and 24 of the Constitution.

1641
x. Relying on the time-honoured book
Muhammadan Law by Syed Ameer Ali,
Barrister Kamal Azfar urged that dedication
of property was known in Islam and the law
of Waqf had its origin with the Prophet
p.b.u.h. himself who declared that all human
actions come to an end with the death of an
individual except such benefactions as are
perpetual in their character. It was therefore
submitted that Trusts or Waqfs were
frequent during and after the lifetime of the
Prophet p.b.u.h. and consequently a Trust
cannot be acquired without compensation.
Reference was made to the Waqfs created
by Hazrat Umar R.A, Zubair bin Awwam
R.A, Hazrat Abu Bakr R.A and Saad bin
Abi Waqas. It was stated that the doctrine of
Waqf is interwoven with the entire religious
life and social economy of the Muslims.
Learned counsel for the petitioner, in
1642
support of his contentions stated that Fidak
was returned to the Ahl-e-Bait ultimately by
the Ummayad Caliph Umar bin Abdul Aziz.
It was therefore urged that the suit trust has
to be restored to the petitioners.

xi. Reference was also made to another oft-

quoted- book entitled Principles of
Muhammadan Law by D.F. Mulla as well as
Rule 890 of the Mejelle which states that "If
the property taken without leave is
corporeally existing, it must be returned, and
delivered to its owner, at the place where it
was taken."

PART-B

xii. Learned counsel for the petitioners then

1643
asked Maulana Sajid ur Rahman Siddiqui of
Jam Dar-ul-Uloom Karachi to address the
Court on the question that the impugned
Martial Law Orders are violative of the
Injunctions of Islam. The following points
were raised by the religious scholar:

a. Ayat No.58 of Sura 04 of Holy Quran

enjoins that trusts should be handed over to
its owners;

b. Ayat No.27 Sura 08 of Holy Quran

proclaims:-

"O you who believe,

do not be faithless to God
and His Apostle, nor

1644
 violate you trusts knowingly".

c. Ayat No.08 of Sura 23 is appreciative of

those persons who fulfil their trusts and
honour their promises;

d. Ayaat 32 through 35 of Sura 70, of Holy

Quran recounts the attributes of those
persons who will be spared the torture in
Hell and amongst them are the people who
are faithful to their trusts and covenant.

e. Ayat No.29 of Sura 04, Al-Nisa, of Holy

Quran enjoins not to devour the property of
others by unlawful means. It was urged that
except trade, inheritance and gift all other
modes of acquisition of property are against
the Injunctions of Islam. Since the properties

1645
of the petitioners were misappropriated so
the action was violative of this Injunction as
well.

f. It was urged on the basis of Ayat 128 of

Sura 07, of Holy Qur'an that the entire land
belongs to Allah. He gives to when He
pleases and hence it is unlawful to deprive
the owner of the property.

g. Ayat No.08 of Sura 05, of Holy Quran

was also relied upon to urge that Allah
commands the believers to be upright for
His sake and that the believers should be
bearer of witness with justice and the hatred
of a party should not incite you to act
inequitably. Be always just for such a course
is nearer to piety. It is a duty imposed by
Allah. This duty, it was maintained, was not
1646
fulfilled.

RIPOSTE

7. Learned Standing Counsel for the Federal

Government in a short reply to the points
urged on behalf of the petitioners stated that
he was unable to controvert the Injunctions
of Holy Quran relied upon by the religious
scholar on behalf of petitioner. On a Court
question whether the impugned Martial Law
Orders could be justified on the touchstone
of any Injunctions of Islam, the learned
counsel for Federal Government stated that
he could neither quote any Ayat from Holy
Qur'an nor any NASS from the plethora of
traditions of the Holy Prophet (p.b.u.h.)

1647
8. The following Ministries/Division in
response to notices issued by this Court
submitted para-wise statements/comments
which were duly verified and cleared by
concerned authority:-

1. Finance Division
2. Auditor General of Pakistan
3. Ministry of Religious Affairs
4. Ministry of Population Welfare
5. Ministry of Social Welfare & Special
Education
6. Ministry of Health
7. Ministry of Housing & Works
8. Ministry of Information and
Broadcasting

1648
All the above Ministries/Divisions, inter
alia, stated that: Ever since the promulgation
of MLO 21 of 1997 by the CMLA, MLO 26
of Zone `C' PO No.1 of 1978 and PO No.6
of 1979 the said trust is under the 7th
Schedule of the Constitution in terms of
Article 270-A of the Constitution. However,
this does not preclude the determination of
the list on the touchstone of Article 203-D of
the Constitution to examine and decide the
question whether or not the provisions under
challenge are repugnant to the injunctions of
Islam as laid down in the Holy Qur'an and
Sunnah of the Holy Prophet (p.b.u.h.). Such
a proposition is also ascertainable from the
Preamble of the Constitution. It was also
stated that Article 2-A of the Constitution
makes the Objectives Resolution a
substantive part of the Constitution.
Reference in this context to Articles 3, 4, 5,
1649
6, 20, 23, 24, 31, 37 and 38 was also made.

The above-mentioned Ministries/Divisions

further submitted following grounds in
support of their statements:-

"The averments herein do infringe upon

the provisions relating to "Trusts' as
ordained under the Injunctions of Islam.
The public welfare trust constituted by
late Zulfiqar Ali Bhutto, Prime Minister
of Pakistan was taken over by General
Zia-ul-Haq who had removed the elected
premier and embarked upon retracing the
act and steps taken by him for
motivations other than promoting the
legal and constitutional doctrines
germane to the welfare of the people of
Pakistan or Mohammadan law regulating
1650
 trust properties stand violated. Reference
to Qazilbash Trust case reported as PLD
1990 SC 99 which clearly states that
taking over trust under MLO 21 of
CMLA 1997 and rule 26 MLA Zone C
and P.O. 4 of 1978 and P.O. 6 of 1979
are contrary to the Injunctions of Islam."

The above mentioned Ministries/Divisions

unanimously supported the prayer of the'
petitioner, in following terms:-

"The claim of the petitioner is manifestly

just and proper and the declaration
sought legally sustainable as MLO's 21
of CMLA, 26 of MLA Zone `C' P.O. 4
of 1978 and P.O. of 1979 are ostensibly
repugnant to the Injunctions of Islam.
Consequently, the Peoples Foundation
1651
 Trust as originally registered with the
substitution of legal heirs of the deceased
trustees merits to be restored along with
properties and assets of the trust seize
taken over and controlled under afore
referred instruments. This Court has no
objection to return assets/trust property
etc. to the original/founder trustees or
their legal heirs of the deceased trustees."

THE JUDICIAL VIEW

9. The Hon'ble Chief Justice of Pakistan Mr.

Justice Iftikhar Muhammad Chaudhry, while
delivering his key note address in the
inaugural session of the National Judicial
Conference, 2010, held at the Supreme
Court Auditorium Islamabad, on 16th April,
2010, in his personal capacity as well as on
1652
behalf of the Superior Judiciary declared as
follows:

i. Each of the two components of the

profession of law, i.e. the Judges and the
lawyers is a very busy community. The
cycle of their engagements goes on and
on. Both the professions are noble and
respectable. All the Judges, and all the
lawyers, who work with a passion for
justice; who work with a passion to
ameliorate the sufferings of the litigant
public; who work to ameliorate the
suffering of women, the juveniles and
other prisoners in jails; who work to
ameliorate the suffering of the litigants
whose cases linger on for generations;
who work to ameliorate the suffering of
the litigants who travel from far-off -
distances to reach courts; who work to
1653
ameliorate the suffering of the litigants
whose, may be, lifetime earnings are at
stake on account of scrupulous
maneuverings of their opponents; and
who work to ameliorate the suffering of
the litigants whose, may be, lifetime
earnings are at stake on account of
scrupulous maneuverings of their
opponents; and who work to ameliorate
the suffering of the families of the poor
litigants--all such Judges and lawyers
earn for themselves a reward in this
world, and still a greater reward in the
world hereafter.

ii. The aim of formulating a National

Judicial Policy is to ensure adherence to
the Constitutional principles of equality
before law and equal protection of law. It
also aims at strengthening the role of
1654
Judiciary as an organ independent of the
Executive and Legislature.

iii. Article 2-A of the Constitution of

Pakistan envisages that the independence
of the judiciary shall be fully secured. It
also speaks of a democratic form of
Government guaranteeing all the
freedoms, equality, tolerance and social
justice in lines with the Islamic tenets.
The superior courts under the
Constitutional powers may strike down
any law inconsistent with the Injunctions
of Islam as laid down in the Holy Quran
and the Sunnah and the fundamental
rights as enshrined in the Constitution.
The Constitution invests the superior
courts with the power of judicial review
and inherent powers that may be
exercised to smooth away the inter-
1655
institutional/governmental irritants.

iv. The role of Judiciary is not that of an

opposition to the Legislature and the
Executive but that of a custodian and a
bastion of the Constitutional rights and
liberties of the citizens. An independent
judiciary sets and declares the
constitutional limits on the powers of the
State organs including the executive,
legislature and the courts. It supervises a
regime of the rule of law and not the rule
of men. The judiciary acts as a guardian
of the Constitution; therefore, it is
described as a citadel of justice. In a
democratic system, none of the three
organs i.e. the Executive, legislature and
the Judiciary is empowered to
assume/exercise unbridled powers. An
independent judicial system is a
1656
 prerequisite of a democratic society. The
independence of judiciary guarantees
improved law and order standards,
strengthened national security, better
economic development and social well-
being of the people."

This Conference was attended by the

Hon'ble Judges of the Supreme Court,
Hon'ble Chief Justice and Hon'ble Judges of
the Federal Shariat Court, Chief Justices and
Hon'ble Judges of the provincial High
Courts, members of the District Judiciary
and learned members of the Bar including
elected representatives of Bar Associations
and Bar Councils.

10. This speech reminds us of Ayat No.251

Sura 2, Al-Baqra, of Holy Quran, which,
1657
after recalling the story of defeat of Jalud
(the Midianites) at the hand of Talut
(Gideon) during the times of Syedna Daud
(David) A.S, proclaims as under:

So they routed them by the command of

Allah, and Daud slew Jalut, and Allah
gave him sovereignty and wisdom and
taught him of what He pleased. And had
not Allah repelled some people by other
people, the earth would indeed be full of
mischief, but Allah is the Lord of Grace
to all people.

EXAMINATION OF LAWS

11. We now take up examination of the

impugned instruments on the touchstone of

1658
Injunctions of Islam as visualized by Article
203D of the Constitution of Islamic
Republic of Pakistan. We propose
examining these provisions initially in the
light of various principles of legal import
enunciated in Holy Quran and Sunnah.

PRINCIPLE OF SHOORA

12. Ayat 38 of Sura 42 (Ash-Shoora) of

Holy Quran reads as follows:--

"And those who respond to their Lord

and keep up prayer, and their rule is to
take counsel among themselves, and
who spend out of what We have given
them. "

1659
This is an early Meccan revelation. At that
point of time when administration of the
affairs of State was not within sight, the
Muslims were being mandated, as usual, to
observe prayer and to spend from what
Allah had given them. Yet between these
two injunctions, which always go together in
the Holy Quran, is placed a third; and their
rule is to take counsel among themselves. It
is clear that even at that early period when
the Muslims had no important matter to
decide for which they might have stood in
need of counsel, yet between two
injunctions, which are the basis of Islamic
life, a third is inserted enjoining that, as a
rule, counsel should be taken. The wisdom
behind this injunction indicates that the
believers were being prepared for
transacting the momentous affairs of State
through Counsel in all matters connected
with national weal or woe. The use of the
1660
word AMR in this verse refers certainly to
the Islamic Kingdom, the affairs of which
must be transacted by Counsel. In this Islam
laid the basis of government by parliament,
and this God-given idea found a clear
practical expression in the early days of the
Caliphate, when Khalifa had to refer every
important affair to a Majli-e-Shoora. The
important questions whether the traditions of
the Holy Prophet (p.b.u.h.) have to be
recorded and whether the conquered
agricultural land was to be distributed
among the combatants or retained by State
for public welfare were referred to the
Council for debate and decision.

ii. Ayat 159, Sura 03 Ale-Imran, of Holy

Quran contains another Injunction about
Counsel-(SHOORA) Thus it is due to mercy
from Allah that you deal with them gently,
1661
and had you been rough, hard-hearted, they
would have dispersed from around you;
pardon them therefore and ask protection for
them, and take counsel with them in the
affair; so when you have (thus) determined,
then place your trust in Allah; Surely Allah
loves those who trust.

iii. In support of the above mentioned Ayaat

relating to mutual consultation we find that
Holy Quran at a number of places,
mentioned below, prompts the believers to
express themselves freely and fairly because
human beings have been invested with the
power of speech.

a. Ayaat 01 through 05 Sura 55, Ar-

Rahman:

1662
The Beneficent God,
Taught the Quran,
He created human beings,
Taught them the mode of expression.

The word Bayan, used in Holy Quran,

has a broad significance. It includes the
meanings: to express, unravel the hidden
realities etc.

b. Ayat 83 Sura 02 Al-Baqra:

And recall when We made a covenant

with the Children of Israel: "You shall
serve none but Allah and do good to
parents, kinsmen, orphans and the needy;
you shall speak kindly to people, and
1663
 establish Prayer and give Zakah
(Purifying alms). And yet, except for a
few, you turned back on this covenant,
and you are still backsliders.

c. Ayat 110 Sura 03 Ale-Imran of Holy

Quran:

You are now the best nation brought

forth for mankind. You enjoin what is
right and forbid what is wrong and
believe in Allah. Had the people of the
Book believed, it were better for them.
Some of them are believers but most of
them are transgressors.

d. Ayat 67 Sura 09 Al-Tawbah:

1664
 The hypocrites, be they men or women,
are all alike. They enjoin what is evil,
and forbid what is good, and withhold
their hands from doing good. They
forgot Allah, so Allah also forgot them.
Surely the hypocrites are wicked.

e. Ayat 01 through 04 Sura 96 Al-Alaq

of Holy Quran:

Read in the name of your Lord who

created; He created human being from a
clot, Read and you Lord is Most
Honourable, Who taught (to write) with
pen, taugh the human being what he
knew not.

f. Ayat 149 Sura 04, Al-Nisa concedes

1665
 the right of protest (speech in public) to
every aggrieved person. This right of
expression is extremely important
freedom recognized by Divine
commandment. To the same effect is
Ayat 01 Sura 58 Al-Mujadalah of Holy
Quran. It opens with the words:

"Allah has, indeed, heard the talk of her

who pleads with there concerning her
husband."

The Holy Quran at innumerable places

prompted its readers to think, ponder and
exert mental faculties for appreciation of
things and events around him. This process
is indeed a vehicle for advancement of
knowledge. At the same time Holy Quran
declares in Ayat 71 Sura 17, Bani Israel of
1666
Holy Quran that Allah has conferred dignity
on children of Adam. Dignity, freedom to
choose, empowerment and freedom to
express, freedom to lodge protest signify
that the affairs of people shall be governed
by consensus, consultation, debate and
dialogue. The Martial Law Orders issued by
an adventurer, without taking the vicegerent
(people) into confidence is blatant violation
of a number of Injunctions of Islam.

THE OBJECTIVES RESOLUTION

13. The Preamble of the Constitution of

Islamic Republic of Pakistan enshrines the
Objectives Resolution. It was moved by
Nawabzada Liquat Ali Khan, the first Prime
Minister of Pakistan and passed by the first
Constituent Assembly on 7th March, 1949.
1667
The third clause of this resolution reads as
follows:-

"Wherein the State shall exercise its

power and authority through the chosen
representatives of the people"

The opening clause of this resolution

declares:-

"Whereas sovereignty over the entire

Universe belongs to Almighty Allah
alone, and the authority to be exercised
by the people of Pakistan within the
limits prescribed by Him is a sacred
trust". (Emphasis Added)

1668
The impugned Martial Law Order is a clear
violation of the Objectives Resolution.

TRUSTS REVERT TO THE OWNERS

14. It is worth-noticing that Ayat 58 of

Chapters 4 Al-Nisa of Holy Quran makes a
pointed reference to the trusts in the
following terms : -

"Surely Allah commands you to make

over trust to those worthy of them (those
who are entitled to it) and that when you
judge between people, you judge them
with justice, surely excellent is that with
which Allah admonishes you. Allah is
All-hearing, All - seeing."

1669
This Ayat is a clear pointer to the fact that:

a. the trust property/assets (and public

offices) must be restored to the real
owners;

b. the affairs of government must be

assigned to those worthy of handling the
authority;

c. such recipients of power should

adjudicate matters between people with
justice;

d. those entrusted with authority should

be free from bias, and

1670
 e. that these commandments are from
Allah who is Seeing and Hearing.
Reference to the two Divine attributes
i.e. Seeing and Observing in this Ayat
indicates the importance attached to this
very commandment. He sees every one
in authority and He is listening to what
they say or what is being said to them by
the supplicant or is being said about
them. This Ayat is an instance where the
governors are being warned of their
duties to the governed and the verse that
follows (obey Allah, His Apostle and
those in authority) mentions the
obligation of the governed toward the
governors. The word trust as used in this
Ayat includes covenants. People are
enjoined to be true to their trusts.

f. Maulana Mufti Muhammad Shafi, in his

1671
voluminous work Maaraful Quran, a
commentary of the Holy Book (volume 2
pages 444-445 first edition while
commenting upon Ayat 58 of Sura Al-Nisa)
has narrated the historic event of conquest of
Macca. He recounts the story of Usman bin
Talha who was trustee - custodian of Holy
Kaaba. He used to open the door of House
of God on Mondays and Thursdays during
the Ayyaam-Jahiliya. Once, before Hijrat,
the Holy Prophet (p.b.u.h.) along with his
companions expressed the desire to enter the
House which wish was spurned by Usman.
The latter recalled that the Holy Prophet
(p.b.u.h.) on that occasion told him that a
day will come when you will see the key of
the House of God in my hand and I will
hand over the same to whom I desire.
Thereupon Usman retorted that in that case
it will be all doom, gloom and degradation
for the Quraish whereupon the Holy Prophet
1672
(p.b.u.h.) said No: that will be the day when
Quraish will become honourable and shall
flourish. Time passed and the Muslims
conquered Macca. Usman bin Talha was
summoned' by the Holy Prophet (p.b.u.h.)
when he presented the key of the House of
God to the Holy Prophet (p.b.u.h.) The
merciful conqueror while returning the key
to Usman proclaimed that this key shall
remain with Usman and his progeny till
eternity and he will enjoy the benefit of all
the gifts and presents that he or his progeny
receives in consideration of the service of
the House of God. Hazrat Umar R.A.
reported that this very Ayat was being
recited by the Holy Prophet (p.b.u.h.) on that
day which he had not heard before. It is also
reported that when Usman received back the
key the Holy Prophet (p.b.u.h.) reminded
him of that day when the had refused to
open the door for him and it was said that a
1673
day will come when this key will be in his
hand.

g. Learned counsel had also relied upon the

historical incident of the return of Fidk to
the action of Hazrat Umar bin Abdul Aziz
undoubtedly established the principle that
properties dedicated to a cause must be
restored even though considerable period
has elapsed. Rights of owners in the
properties do not die when the property is
confiscated, usurped or taken over by the
government. Rights descend upon the
progeny of the original beneficiary and may
be honoured by a successor government.

COVENANTS ARE SACRED

1674
15. Our Constitution is a social contract. It
enshrines certain conditions which people
have accepted and adopted. The ruling elite
takes oath under the Constitution to preserve
its sanctity. One who takes oath to preserve
and protect it cannot break it to the
detriment of entire nation. It is not like
breaking the oath of an individual whose
atonement is made possible by Islamic
Injunctions. Constitution does not provide
any expiation for the transgressors who were
under oath to preserve it. On the contrary
Constitution declares it to be a very serious
offence. In this background let us examine
Articles 4 and 5 of Constitution which
mandate as follows:-

4. (1) To enjoy the protection of law and

to be treated in accordance with law is
the inalienable right of every citizen,
1675
wherever he may be, and of every other
person for the time being within
Pakistan.

(2) In particular--

(a) no action detrimental to the life,

liberty, body, reputation or property of
any person shall be taken except in
accordance with law;

(b) no person shall be prevented from or

be hindered in doing that which is not
prohibited by law; and

(c) no person shall be compelled to do

that which the law does not require him

1676
 to do.

5. (1) Loyalty to the State is the basic

duty of every citizen.

(2) 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.

These Articles make it abundantly clear that

deviation from law has not to be
countenanced. This is an assurance to the
people of Pakistan that people in authority
shall treat them in accordance with law.
Each one is bound by these stipulations.

1677
16. In this view of the matter the following
tradition of the Holy Prophet PBUH
assumes significance:-

The Muslims are bound by the

conditions they accept a condition which
forbids what is lawful and permits what
has been made unlawful.

Jamay Tirmazi Volume 1, Tradition

No.1363

Resultantly the impugned Martial Orders are

clearly violative of the provisions of the
Constitution which could not have been
suspended. The Constitution does not
authorize even an adventurer to undertake
legislation. The principle enunciated by the

1678
Nass is that the conditions once stipulated
cannot be altered unilaterally through
extraneous intervention. The change of
conditions involves consent of both the
parties.

17. Ayat 9 of Sura 33, al-Mu'minun of Holy

Quran says:-

"Successful indeed are the believers who

are watchful of their trusts and
covenants."

18. The stipulated Martial Law Orders are

violative of the above mentioned Injunctions
of Islam because:

1679
 a. The name of the Trust was altered;

b. The objectives underwent a change;

c. The administrative machinery was

substituted for the original trustees;

d. The intrinsic rights of the appropriator

were hacked without lawful authority;
and

e. The wishes of the Dedicators as

regards the appointment of a Mutwalli
i.e., Managing Trustee have altogether
been altered.

1680
RIGHT OF APPEAL/REPRESENTATION

19. Islamic Injunctions and teachings grant

to every aggrieved person the freedom to
lodge protest. Every aggrieved person has a
right of representation. He is free to lodge an
appeal against an order affecting him
adversely and it is his right that his appeal
will be adjudicated upon without inordinate
delay by an independent tribunal. He can,
under no circumstances be stopped from
exercising his basic right. Reference may be
made to the following two Ayaats of Holy
Quran:--

i. Ayat No.148 Sura 4 Al-Nisa of Holy

Quran:

1681
 "Allah does not love the public utterance
of hurtful speech, unless (it be) by one to
whom injustice has been done."

ii. Ayat No.1 Sura 58 Al-Mujadilah (The

Pleading one) of Holy Quran:

"Allah indeed knows the plea of the

woman who pleads with you about her
husband and complains to Allah, and
Allah knows the contentions of both of
you; Surely Allah is Hearing, Seeing."

Ayat No.1 of Sura Mujadilah, quoted above,

has a reference to one Khaula, wife of Aus
bin Samit, who had been separated by her
husband on account of an old but a
degrading custom whereby the husband

1682
could, with impunity, exercise Zihar i.e. he
would compare the wife to the back of his
mother and thereby succeed in denuding her
of her marital status. The consequence of
this declaration was a total estrangement
between the spouses. The aggrieved women
henceforth was neither a wife nor a
divorcee. Her rights were held in abeyance.
Khaula, a genuinely aggrieved spouse,
injured on account of the prevailing but
inhuman custom, appeared before the Holy
Prophet (p.b.u.h.) and lodged her protest.
Her legal entity was as stake. Who was she?
Neither a wife nor a divorcee. She could not
withstand such a humiliating situation. In
fact she demanded review of the custom
which had the force of law. This is probably
the only instance in human history when a
time-honoured custom, having the force of
law, was reviewed by Almighty Allah on the
protest of a lady. Quick came the response
1683
through the medium of revelation. It is
significant that Quran, which is a source of
guidance till eternity, preserves this
particular incident of violation of human
right for the benefit of future generations.
This episode brings into prominence inter-
alia the following principles:

a. There exists in the aggrieved person

the unfettered right to lodge a protest or
prefer an appeal before a higher authority
with the object of seeking redressal of
grievance;

b. The authority hearing the appeal is

under obligation to decide the same;

c. The arbiter is required to give due

1684
weight to violation of human rights and
human dignity;

d. The authority may, where necessary,

impose a penalty upon the violator of
human rights (reference Ayat No.4 of
same Sura), and

e. Even a law can be amended/repealed

on account of a protest and

f. The right of an individual to initiate

proceedings cannot be circumscribed.

SAMEE AND BASEER

1685
20. The reference to Divine attribute of
Hearing and Seeing for well over four score
times in Holy Quran shows that the right of
an aggrieved person to lodge protest, appeal
or representation against the wrong doer
before a higher tribunal i.e., a person other
than the one whose order is to be challenged
has Divine sanction. The repeated reminders
by Holy Qur'an that Allah is Hearing and
Seeing is, on one hand, a permission to an
injured soul to initiate proceedings and on
the other hand a warning to the adjudicator
that Allah constantly watches the way
matters are being adjudicated upon. These
oft-repeated attributes of Allah i.e., Seeing
and Hearing, mentioned in the Holy Quran
are designed to act as guarantees. In other
words the rights and freedoms are
justiciable.

1686
21. The Constitution as well as legal
instruments in force in Pakistan, provide
ample remedies to aggrieved persons by way
of appeals, revisions, reviews. The
Constitution mandates that the Supreme
Court, Federal Shariat Court and the High
Courts shall have power to exercise original
and Suo Motu jurisdiction, and thereby
provide relief to aggrieved persons. The
superior Judiciary has, while interpreting
various provisions of law held that right of
appeal, representation, showcause notice is
inherent in Islamic teachings. An
instrument, having the force of law, which
purportedly denies the right of appeal etc. or
which does not provide for a show cause
notice will be deemed to be violative of the
Injunctions of Islam. Reliance is placed on
the following precedents:-

1687
a. Pakistan and others v. Public at Large
and others PLD 1987 Supreme Court 304

b. Pakistan through Secretary Ministry of

Defence v. The General Public PLD
1989 Supreme Court 6.

c. In re: The Civil Servants Act, (LXXI

of 1973) PLD 1984 Federal Shariat
Court 34.

d. Messrs Sadiq Brothers v. Appellate

Additional Commissioner, Income
Tax/Wealth Tax, Rawalpindi and another
2004 PTD 122. (Appeal ....Barring a
right of appeal offends against
Injunctions of Islam.

1688
 e. Dr. Muhammad Aslam Khaki and
others v. Government of Punjab and
others PLD 2005 Federal Shariat Court 3

22. Islam has conferred upon human beings

the freedom of expression. Grievances have
to be redressed. Any bar on this right is
negation of the Divine principle of human
dignity. A portion of the famous Khutba
known as Khutba-e-Ajeeba (a wonderful
sermon) and Khutba-e-Ghurra (an eminent
sermon) mentioned in Nahjul Balega as
Khutba No.86, delivered by Imam Ali R.A.
the fourth Caliph, is illustrative of this point:

"He has given ears to you so that you

may hear and preserve in. mind things
useful to you. He has given eyes to you
so that you may acquire such knowledge
1689
which will bring you out of the darkness
of ignorance and make you see the light
of reasoning and wisdom. He has also
given to you so many useful organs of
body, each of which is composed of
many parts, their functioning depends
upon their interdependence and their
symmetry; their forms and periods of
their utility, their co-ordinated action to
serve the body, their connection with a
heart which is properly fed (with blood)
and nourished, in fact this perfectly
expedient body and mind are the
blessings bestowed upon you besides so
many other bounties and thank-worthy
boons and protections. He then fixed a
limit of life for everyone of you and has
kept it a secret from you.

In the histories of the past nations and

1690
 lives of individuals, He provided
opportunities for you to study the foot-
prints on the sands of time and to be
warned of the consequences of evil
deeds. Lives of men, who were enjoying
themselves to their hearts' contents and
had perfect freedom of action, have such
useful lessons in them to teach. Just read
them over and over again and see how
quickly death overtook them. They did
not get time to satisfy their desires fully
before death put an end to their lives and
placed them beyond and further
possibility of fulfillment of those
wishes."

This sermon appears to be a commentary

upon the Ayat No.257 of Sura 2, Al-Baqra
which declares as follows:

1691
 "Allah is the Guardian of those who
believe, He brings them out of every
darkness into light. And those who
disbelieve, their guardians are the evil
ones; they bring them out of light into all
kinds of darkness. These are destined for
the Fire, and there shall they abide."

Human freedom has thus been guaranteed

by the Creator Himself for all times to come.

SUPREMACY OF RULE OF LAW

23. Holy Quran contains stern warning for

all those who are charged with the onerous
duty of regulating the affairs of State or
administering justice among people. The
arbiter cannot deviate from the principles

1692
laid down in the revelation. His decisions
must be in accord with the revealed rules.
Ayaat 44, 45 and 47 of Sura 5, Al-Maida of
Holy Quran declare such persons as Kafir
(unbeliever), Zalim (unjust) and Fasiq
(transgressor) who decide cases without
reference to principles laid down by reveled
text. Ayat 42 of this very Sura declares
further that Allah loves those who judge
people equitably.

24. Ayat 105 of. Sura 04, Al-Nisa of Holy

Quran reiterates the commandment that the
purpose of revealing the Book with truth
was that people should be judged by means
of precepts and values ordained by Allah for
human guidance. This verse closes with a
warning that the balance of justice must be
held equal irrespective of the fact that
parties are friends or foes. The following
1693
Ayaat of Holy Quran will illustrate the point
further:

i. Ayat No.135 Sura 04 Al-Nisa of Holy

Quran:

"O you who believe! Be upholders of

justice, and bearers of witness to Truth
for the sake of Allah, even though it may
be against yourselves or against your
parents and kinsmen, or the rich or the
poor, for Allah is more concerned with
their well-being than you are. Do not,
then, follow your own desires lest you
keep away from justice. If you twist or
turn away from (the Truth), know that
Allah is well aware of all that you do."

1694
 ii. Ayat No.90 Sura 16 Al-Nahl of Holy
Quran

"Surely Allah enjoins justice, kindness

and the doing of good to kith and kin,
and forbids all that is shameful, evil and
oppressive. He exhorts you so that you
may be mindful."

iii. Ayat No.08 Sura 05, Al-Maida, of

Holy Quran:

"O you who believe! Be upright, bearers

of witness for Allah, and do not let the
enmity of any people move you to
deviate from justice. Act justly, that is
nearer to God-fearing. And fear Allah.
Surely Allah is well aware of what you

1695
 do."

iv. Ayat No.152 Sura 06, Al Anaam, of

Holy Quran:

"And do not even draw near to the

property of the orphan in his minority
except in the best manner; and give full
measures and weight with justice, We do
not burden anyone beyond his capacity;
when you speak, be just, even-though it
concerns a near of kin; and fulfil the
covenant of Allah. That is what He has
enjoined upon you so that you may take
heed."

v. Ayat No.26 Sura 38, Suad, of Holy

Quran:

1696
 "(We said to him): "0 David, We have
appointed you vicegerent on earth.
Therefore, rule among people and do not
follow (your) desire lest it should lead
you astray from Allah's path. Allah's
severe chastisement awaits those who
stray away from Allah's path, for they
had forgotten the Day of Reckoning."

vi. Ayat No.15 Sura 42, Al-Shura, of

Holy Quran:

"(This being so, O Muhammad), call

people to the same religion and be
steadfast about it as you were
commanded, and do not follow their
desires, and say (to them): "I believe in
the Book Allah has sent down. I have
1697
 been commanded to establish justice
among you. Allah is our Lord and your
Lord. We have our deeds and you have
your deeds. There is no contention
between us and you. Allah will bring us
altogether. To Him all are destined to
return."

vii. Ayat No.29 Sura 07, Al-Aaraf, of

Holy Quran:

"Say to them (O Muhammad): "My lord

enjoins justice; and that you set your
faces aright at the time of every Prayer;
and that you call upon Him, exclusively
dedicating your faith to Him. You shall
return to' Him as you were created."

1698
 viii. Ayat No.42 Sura 05, Al-Maida, of
Holy Quran:

"They are listeners of falsehood and

greedy devourers of unlawful earnings.
If they come to you (for your
judgment), you may either judge
between them or turn away from them.
And were you to turn away from them
they shall not be able to harm you".

ix. Ayat No.09 Sura 49, Al-Hujraat, of

Holy Quran:

"If two parties of the believers happen

to fight, make peace between them. But
then, if one of them transgresses against
the other, fight the one that transgresses

1699
 until it reverts to Allah's command. And
if it does revert, make peace between
them with justice, and be equitable for
Allah loves the equitable."

x. Ayat No.09 Sura 55, Al-Rehman, of

Holy Quran:

"But weigh things equitably and skimp

not in the balance."

xi. Ayat No.126 Sura 16, Al-Nahl, of

Holy Quran:

"If you take retribution, then do so in

proportion to the wrong done to you. But
if you can bear such conduct with

1700
patience, indeed that is best for the
steadfast."

xii. The well-known tradition quoted by

Imam Bukhari shows that the Holy
Prophet p.b.u.h. stated that earlier
nations suffered fall because
punishments were not awarded to rich
and influential persons but poor people
alone would be convicted and
sentenced. The principle of
Discrimination/Pick and Choose in
dispensing justice must be eschewed.
This rule, of universal nature, has been
emphatically asserted in this tradition:

(Tradition No.1962 Vol. 3, Bukhari)

1701
xiii. The Khutba Hujjatul Wida contains
a specific injunction that the things
(assets, properties) lying in your custody
must be returned to their rightful owners.
The sermon also contains a warning that
Allah will certainly reckon your deeds-
Relevant portion of the Khutba reads as
under:

O people! Just as you regard this

month, this day, this city as sacred, so
regard the life and property of every
Muslim as a sacred trust. Return the
goods lying with you to the rightful
owners. Hurt no one so that no one may
hurt you. Remember that you will
indeed meet you Lord and that He will
certainly reckon your deeds.

1702
 xiv. Justice must prevail. Justice is an
absolute value. It cannot be
circumscribed by conditionalities. This
principle is evident from a careful
perusal of Ayat 153 Sura 06, Ayat 29
Sura 07 and Ayat 135 Sura 04.

Muslim are under an obligation to honour

the stipulated the covenant except when a
condition which converts a Halal
(permissible) in Haram (forbidden) or vice
versa. Hadith No.1363 Volume 1 Jame
Tirmazi,

ILLEGAL ACQUISITIONS ARE OF NO

LEGAL EFFECT

25. Ayat No.188 Sura 02, Al-Baqra and

1703
Ayat No.29 Sura 04, Al-Nisa of Holy
Quran forbid in very stern terms from
acquiring assets, interests, properties of
others without lawful means. Modes of
acquisition of property other than the
accepted customary or legally permissible
methods have been termed as Batil by Holy
Quran. The word Batil is antonym of Haq
i.e. truth. A thing which causes mischief
would be batil. It is significant to note that
Ayat No.29 of Sura 04, though of general
import, finds mention in that part of the
Sura which deals with protection of the
rights of women. And it so happened that
all the petitioner trustees, who were
affected by the impugned Martial Law
Orders, were at the time of promulgation of
such Orders, womenfolk.

26. Ayat 50 Sura 05, Al-Maida, of Holy

1704
Quran directs that people should be judged
according to the principles enunciated in
the revelation. A departure from this rule
has been termed repressible act of the times
of Ignorance.

LEGAL CAPACITY

27. According to Islamic Jurisprudence the

legal capacity of an adult is complete after
he/she has attained puberty as well as
Rushd. This capacity is the ability or
fitness to acquire and exercise rights and to
accept and perform corresponding duties
and obligations. Both the capacities i.e,
acceptance or acquisition of rights and the
performance of duties is termed in Islamic
Law as Ahliyyat al wajub and Ahliyyat al
ada respectively. This legal capacity or
1705
Dhimma, is complete and has legal effect.
It means the capacity to sue and be sued. It
means the capacity to lodge protest or file
an appeal as well the capacity of being
called upon to answer a charge. It is a
status without which an individual cannot
be treated as a legal, responsible entity. It
is a Divine gift and it cannot be limited by
a unilateral Order of any mundane
authority without recourse to Injunctions of
Islam. Any such attempt would be a
challenge to the Creator who conferred not
only dignity upon human beings but also
clothed them with legal capacity. It is on
account of this legal capacity that a human
being becomes a Mukallif i.e. an Obligee
and thus a subject of Khitab i.e.
communication from his Lord. A person
having legal capacity is answerable to God
and no one has the authority to deny a
person of the status conferred upon him by
1706
his Creator. The action of Chief Martial
Administrator whereby he denied through a
special Order the petitioners their rights to
supervise and control the Trust without of
course recourse to the provisions of law,
and thus the act of issuance of Martial Law
Order debarring the Courts of Pakistan
from providing legal remedy to the
petitioners is also violative of the principle
of Legal Capacity as well. Extraordinary
Power of an individual is death knell of
human freedom. Absolute power vests in
Allah Almighty alone.

PRINCIPLE OF WUSAAT

28. The impugned instruments are violative

of the following principles enunciated in
Holy Quran:--
1707
That no one shall be burdened beyond his
capacity.

It is mentioned at four following places:-

a. Ayat No.286 Sura 02 Al-Baqra:

"Allah does not lay a responsibility on

anyone beyond his capacity."

b. Ayat No.233 Sura 02 Al-Baqra:

"If they (i.e. the fathers) wish that the

period of suckling for their children be
completed, mothers may suckle their
1708
children for two whole years. (In such a
case) it is incumbent upon him who has
begotten the child to provide them (i.e.
divorced women) their sustenance and
clothing in a fair manner. But none
shall be burdened with more than he is
able to ear; neither shall a mother suffer
because of her child nor shall the father
be made to suffer because he has
begotten him. The same duty towards
the suckling mother rests upon the heir
as upon him (i.e. the father). And if
both (the parents) decide, by mutual
consent and consultation, to wean the
child, there is no blame on them; if you
decide to have other women suckle your
children there is no blame upon you,
provided you hand over its
compensation in a fair manner. Fear
Allah and know well that Allah sees all
that you do."
1709
c. Ayat No.152 Sura 06 Al-An'am:

"And do not even draw near to the

property of the orphan in his minority
except in the manner; and give full
measures and weight with justice, We
do not burden anyone beyond his
capacity; when you speak, be just, even
though it concerns a near of kin; and
fulfil the covenant of Allah. That is
what He has enjoined upon you so that
you may take heed."

d. Ayat No.42 Sura 07 Al-A `raf:

"As for those who believe and do good,

We do not impose upon any of them a
1710
 burden beyond his capacity. They are
the people of Paradise. And there they
shall abide."

PRINCIPLE OF ADAM HARJ

29. The Holy Qur'an lays down the principle

of Adam Harj i.e. Removal of Hardship in
the following Ayaat:-

a. Ayat No.06 Sura 05, Al Ma `idah:

"Believers! When you stand up for

Prayer wash your faces and your hands
up to the elbows, and wipe your heads,
and wash your feet up to the ankles. And
if you are in the state of ritual impurity,

1711
purify yourselves (by taking a bath). But
if you are either ill, or travelling, or have
satisfied a want of nature or have had
(intimate) contact with women and find
no water, then have recourse to clean
earth and wipe your faces and your
hands therewith. Allah does not want to
lay any hardship upon you; rather He
wants to purify you and complete His
favours upon you so that you may give
thanks."

b. Ayat No.78 Sura 22, Al-Hajj:

"Strive in the cause of Allah in a manner

worthy of that striving. He has chosen
you (for His task), and He has not laid
upon you any hardship in religion. Keep
to the faith of your father Abraham.
1712
 Allah named you Muslims earlier and
even in this (Book), that the Messenger
may be a witness over you, and that you
may be witnesses over all mankind. So
establish Prayer, and pay Zakah, and
hold fast to Allah. He is your Protector.
What an excellent Protector; what an
excellent Helper!"

PRINCIPLE OF TAISEER

30. The Principle of Ease i.e., Taiseer has

been enunciated by Holy Quran in the
following Suras:-

a. Ayat No.184 Sura 02, Al-Baqra:

1713
"Fasting is for a fixed number of days,
and if one of you be sick, or if one of you
be on a journey, you will fast the same
number of other days later on. For those
who are capable of fasting (but still do
not fast) there is a redemption: feeding a
needy man for each day missed.
Whoever voluntarily does more good
than is required, will find it better for
him; and that you should fast is better for
you, if you only know."

b. Ayat No.185 Sura 02, Al-Baqra:

"During the month of Ramadan the

Quran was sent down as a guidance to
the people with Clear Sings of the true
guidance and as the Criterion (between
right and wrong). So those of you who
1714
live to see that month should fast it, and
whoever is sick or on a journey should
fast the same number of other days
instead. Allah wants ease and not
hardship for you so that you may
complete the number of days required,
magnify Allah for what He has guided
you to, and give thanks to Him."

c. Ayat No.196, Sura 02, Al-Baqra:

"Complete Hajj and Umrah for Allah.

And if you are prevented from doing so,
then make the offering which is available
to you, and do not shave your heads until
the offering reaches its appointed place.
If any of you should have to shave your
head before that because of illness, or
injury to the head, then you should make
1715
redemption by fasting, or alms-giving, or
ritual sacrifice. And when you are
secure, then he who avails of Umrah
before the time of Hajj shall give the
offering he can A afford; and if he
cannot afford the offering, he shall fast
for three days during. Hajj and for seven
days after he returns home; that is, ten
days in all. This privilege is for those
whose families do not live near the Holy
Mosque. Guard against violating these
ordinances of Allah and be mindful that
Allah is severe in chastisement."

d. Ayat No.280 Sura 02, Al-Baqra:

"But if the debtor is in straitened

circumstance, let him have respite until
the time of ease and whatever you remit
1716
by way of charity is better for you, if
only you know."

e. Ayat No.92 Sura 04, Al-Nisa:

"It is not for a believer to slay another

believer unless by mistake. And he who
has slain a believer by mistake, his
atonement is to set free from bondage a
believing person and to pay blood-
money to his (that is, the slain person's)
heirs, unless they forgo it by way of
charity. And if the slain belonged to a
hostile people, but was a believer, then
the atonement is to set free from bondage
a believing person. And if the slain
belonged to a (non-Muslim) people with
whom you have a covenant, then the
atonement is to pay the blood-money to
1717
his heirs, and to set free from bondage a
believing person. But he who cannot
(free a slave) should fast for two
consecutive months. This is the penance
ordained by Allah. Allah is All-knowing,
All-Wise ".

f. Ayat No. 157 Sura 07, Al-A `raf:

"(Today this Mercy is for) those who

follow the ummi Prophet, whom they
find mentioned in the Torah and the
Gospel that they have. He enjoins upon
them what is good and forbids them what
is evil. He makes the clean things lawful
to them and prohibits all corrupt things
and removes from them their burdens
and the shackles that were upon them. So
those who believe in him and assist him,
1718
 and succor him and follow the Light
which has been sent down with him, it is
they who shall prosper."

g. Ayat No.04 Sura 58, Al-Mujadalah:

"And he who does not find a slave (to

free), shall fast for two months
consecutively before they may touch
each other, and he who is unable to do so
shall feed sixty needy people. All this is
in order that you may truly believe in
Allah and His Messenger. These are the
bounds set by Allah; and a grievous
chastisement awaits the unbelievers."

h. Ayaat 19, 20 Sura 80, Abasa of Holy

Quran:

1719
"Of a small life-germ; He created him,
them empowered him; Then (as for) the
way--He has made it easy for him."

i. The principle of Taiseer may be

illustrated from a ruling of the second
caliph when he did not enforce the had
penalty of amputation of hand for theft
during a widespread famine. He is also
reported to have imposed a ban on the
sale of slave-mother (ummal-walad).
Principle of Taiseer partakes of the
principle of Istehsan which is not only an
integral part of Shariah but an important
branch of Ijtehad. It is inspired by the
values and principles of Shariah. This
principle can also be deduced from the
following verses of Holy Quran:

1720
 j. Ayat No.55, Sura 39. Al-Zumr:

"And follow the best of what has been

sent down to you from your Lord."

The following traditions of the Holy Prophet

p.b.u.h. can be referred with convenience in
this regard:

k. What the Muslims deem to be good is

good also in the sight of Allah

l. Harm is neither inflicted nor tolerated

in Islam

1721
 m Allah loves to see that His concessions
are observed in the same way that His
strict laws (Azaim) are obeyed

n. The Prophet (p.b.u.h.) did not choose

but the easier of the two alternatives so
long as it did not amount to sin

(Reported by Hazrat Aisha R.A)

o. The best of your Deen is that which

brings ease to the people

These principles have provided for the

Islamic Law necessary means to encourage
flexibility and development of law for the
solution of ever increasing human problems.

1722
Avoidance of hardship is a salient feature of
the Islamic teachings.

PRINCIPLE OF TAKHFEEF

31. The Principle of Reduction of Burden

commonly known as Takhfeef finds mention
in Ayat 28 Sura 4, Al-Nisa:

"Allah wants to lighten your burdens, for

man was created weak."

This principle finds support from the

following tradition of the Holy Prophit:

Make thing easy; Do not create

1723
difficulties;

Give good tiding; Do not incite hatred.

(Tradition No.630 volume 5, Bukhari)

PRINCIPLE OF LEGALITY

32. The Orders under examination also

violate the Principle of legality. The
principle of legality is in fact supremacy of
rule of law. Supremacy of law has two clear-
cut objectives: al protection of human
freedoms, b/ limitation on the power of
persons who exercise authority on behalf of
the State. This concept pre-supposes the
existence of a legal rule before its violation

1724
can generalized. The rule has to be upheld in
all circumstances. This age old principle is
expressed in Latin as Nulla Crime Nulla
Poena Sine legs. The consequences of this
rule are that penal statutes have to be
followed strictly and that penal provisions
cannot become retroactive. In other words a
penalty can be imposed only if the
impugned action had been declared an
offence before the proposed action and
proceedings are initiated. Muslim Jurists
discovered this principle from the following
Ayaat of Holy Quran:-

a. Ayat No.38 Sura 08, Al-Anfal:

"(O Prophet), tell the unbelievers that if

they desist from evil, their past deeds
shall be forgiven and if they revert to
1725
their past ways, then it is well-known
what happened with the people of the
past.

b. Ayat No.15 Sura 17, Bani Israel:

"He who follows the Right Way shall do

so to his own advantage; and he who
strays shall incur his own loss. No one
shall bear another's burden. And never
do We send a Messenger (to make the
Truth distinct from falsehood)."

c. Ayat No.59 Sura 28, Al-Qasas:

"Your Lord would not destroy a town

until He had sent to its centre a

1726
 Messenger who would recite to them Our
verses. Nor would We destroy any town
unless its inhabitants were iniquitous."

On the basis of these Injunctions the Muslim

Jurists deduced the principles that an
impugned action cannot be termed as crime
unless it has legal sanction:

This is by now a universally acknowledged

principle. The American Jurisprudence has
introduced the "due process clause". No
criminal liability can be imposed without
fair notice in advance. Every arbitrary and
discriminatory action by state authority has
to be avoided. The Constitution of Pakistan
in Article 12 recognizes this principle in the
following words:

1727
 "(1) No law shall authorize the
punishment of a person-

(a) for an act or omission that was not

punishable by law at the time of the act
or omission; or

(b) for an offence by a penalty greater

than, or of a kind different from, the
penalty prescribed by law for that
offence at the time the offence was
committed.

(2) Nothing in clause (1) or in Article

270 shall apply to any law making acts
of abrogation or subversion of a
Constitution in force in Pakistan at any
time since the twenty-third day of

1728
 March, one thousand nine hundred and
fifty-six, an offence."

It is therefore clear that the impugned

Martial Law Orders, put into effect by force,
denied to the petitioners, the rights and
privileges available to them under the Trusts
Act, 1882, without following the principles
of Natural Justice or Principle of legality
action adverse to the interest of the
petitioner was taken. There was no legal trial
and the properties of the petitioners were
confiscated. The Impugned Orders are
therefore violative of the injunctions of
Islam referred to above.

REVOLUTIONS DONOT ALTER

TRUSTS

1729
33. The conquest of Mecca in January, 630
AD corresponding to Ramzan 08 A.H, is a
historic event. It has also established certain
principles of law. On the Political side a
silent bloodless revolution had effected a
change in the administrations. At this point
of time the restoration of key of the House
of Allah to Usman bin Talha established a
new principle in the Islamic Jurisprudence
that even a revolutionary change of
government will not alter the existing right
of a trustee to continue retaining the legal
office of trustee-ship which office shall
remain with the progeny of the trustee till
eternity. The said Usman was the custodian
and trustee of the Holy Kaaba and had on
one occasion" contumaciously denied to the
Holy Prophet (p.b.u.h.) the opportunity of
entering the Kaaba when he was in Mecca
and had not migrated yet to Yasreb. On the
event of conquest of Mecca, when Usman
1730
surrendered the keys of the House of God to
the Prophet of God (p.b.u.h.), a few senior
companions coveted the opportunity to be
entrusted with the sacred key and thus
become custodian or trustees of the house of
God. The Holy Prophet (p.b.u.h.) however,
restored the key to the said Usman. In this
view of the matter we are obliged to restore
the Trust to its rightful owners.

THE SEVENTH SCHEDULE

34. Learned counsel for the petitioner very

candidly stated that an objection could be
taken against him that since the Presidential
Order No.04 of 1978 finds mention in the
7th Schedule of the Constitution of Pakistan
so it is not amenable to the jurisdiction of
this Court. We are conscious of the fact that
1731
certain laws were mentioned in the 7th
Schedule and it was stated therein that these
law could be amended in the manner
provided for amendment of the Constitution.
This 7th Schedule' has nexus with Article
271A (Clause 6). It is abundantly clear that
only the procedure for amendment of these
laws has been mentioned in the 7th schedule
but these laws are not part of the
Constitution. In this view of the matter the
Federal Shariat Court has the jurisdiction to
examine any legal instrument On the
touchstone of Injunctions of Islam.
Moreover the recently promulgated
Constitution (Eighteenth Amendment) Act,
2010 has, by virtue of section 91 (b)
substituted clause 6 of Article 271A of the
Constitution with the following new clause:-

"(6) The laws referred to in clause (1)

1732
 may be amended by the appropriate
Legislature in the manner provided for
amendment of such laws".

This clearly means that the laws referred to

in clause (1) may be amended by
appropriate Legislature in the manner
provided for amendment of such laws. The
jurisdiction of this Court is not restricted to
the manner in which the laws under
examination are amended. The jurisdiction
vests in this court to examine every
instrument having the force of law on the
touch stone of Injunctions of Islam.

STATUS OF IMPUGNED ORDERS

35. The impugned Martial Law Orders are

1733
consequently of no legal effect as these
instruments suffer on account of following
legal infirmities:

i. The impugned Orders, when examined

on the touchstone of above mentioned
Injunctions of Islam are found utterly
deficient. The Orders under survey are
repugnant to a number of Injunctions of
Islam.

ii Action adverse to the interests of

petitioners was taken against the
petitioner trustees and they were
penalized and forced to run from pillar to
post when there was neither any
irregularity nor any complaint nor breach
of any legal provision whatsoever.

1734
iii. Neither any show-cause notice was
served upon the petitioner trustees nor
were the petitioners asked to submit
explanation to one or more specific
charges before the action of confiscation
of property by Chief Martial Law
Administrator. A penalty can be imposed
only if an action is covered by the
mischief of a offence which has been
declared an offence before the action
complained of was committed.

iv. The petitioners were denied the right

of appeal or representation before any
independent tribunal. The lawfully
established Constitutional Courts were
debarred, by naked force, from
adjudicating upon petitions moved by
petitioners against Martial Law Orders
and Authorities, though the Courts
1735
continued functioning throughout the
country and dispensed justice in
accordance with law. The Martial Law
Orders proceeded to usurp the lawful
jurisdiction of Courts in the case of a
legal person.

v. During the pendency of Constitution

Petition No. 501 of 1977 of the
petitioner-trustees in the High Court of
Sindh at Karachi, the Chief Martial Law
Administrator through an arbitrary
executive fiat issued Martial Law Order
No.21 on 17-10-1977 against the
fundamental principles of Islam. The
lawfully constituted court was stopped
from calling in question the decree of the
Martial Law Administrator. Clause 3 of
the impugned Order proclaimed as
under:
1736
 "This order shall have effect
notwithstanding anything contained
in the Peoples Foundation Trust Deed
of 9th day of August, 1974 as
amended from time to time, or in any
law including a Martial Law
Regulation or a Martial Law Order or
other instrument having the force of
law or in any contract or an
agreement and shall not be called in
question in or before any Court
including the Supreme Court and a
High Court. "

vi. The four impugned Martial Law

Regulations were neither promulgated by
chosen representatives of the people nor
were these instruments issues under the
umbrella of the Constitution. The
1737
Constitution is the only legal document
which determines the forum as well as
the procedure for the promulgation of
laws;

vii. There was consequently no debate,

consultation, counsel or consensus by
constitutionally recognized institutions
before issuance of the Orders under
examination;

viii. The impugned Martial Law Order

were promulgated without recourse to
she provisions of section 92 of the Code
of Civil Procedure, 1908 and Chapter 2
and 4 of the Trust Act 1882 which were
existing laws in terms of constitutional
provisions. The Constitution and laws of
land do not authorize an adventurer to
1738
override the provisions of the Code of
Civil Procedure, 1908 and or Trust Act.
1882 and take punitive action against a
legal entity over and above the
prescribed course. These laws were in
existence and fully operative in 1977
when the impugned Orders were
promulgated

ix. The impugned orders were

promulgated only to punish one
particular person and no other Trust,
duly registered under the Trust Act, in
Pakistan was either taken over or its
nomenclature changed.

x. The element of Bias and bad faith

cannot be ruled out in this case. The
person issuing the impugned regulations
1739
was also the person responsible for the
over throw of the Government of
Zulfikar Ali Bhutto and order his
immediate arrest. General Muhammad
Zia-ul-Haq himself decided unilaterally
to take over the trust property of the
family of Zulfikar Ali Bhutto. So long as
General Zia-ul-Haq lived he saw to it
that the petitioners are denied every
possible remedy to challenge his
arbitrary and unilateral action of take
over of the trust. As a matter of last
resort the General Muhammad Zia-ul-
Haq amended the Constitution and added
7th Schedule which declared that the
Zulfikar Ali Bhutto Trust and Peoples
Foundation Trust (Renaming and
Administration) Order, 1978 (P.O. No.4
of 1978) could be amended in the
manner provided for the amendment of
Constitution. There was thus an
1740
intentional act to create insurmountable
hurdle in the way of petitioners. This is
against the principle of Taiseer of
Islamic Jurisprudence. It has also been
urged that that venom of General
Muhammad Zia-ul-Haq was so intense
that he did not permit the petitioners
even to attend burial ritual of Zulfikar
Ali Bhutto, whose dead body was
secretly flown to Larkana while the
petitioners were kept in confinement
elsewhere. In this view of the matter the
only inference is that the Martial Law
Regulations were not motivated with fair
intentions. Bias is the paralysis, complete
or partial, of judicious faculties and a
person who is personally interested
cannot be arbitrator according to Islamic
provision. The law demands
transparency Justice should not only be
done but seen to be done. The aggrieved
1741
parties and people should be satisfied
that the action taken did not lack bona
fides. Justice and laws weld the broken
ties. They do not cut asunder human
freedoms. Justice is a Divine attribute. It
is always pro-people. Laws and justice
cannot be anti-people.

xi. The initial action of the Chief Martial

Law Administrator in issuing Martial
Law Order No.21 dated 17th October,
1977 whereby the Peoples Foundation
Trust created by late Zulfiqar Ali Bhutto,
the elected Prime Minister of Pakistan,
was taken over after deposing him
through a Military coup and the
subsequent actions by way of issuance of
three other impugned Orders to carry out
the errand mentioned in MLA Order 21
whereby the lawful trustees, by show of
1742
naked force were debarred from
exercising their rightful statutory and
religions duties, obligations and
functions, which were otherwise
safeguarded by The Trust Act, 1882 and
the Code of Civil Procedure 1908 and
further the act of seizing all the assets,
records and moneys of the Trust was
taken in utter violation of the Injunctions
of Islam.

xii. Section 92 of the Code of Civil

Procedure, 1908 read with Chapters 3
and 4 of The Trusts Act, 1882 provide a
forum for enquiring into and taking
action against the trustees. The Martial
Law Order bye-passed these legal
provisions which, under Article 227 of
the Constitution, are presumed to be not
violative of the Injunctions of Islam.
1743
Neither the Council of Islamic Ideology
nor the Federal Shariat Court had ever
held the said provisions of the Code of
Civil Procedure or the Trusts Act, 1882
to be repugnant to the Injunctions of
Islam. Unless these two institutions,
created by the Constitution, declare any
law or a provision of Law to be averse to
the Injunctions of Islam, the presumption
is that all existing laws are in conformity
with Islamic principles. The laws have to
be obeyed, observed and implemented.
No one is above law.

xiii. Article 24 of the Constitution of

Islamic Republic of Pakistan mandates in
unambiguous terms that no person shall
be deprived of his property save in
accordance with law. The property of the
petitioners was not taken over for a
1744
limited period to exclude it from the
protection contemplated by Article 24
ibid. The action of Chief Martial Law
Administrative was clearly violative of
Article 24 of the Constitution.

xiv. Promulgation of Martial Law Order

No. 21 dated 17-10-1977 by Chief
Martial Law Administrator targeted only
one Trust out of innumerable Trust
operating in the Country. It therefore
created a divide amongst the various
Trusts functioning all over Pakistan.
Such an instrument which discriminates
among the equals is void ab initio as it
offends various provisions of
Constitution and law. Hence it is ultra
Vires of various provisions of
Constitution and law including Articles
4, 23 and 25 of the Constitution.
1745
xv. The procedure of take over of the
Trust adopted by General Muhammad
Zia-ul-Haq was alien to the domain of
law. One man cannot combine in himself
the status of a complainant, a grabber as
well as an arbitrator and an executor.
Such an act has no sanction in Islamic
teachings. No Jurisprudence from any
Jurisdiction in this globe approves such a
unilateral action. Ayat 115 of Sura 04,
Al-Nisa, forbids following a path other
than the path of believers. The path of
believers is paved with consensus, mercy
and accommodation. This aspect of the
case is violative of the Injunctions of
Islam which vouch-saves transparency in
the administration of justice.

xvi. General Assembly of the United

1746
 States had proclaimed Universal
Declaration of Human Rights which was
accepted by the Members State. Article 8
of this declaration declares:

Everyone has the right to an effective

remedy by the competent national
tribunals for acts violating the
fundamental rights granted him by
the constitution or by law.

Article 17 of the' declaration declares as

under:-

"1. Everyone has the right to own

property alone as well as in association
with others.

1747
 2. No one shall be arbitrarily deprived
of his property. Article 19 of the
declaration is in. the following words:

"Everyone has the right to freedom

of opinion and expression; this right
includes freedom to hold opinions
without interference and to seek,
receive and impart information and
ideas through any media and
regardless of frontiers." (Emphasis
Added)

These three above mentioned principles

form part of Universal Jurisprudence and
have to be kept in view by the Legislature
Executive and Judiciary of any State.

1748
xvii. The following tradition of are
Holy Prophet (p.b.u.h.) makes it
incumbent upon every Judge must
declare every wrong a illegal action as
of the no legal effect:

"It has been narrated on the

authority of Umm Salama that the
Messenger of Allah (may peace be
upon him) said: In the near future
there will be Amirs and you will like
their good deeds and dislike their
bad deeds. One who sees through
their bad deeds (and tries to prevent
their repletion by his hand or
through his speech), is absolved
from blame, but one who hates their
bad deeds (in the heart of his heart,
being unable to prevent their
recurrence by his hand or his
1749
 tongue), is (also) safe (so far as
God's wrath is concerned). But one
who approves of their bad deeds and
imitates them is spiritually ruined.
People asked (the Holy Prophet):
Should not we fight against them?
He replied: No, as long as they say
their prayers. (Sahih Muslim
(English Translation) Vol.III, Pages
1032-1033, Hadith No. 4569)."

xviii. In this view of the matter, the four

impugned Martial Law Orders are void,
ineffective, without lawful authority
being repugnant to the above-mentioned
Injunctions of Islam.

BENEFICIENT LEGISLATION

1750
36. (a) The impugned .Martial Law Orders
are also violative of the principle
enunciated in Ayat No.17 Sura 13, Al-Ra'd
of Holy Quran which states:

"Allah sends down water from the

heavens and the river-beds flow, each
according to its measure, and the torrent
carries along a swelling scum. In like
manner, from that metal which they
smelt in the fire to make ornaments and
utensils, there arises scum like it. Thus
does Allah depict truth and falsehood.
As for the scum, it passes away as
dross; but that which benefits mankind
abides on the earth. Thus does Allah
explain (the truth) through examples.

The principle of beneficent legislation

1751
 is thus clearly enunciated in this Ayat.
No legislation or even an Executive
Order which is not for the benefit of
people can hold field according to this
injunction.

(b) The impugned orders are also violative

of the following principles established at
the time of the conquest of Mecca. Another
principle in the domain of legislation and
administration of justice is that if the law-
giver or the arbiter happens to be a person
who is either personally aggrieved by the
opposite party or who has played a
successful part in bringing about a change
in the government through revolution or
conquest to the detriment of the opposite
party he shall then neither be an arbiter in
the cause of his opponents nor shall he pass
any order to the detriment of his
1752
adversaries. This principle also finds
support from Ayat No.04 Sura 48,
Muhammad, wherein only two options are
given as regards the fate of the defeated foe
i.e. the prisoners of war should either be
freed as an act of grace or released after
payment of ransom. The option of social,
political, economic or physical murder is
not available at all.

PRECEDENT LAW

37. In the famous case of Nusrat Bhutto,

which was also initiated by petitioner No.1
and is reported as PLD 1977 Supreme
Court 657 the Supreme Court of Pakistan,
it was held as under:

1753
 "That, accordingly, the superior Courts
continue to have the power of judicial
review to judge the validity of any act
or action of the Martial Law Authorities
if challenged in the light of the
principles underlying the law of
necessity as set out in this judgment.
Their powers under Article 199 of the
Constitution thus remain available to
their full extent, and may be exercised
as heretofore, notwithstanding anything
to the contrary contained in any Martial
Law Regulation or Order, Presidential
Order or Ordinance; and

38. In the case of Sindh High Court Bar

Association v. Federation of Pakistan, PLD
2009 Supreme Court 879, this very finding
was reaffirmed at page 1001.

1754
39. Martial Law Regulation No. 115
known as Land Reforms Regulation was
the subject-matter of examination by the
Federal Shariat Court in the case of
Qazalbash Waqf and others vs. Chief Land
Commissioner, Punjab, Lahore and others
reported as PLD 1990 Supreme Court 99. It
was held by the Shariat Appellate Bench of
the Supreme Court that the Federal Shariat
Court as well as the Shariat Appellate
Bench of the Supreme Court have the
jurisdiction and the powers under Chapter
3-A of Part VII of the Constitution to
examine Martial Law Regulation and to
decide whether or not the provisions thereof
are repugnant to the Injunctions of Islam. In
that case certain provisions of the
regulation were in fact held to be violative
of the Injunctions of Islam. We are
therefore in no doubt as regards our
jurisdiction to examine Martial Law Orders
1755
impugned in this petition.

40. The essence of Ayaat Nos.62 and 63 of

Sura 4, Al-Nisa and Ayat No.114 of Sura
11- Hud, of Holy Quran, is that there is no
use referring the matter to a tyrant for its
resolution. The petitioners having been
debarred by an absolute ruler through
specially implemented Orders from seeking
redress from the High Court of Sindh,
ultimately decided to make a petition in
this court. The significant feature of the
jurisdiction of this Court is that law of
limitation does not apply to these
proceedings. Any citizen can challenge any
provision at any time on the touchstone of
Injunctions of Islam.

41. It would be advantageous to refer to

1756
some of the articles of Cairo Declaration
on Human Rights in Islam at this juncture
as they are relevant to the subject under
consideration. This Declaration was adopted
and issued at the Nineteenth Islamic
Conference of Foreign Ministers of the
Member States of the Organization of
Islamic Conference on 5th August, 1990:

"Article 8:

Every human being has the right to

enjoy his legal capacity in terms of both
obligation and commitment. Should this
capacity be lost or impaired, he shall be
represented by his guardian.

Article 15:

1757
(a) Everyone shall have the right to own
property acquired in a legitimate way,
and shall be entitled to the rights of
ownership, without prejudice to oneself,
others or to society in general.
Expropriation is not permissible except
for the requirements of public interest
and upon payment of immediate and
fair compensation.

(b) Confiscation and seizure of property

is prohibited except for a necessity
dictated by law.

Article 16:

Everyone shall have the right to enjoy

1758
 the fruits of his scientific, literary,
artistic or technical production and the
right to protect the moral and material
interests stemming therefrom, provided
that such production is not contrary to
the principles of Shari'ah.

Article 19:

a) All individuals are equal before the

law, without distinction between the
ruler and the ruled.

b) The right to resort to justice is

guaranteed to everyone.

c) Liability is in essence personal.

1759
d) There shall be no crime or
punishment except as provided for in
the Shari'ah.

e) A defendant is innocent until his

guilt is proven in a fair in which he
shall be given all the guarantees of
defence.

Article 22:

a) Everyone shall have the right to

express his opinion freely in such
manner as would not be contrary to the
principles of the Shari'ah.

1760
b) Everyone shall have the right to
advocate what is right, and propagate
what is good, and warn against what is
wrong and evil according to the norms
of Islamic Shari'ah.

c) Information is a vital necessity to

society. It may not be exploited or
misused in such a way as may violate
sanctities and the dignity of Prophets,
undermine moral and ethical values or
disintegrate, corrupt or harm society or
weaken its faith.

d) It is not permitted to arouse

nationalistic or doctrinal hatred or to do
anything that may be an incitement to
any form of racial discrimination.

1761
 Article 23:

a) Authority is a trust; and abuse or

malicious exploitation thereof is
absolutely prohibited, so that
fundamental human rights may be
guaranteed.

b) Everyone shall have the right to

participate, directly or indirectly in the
administration of his country's public
affairs. He shall also have the right to
assume public office in accordance with
the provisions of Shari'ah.

42. The impugned Martial Law Orders are

also repugnant to the five basic values of
Islam which are commonly known as

1762
Maqasid-e-Shariah. Reference Muhammad
Aslam Khaki versus State PLD 2010 FSC 1
at page 106 wherein paragraph 85K reads as
follows:

K. "Another reason that has weighed

with us is that according to Islamic
teachings the Divine revelation is
purpose-oriented. Muslim Jurists have
recognized a few Objectives of Shariah,
known as Maqasid-e-Shariah. These
objectives are in fact guarantees for the
betterment of humanity. The five basic
principles or the five values/five
Maqasid-e-Shariah are as follows:-

(i) Preservation of Deen (Religion)

1763
 (ii) Preservation of Intellect

(iii) Preservation of Life

(iv) Preservation of Property and

(v) Preservation of Progeny

The second value i.e. preservation of

Intellect (Tahafaz-e-Aql) is not possible
without education for which reading and
writing is the minimum requirement.
Consequently any prohibition on reading
and writing material would be
tantamount to the basic philosophy of
Islam. It is a Deen wherein the first word
of the first revelation is IQRA i.e,

1764
 READ, Denial of reading and wring
could be a denial of a fundamental
injunction of Islam:

"Thus does Allah make His

commandments manifest and clear for
you that you may reflect"

Ayat 220 Sura 2 (Al-Baqra)

The fourth guarantee mentioned therein is

the preservation of property of individuals.
It is therefore abundantly clear that without
recourse to legal provisions no one can be
deprived of his property nor can he/she be
restrained from pursuing remedies from the
Courts duly established under law. Any
attempt to deny a rightful owner from the

1765
exercise of his right over the property or
denial to pursue remedies would be struck
down as being repugnant to the Injunctions
of Islam.

43. The primary object of examination of

laws by the Federal Shariat Court under
Article 203D of the Constitution is to uphold
the Injunctions of Islam as enunciated in
Holy Quran and Sunnah of the Holy Prophet
(p.b.u.h.). The meaning and scope of the
term Islam is establishment of peace which
is possible only if Justice prevails in the
society. Justice is a permanent value
according to a number of Injunctions of
Holy Quran. Adl is an attribute of Allah and
He loves justice. The interests of the nation
are best served when the Executive,
Legislative and Judicial machinery of the
State adheres to the principles of Justice and
1766
fair play i.e. Adl and Ehsan. More
particularly when the rights of citizens are
involved. The rights and freedoms of
individuals are guarded by law, the
Constitution and above all the Injunctions of
Islam. Justice among people, though a
purely mundane activity, has been declared
an act of piety in the estimation the Lord
Creator. The question of non-adherence to
the legal provision under the garb of
impugned Martial Law Orders which
resulted in the mutilation of basic rights of
petitioners has arisen in this petition which
calls for a verdict of the Federal Shariat
Court in the light of teachings of Islam. We
are constrained to observe that
notwithstanding God gifted rights, duly
guaranteed by law and Constitution, the
petitioners were denied their share by
Martial Law Authority with the result that
the aggrieved persons had to suffer
1767
additional agony of protracted litigation. It is
not the first time that Martial Law Orders
mutilated rights of individuals in the Islamic
Republic of Pakistan. It is time the judicial
organ of the State refuse to accept such
arbitrary provisions which are promulgated
by adventurers under the garb of Martial
Law.

44. Before parting with the discussion

undertaken in this judgment we would take
this opportunity of referring to a few
passages from the historic letter of Imam Ali
R.A. addressed to Malik-e-Ashter, the
Governor of Egypt. This letter is a statement
of principles of good governance and
administration of justice as established by
different Injunctions of Islam:

1768
"Malik! you must never forget that if you
are a ruler over them then the Caliph is
the ruler over you and God is the
Supreme Lord over the Caliph. And the
reality is that the Caliph has appointed
you the Governor and tried and tested
you through the responsibility of this
rulership over them. Never think of
raising yourself to such a false prestige
that you dare declaring war against God.
Because you cannot ward off His
Punishment and Revenge and you can
never be free from the need-of His
Mercy and Compassion:

"Do not feel ashamed to forgive and to

forget. Do not hurry over punishments
and do not be pleased and proud of your
power to punish: Do not get angry and
lose your temper quickly ovey the
1769
mistakes and failures of those over
whom you rule. On the contrary, be
patient and sympathetic with them.
Anger and desire of vengeance are not
going to be of much help to you in your
administration.

"Never say to yourself "I am their Lord,

their ruler and all in all over them and
that I must be obeyed submissively and
humbly ". Because such a thought will
unbalance your mind, will make you
vain and arrogant, will weaken your faith
in religion and will make you seek
support of any power other than that of
God (perhaps that of your party or of
your Government). If you ever feel any
pride or vanity on account of your sway
and rule over your subjects then think of
the supreme sway and rule of the Lord
1770
over the Universe, the extent of His
creations, the supremacy of His Might
and His Control over you which is more
dominating than you can ever achieve
yourself over anything around you. Such
thoughts will cure your mental weakness,
will keep you away from vanity and
rebellion (against God), will reduce your
arrogance and haughtiness and will take
you back to the sanity which you
arrogance and haughtiness and will take
you back to the sanity which you had
foolishly deserted.

"Take care, never think of bringing

yourself in level to God, never think of
matching our power with Him and
contesting His, Glory, and never pretend
that you possess might and power like
Him, because the Mighty Lord will
1771
 always humble pitiless tyrants and will
degrade all pretenders of His Power and
Might."

Lastly we would be relying on Ayat No.1

Sura 14, Ibrahim of Holy Quran which
addresses, in particular, all those who
administer the affairs of State including
judiciary.

"Alif. Lam. Ra. This is a Book which We

have revealed to you that you may bring
forth mankind from every kind of
darkness into light, and direct them, with
the leave of their Lord, to the Way of the
Mighty, the Innately Praiseworthy."

CONCLUSION

1772
45. As a consequence thereof, all the steps
taken, actions suffered, and all orders passed
by any court, tribunal or any authority
including Martial Law Establishment, under
any of the impugned Orders, are also
declared repugnant to the aforementioned
Injunctions of Islam, and thus never to have
existed in the eyes of law and resultantly of
no legal effect. The presumption would be
that the situation that prevailed immediately
before 17th October, 1977 i.e. the date of
issuance of Martial Law Order No. 21 of
1977 is still continuing.

VERDICT OF COURT

46. As a result of examination of the four

impugned Martial Law II Orders we hereby
1773
declare that:

(i) Martial Law Order NO.21 dated 17th

October 1977;

(ii) Martial Law Order No.26 dated 28th

September, 1977 issued by Martial Law
Administrator Zone "C".

(iii) President's Order No.4 of 1978 dated

26th March, 1978;

(iv) President's Order 6 of 1979 dated

28th February, 1979 are in entirety
repugnant to the above mentioned
Injunctions of Islam. The decision of this
Court regarding the afore-mentioned

1774
 impugned Martial Law Orders shall take
effect from the date of announcement of
this judgment/decision.

M.A.K./16/FSC Order
accordingly

1775
PAKISTANI PROVINCIAL HIGH
COURTS ON HUMAN RIGHTS IN
ISLAM

1776
 2011 P L C (C.S.) 1259
[Islamabad High Court]
Before Muhammad Anwar Khan Kasi, J
Ms. FARAH NAZ, ASSISTANT
REGISTRAR, QUAID-I-AZAM
UNIVERSITY, ISLAMABAD
Versus
QUAID-I-AZAM UNIVERSITY,
ISLAMABAD through Registrar and 2
others

Writ Petition No.675 of 2011, decided on

14th March, 2011.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---

Promotion---Statutory body---Petitioner
was Assistant Registrar in the University
1777
which was a statutory body---Grievance of
petitioner was that despite her being senior
to respondent, she had been ignored for
selection against the post of Deputy
Registrar in next higher grade---Validity---
Policy of statutory body should not be in
conflict with fundamental rights for ulterior
motives or mala fide---Competent authority
was under obligation to determine
eligibility of employees for grant of higher
grade---It was also prime obligation of the
functionaries to redress grievance of their
subordinates and efforts should be made to
bring out an egalitarian society based on
Islamic concept of fairplay and social
justice and authorities should never be a
reason to create unnecessary hardships or
unrest among the employees---Post in
question was to be filled on promotion
basis out of the existing employees and,
therefore, selection of respondent was
1778
arbitrary---High Court declared the placing
of name of respondent for promotion
against the post of Deputy Registrar in
supersession of petitioner, as illegal,
unjurisdictional and against the principles
of promotion policy---Petition was allowed
accordingly.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction,

exercise of---Scope---Promotion---
Principles---Whenever there is a mala fide
or discriminatory action leading to violation
of constitutional guarantees, the
constitutional courts have ample authority
to interfere for redressal of such grievance--
-Law in any case has to be geared properly
and injustice in the form of supersession
has to be curbed, so that people may not
1779
have a general sense of deprivation or
discomfort otherwise there has to be a
chaos in the society and people lose
confidence in all institutions---Like all
other modern Constitutions, the
Constitution of Pakistan emphasizes upon
fundamental rights and such rights in any
case have to be provided by the courts as
guardians of citizens---Provision of Art.199
of the Constitution empowers the court to
exercise jurisdiction in matters where merit
is being ignored---In any case merit-cum-
seniority has to be recognized.
Sheikh Riaz-ul-Haq for Petitioner.
Muhammad Munir Preacha along with
Samiullah Khan and Humayun Khan,
Assistant Registrar, Quaid-i-Azam
University, Islamabad for Respondents.
Date of hearing: 11th of March, 2011.

1780
JUDGMENT
MUHAMMAD ANWAR KHAN
KASI, J.--- Through this writ petition, the
petitioner challenges her supersession by
the respondents Nos.1 and 2 as she being
the senior most Assistant Registrar has
been ignored for selection against the post
of Deputy Registrar in BPS-18.
2. It is her case that in response to an
advertisement by the Quaid-i-Azam
University, she applied for the post of
Assistant Registrar as she had the required
qualification of master's degree and four
years teaching/administrative experience of
the education department. Her qualification
and experience was considered and she was
selected on merit vide order dated 28-8-
2006, while she joined the university on
4-9-2006. Since then her performance had
been up to the mark and there had never
been any complaint or inquiry against her
1781
and, therefore, she is entitled for the
promotion against the vacant post of
Deputy Registrar as she fulfils the
qualification of master's degree and eight
years experience.
3. Her grievance is that the respondent
No.3, being junior to her is being
considered for the post of Deputy Registrar
and the management has decided to place
his name in the forthcoming meeting of
syndicate. She has, therefore, prayed for the
issuance of a writ against the selection of
respondent No.3 for appointment as Deputy
Registrar and an action in accordance with
law with respect to appointment of Deputy
Registrar.
4. The respondents Nos.1 and 2 contested
the petition by filing parawise comments,
wherein maintainability of the petition was
challenged on the point of jurisdiction and
being premature as no decision has yet been
1782
taken about the appointment of respondent
No.3 as Deputy Registrar.
5. On merits, it is stated that the
respondent No.3 and the petitioner both
were selected in the same Selection Board
and the requisite qualification for
promotion is master's degree with at
least eight years teaching or administrative
experience in responsible position at a
university or education department.
According to the respondents she lacks
eight years experience and her period of
posting in a school cannot be taken into
consideration for counting the requisite
experience.
6. The respondent No.3 despite service,
neither submitted any counter affidavit nor
appeared before the Court.
7. Since the parties have addressed their
arguments at full length and also submitted

1783
their respective documents, which were
perused learned counsel. Therefore, the
petition in hand is being decided as
Admitted Case.
8. The admitted fact of the case is that the
petitioner applied for the post of Assistant
Registrar which requires master's degree
and four years teaching or administrative
experience. Here degree and experience
were considered as fulfilling the
requirement and, therefore, she was
appointed by the Selection Board. It is also
admitted position that she joined the
university on 4-9-2006 and has got 4-1/2
year experience at her credit as Assistant
Registrar, while there is no document on
record to show the joining report of the
respondent No.3.
9. The respondents Nos.1 and 2 seem to
have concealed the facts by not producing
any document in this regard. It is obvious
1784
from the conduct of the respondents that
they are not contesting the petition with
clean hands and somewhere at some place
there seems to be some pick and choose
policy to benefit some favourite person
instead of making the promotion on the
basis of merit and seniority. The university
cannot take a stand by stating that the lady
lacks eight years experience because the
university had accepted her previous four
years teaching/administrative experience by
appointing her as Assistant Registrar and
now they cannot take a hot and cold
breath at the same time. The law of
estoppel is fully attracted in the present
case and after considering her previous four
years experience with that of present 4-1/2
year experience, she becomes entitled for
appointment against the post of Deputy
Registrar in PBS-18
10. Article 27 of the Constitution
1785
very specifically states that there shall
be no discrimination in service on the
basis of sex alone while Article 25 also
states that all the citizens are equal in the
eyes of law and there shall be no
discrimination on the basis of sex, creed or
religion.
11. The respondents Nos.1 and 2 in their
parawise comments have not questioned the
performance of petitioner and have not
made any allegation about the quality of her
work.
12. According to the university service
statute, the seniority in each cadre shall be
determined on the basis of date of joining
in each cadre. The respondents have failed
to show the joining date of respondent No.3
and, therefore, by no stretch of imagination
he can be considered senior to the
petitioner.

1786
 13. The policy of a statutory body
should not be in conflict with fundamental
rights or ulterior motives or mala fide. The
competent authority is under obligation
to determine eligibility of the employees
for grant of higher grade. It is also the
prime obligation of the functionaries to
redress grievances of their subordinates
and the efforts should be made to bring
out an egalitarian society based on Islamic
concept of fair-play and social justice and
the authorities should never be a reason to
create unnecessary hardships or unrest
among the employees.
14. The said post is to be filled on
promotion basis out of the present
employees and, therefore, the selection of
respondent No.3 seems to be arbitrary. The
stand taken by the university about the pre-
maturity of the petition is not accepted
because, the factual position is that the
1787
name of respondent No.3 is going to be
placed before the syndicate while the name
of petitioner has been ignored. The petition,
therefore, cannot be considered as
premature.
15. As far as the point of jurisdiction is
concerned, it is suffice to say that whenever
there is a mala fide or discriminatory action
leading to the violation of constitutional
guarantees, the constitutional courts have
ample authority to interfere for the
redressal of grievance. The law in any
case has to be geared properly and the
injustice in the form of super-session has to
be curbed, so that people may not have a
general sense of deprivation or discomfort
otherwise there will be a chaos in the
society and people would lose confidence
in all the institutions.
16. The Constitution of Pakistan like all
other modern constitutions emphasizes
1788
upon fundamental rights and such rights in
any case has to be provided by the courts as
guardians of the citizens and Article 199 of
the Constitution empowers the court to
exercise jurisdiction in matters where merit
is being ignored. In any case merit-cum-
seniority has to be recognized.
17. In view of the above, the petition is
accepted. The placing of respondent No.3's
name for promotion against the post of
Deputy Registrar in super-session of
petitioner is declared illegal, un-
jurisdictional and against the principles of
promotion policy. There shall be no order
as to costs.
M.H./28/Isl Petition
allowed.

1789
 2010 Y L R 1647
[Karachi]
Before Muhammad Ali Mazhar, J
Flt. Lt. (Dr) SHARIQ SAEED---Plaintiff
Versus
MANSOOB ALI KHAN and 5 others---
Defendants

Suit No. 1774 of 2008, decided on 19th

April, 2010.

(a) Civil Procedure Code (V of 1908)---

----S.11---Res judicata, doctrine of---

Essential principles---Essential principles of
1790
res judicata are that a relief which is or
which can be claimed and prayed for by a
litigant, through one recourse to law, cannot
be claimed or prayed for again by the sane
litigant before same forum---Principle of res
judicata aims to save the court from being
vexed repeatedly by a litigant for the same
relief or for a relief which could have been
claimed or prayed for by him in earlier
action---In order to support plea of res
judicata, former decision must have been on
merits of question in issue in subsequent
litigation and it should be inter se parties
having same cause of action, subject-matter
and claim---If anyone of such elements is
missing, provisions of S.11 C.P.C. would
not be applicable---Principle of doctrine of
res judicata is that judgments and decrees
bind only the parties.

1791
Malik Gul Hassan and Co v. Federation of
Pakistan through the Secretary, Ministry of
Health Islamabad and 9 others 1995 CLC
1662 ref.

(b) Civil Procedure Code (V of 1908)---

----O. VII, R.11---Rejection of plaint---

Disputed questions of fact or law---Effect---
In case of controversial questions of fact or
law, provisions of O. VII, R.11, C.P.C.
cannot be invoked---Proper course for court
in such cases is to frame issue on such
question and decide the same on merits in
the light of evidence in accordance with
law---Court may, in exceptional cases,
consider legal objection in the light of
averment of written statement but pleadings
as a whole cannot be taken into
1792
consideration for rejection of plaint under O.
VII, R. 11, C.P.C.

Karachi Transport Corpn, and another v.

Muhammad Hanif and others 2009 SCMR
1005; Jewan and 7 others v. Federation of
Pakistan through Secretary, Revenue,
Islamabad and 2 others 1994 SCMR 826 and
Saleem Malik v. Pakistan Cricket Board
PCB and 2 others PLD 2008 SC 650 ref.

(c) Defamation Ordinance (LVI of 2002)--

-

----S.3---Constitution of Pakistan (1973),

Arts. 14 & 19---Defamation---Dignity of
man---Freedom of speech---Principles---
Freedom of expression is one of those

1793
fundamental rights which are considered to
be the corner stone of democratic
institutions---Right of free speech extends to
all subjects which affects way of life
without limitation of any particular fact of
human interest and includes in the main
term `freedom of expression'---Right of
freedom of speech and expression carries
with it the right to publish and circulate
one's idea, opinion and views with complete
freedom and by resorting to any available
means of publication---Right of freedom of
speech and expression is not unfettered and
unbridled---Absolute and unrestricted such
individual rights do not exist in any modern
State and there is no such thing as absolute
and uncontrolled liberty---While allowing
freedom of speech and expression as a
fundamental right, it is also provided under
Art. 14 of the Constitution, that dignity of
man, subject to law, the privacy of home are
1794
inviolable---Such principle is required to be
extended further to the case where any
defamation is caused, because human
dignity, honour and respect is more
important than comforts and necessities---
No attempt on the part of any person
individually, jointly or collectively to
detract, defame or disgrace other person,
thereby diminishing, decreasing and de-
grading dignity, respect, reputation and
value of life---Provisions of Art. 14 of the
Constitution, providing for dignity of man
as a fundamental right, is the most valuable
right---Dignity of man is not only provided
by Constitution of Pakistan, but according to
history and under Islam, great value has
been attached to dignity of man and privacy
of home---While exercising right of
freedom of speech and expression, one has
to keep in his mind that he has also a
corresponding responsibility and duty to
1795
ensure that his freedom of expression or
speech may not transgress limits of freedom
beyond the boundaries of Art.14 of the
Constitution.

Plato Films Ltd. v. Speidal 1961 A.C. 1090

and 1961 and 1 All. E.R. 876 ref.

(d) Defamation Ordinance (LVI of 2002)--

-

----Ss.3 & 9---Civil Procedure Code (V

of1908), S.11 & O.VII, R.11---Rejection of
plaint---Res judicata, principle of--Plaintiff
was aggrieved of allegations made by one of
the defendants in her suit for dissolution of
marriage and filed suit for recovery of
damages---Defendants sought rejection of

1796
plaint on the principle of res judicata as
matter had already been decided in earlier
suit for dissolution of marriage---Validity---
Suit was not hit by res judicata as in
criminal proceedings no F.I.R. was lodged
by plaintiff or his aunt on account of any
defamation under Ss. 500 or 501 P.P.C.---In
fact, F.I.R. was lodged by aunt of plaintiff
but plaintiff was not complainant in that
case---Case of plaintiff was for recovery of
damages on account of libel and main cause
of action was against allegations levelled in
the suit filed for dissolution of marriage by
way of Khula, therefore, suit was not hit by
principle of res judicata---Question
regarding entitlement of plaintiff to claim
any damages on account of his alleged
defamation could only be decided once the
appropriate issues were framed and evidence
was recorded in the suit---Defendants had
already filed their written statements and
1797
they would also be at liberty to raise their
defence in accordance with Defamation
Ordinance, 2002---High Court declined to
reject plaint under O. VII, R.11 C.P.C.---
Application was dismissed in circumstances.

Malik Gul Hassan and Co. v. Federation of

Pakistan through the Secretary, Ministry of
Health, Islamabad and 9 others 1995 CLC
1662; Province of Sindh and another v.
Shams-ul-Hassan and others; 2009 MLD
1093 Karachi Transport Corpn, and another
v. Muhammad Hanif and others 2009
SCMR 1005; Jewan and 7 others v.
Federation of Pakistan through Secretary,
Revenue, Islamabad and 2 others 1994
SCMR 826 and Saleem Malik v. Pakistan
Cricket Board PCB and 2 others PLD 2008
SC 650 ref.

1798
Nasir Maqsood for Plaintiff.

Syed Ansar Hussain for the Defendants

Nos.1 to 6.

ORDER

MUHAMMAD ALI MAZHAR, J.---By

this order, I will dispose of C.M.A.
No.11433 of 2009 filed by the defendant
under Order VII, Rule 11, C.P.C. The Suit
pertains to the Recovery of Damages on
account of alleged Defamation, Wrongful
Assault and Battery, Trespass, Illegal
restraint and wrongful confinement.

1799
Brief facts of the case are that the plaintiff
had married to defendant No.2 but Rukhsati
was kept in abeyance for some time with the
mutual consent of the elders. The defendant
No.1 being father of defendant No.2, after
some time of Nikah, started finding fault
with the said marriage and creating obstacles
on one pretext or the other to wind up the
wedlock arrangement and therefore, the idea
of Rukhsati appeared to be dropped. The
attempts were made for reconciliation by the
Aunt of the plaintiff Ms. Fareeda Zeab, but
the defendants decided not to honour the
contract of Nikah and therefore they
abandoned the obligation of Rukhsati. It is
further alleged in the plaint that since the
plaintiff and his family was not happy with
such move of breaking the marriage, the
plaintiff came from Peshawar to resolve the
issue in an amicable manner with the
defendant No.2 without any intervention of
1800
others. A meeting was proposed to be held
on 1st May, 2008 at the house of defendant
1Vo.3 at Karachi. In the said meeting, the
plaintiff along with his Aunt Ms. Fareeda
Zeab went to the house of defendant No.3
and the moment they entered into the
drawing room, the defendant No.6 stepped
in after couple of minutes and started
beating the plaintiff. It is further stated in the
plaint that subsequently, it transpired to the
plaintiff that the defendant No.2 filed a
Family Suit No.375 of 2008 against the
plaintiff in the Court of Xth Civil and
Family Judge, Karachi-West for Khula. In
paragraphs (4), (5) and (6) of the memo of
plaint, following false and baseless
allegations were levelled against the
plaintiff:--

"That after Nikah, it has been established

1801
 that the defendant is the vagabondish
person and has suspicious character".

"That the defendant having illicit

involvement with the bad character
women and with so called own
noble/prestigious relation".

"That the defendant is having liberal

immoral mental approach upto the
unlimited negativity and the plaintiff
belongs to a noble and religious family
and she cannot even think of it".

The Family Suit was fixed for pre-trial on 8-

10-2008, since the defendant No.1 declined
to join the plaintiff and exhibited extreme
hatred against him, the pre-trial failed and

1802
Khula was granted. The plaintiff after
having come to know that consequent upon
the decree granted in the aforesaid Family
Suit, the defendant No.1 in collusion with
other defendants is communicating to other
relatives, friends and colleagues of the
plaintiff regarding the offending contents of
the plaint containing scurrilous allegations
of scandalous nature, hence a legal notice
dated 18-11-2008 was sent to the defendants
Nos.1 and 2 which was returned unserved.
The plaintiff had mentioned all the above
facts in the legal notice and also claimed that
the plaintiff is defaming, injuring the
reputation and causing enormous loss to the
plaintiff. The plaintiff again sent a notice of
action through registered post A/D on 28-
11-2008 which was duly received and
replied on behalf of the defendants No.1 and
2 through their learned counsel vide reply
dated 16-12-2008, wherein the defendants
1803
Nos. 1 and 2 had not denied the averments
of notice but they rather endorsed and
affirmed the allegations against the plaintiff
and further asserted that it was good-luck of
the plaintiff that the evidence was not
recorded before the Court of law as in such
eventuality, the plaintiff would have been
held answerable for the same. The plaintiff
further alleged that cause of action arose
initially on 1-5-2008 when the plaintiff kept
in wrongful custody and illegal confinement
and was subjected to assault and further
cause of action accrued on 8th October,
2008 when the defendants Nos.1 and 2, after
the decree was passed in the Family Suit,
managed to falsely represent before the
public at large and amongst the known circle
of the plaintiff by communicating the
slanderous remarks as contained in the
memo of plaint filed in the Family Suit and
also thereafter, by distributing the copies of
1804
the said plaint amongst the colleagues,
friends, and other persons to the entire
detriment of the plaintiff's reputation and
continuously doing propaganda by spoken
words and by showing the copies of the
plaint containing scandalous allegations with
false representation that the decree had been
granted as the allegations were proved. It is
further alleged in the plaint that cause of
action further arose on 18-11-2008 when the
notice of action was sent to the defendant
and subsequently when the defendants sent
their reply on 16-12-2008 in which the
defendants proceeded to further affirm and
endorse the scandalous allegations.

In the application filed under Order VII,

Rule 11 read with section 151, C.P.C. the
defendants have stated that the plaintiffs has
placed his case upon an incident in which
1805
the plaintiff and his Aunt were subjected to
criminal harassment and in that respect, an
F.I.R. was registered. The case was
investigated by the police several times and
a report was submitted to the Court that no
such incident has occurred and a minor
incident of "Tu Tu Mai Mai" was glorified.
It is further submitted in the application that
in any case, the police submitted a charge
sheet on the orders of the learned Magistrate
which was considered by this Court and
criminal proceedings were quashed. It is
further stated that against the order, the
plaintiff and her Aunt preferred a petition
before Supreme Court of Pakistan, which
petition was dismissed. The defendants in
the application prayed that the plaint be
rejected at this stage instead of pending the
same, which amount to the harassment.

1806
Along with the application, the learned
counsel for the defendants has also filed
copies of F.I.R. No.210 of 2008 lodged by
Ms. Farida Zaed and order of this Court
passed in Cr. Miscellaneous. Application
No.114 of 2009, whereby the F.I.R. No.210
of 2009 registered at Police Station
Saudabad was quashed. The learned counsel
also attached a copy of order passed by the
honourable Supreme Court on 17th
September, 2009, whereby the order passed
by this Court in Cr. Miscellaneous
Application No.114/2009 was affirmed. The
learned counsel for the defendants in support
of his application also filed an additional
statement in which he asserted that Suit is
barred under sections 11, C.P.C.

In response to the application, the plaintiff

filed his counter-affidavit in which he totally
1807
denied the averments made in the
application under Order VII, Rule 11, C.P.C.
and stated that he never lodged any F.I.R.
nor his present case is wholly based on the
incident mentioned therein. The F.I.R. was
lodged by his Aunt Ms. Farida Zaeb. The
plaintiff further stated that he has filed the
present Suit for claiming damages on
account of actionable wrong of the
defendants in defaming him and causing
undue restraint of his liberty and other
omissions and commissions which formed
the part of pleadings. In the nutshell, the
plaintiff wants to place that his Suit is based
on actionable wrong and in the criminal
proceedings, he was not the complainant and
no F.I.R. was lodged for libel and slander
but in the present Suit, he has claimed the
damages on account of defamation.

1808
I have heard the learned counsel for the
parties. The main thrust of the arguments of
the learned counsel for the defendants was
that the F.I.R. lodged by Ms. Farida Zaeb
has been quashed and, therefore, the present
Suit is hit by res judicata. In support of his
arguments, he relied upon a judgment
reported in 1995 CLC 1662 Malik Gul
Hassan and Co. v. Federation of Pakistan
through the Secretary, Ministry of Health,
Islamabad and 9 others in which the learned
Balochistan High Court in a Constitutional
Petition held that whenever there is a
judgment by a competent Court having
jurisdiction, inter parties, it will prevent a
fresh Suit or proceedings between them
regarding the same matter. It has been
further held in the same judgment that
doctrine of res judicata is of universal
application and in fact a fundamental
concept in the organization of every judicial
1809
system. If a cause has been definitely
determined by a competent Court or
Tribunal, it shall be accepted as "irrefragable
legal truth". The learned counsel further
argued that the judgment passed by this
Court in quashment petition may be
considered in this Suit as solid evidence
against the plaintiff, hence the present Suit is
hit by principle of res judicata. In the above
judgment cited by the learned counsel the
facts of the case were that a Constitutional
Petition came up for preliminary hearing and
notices were issued to the Advocate-General
and Standing Counsel. However, the petition
was dismissed by the Division Bench of
Balochistan High Court. Feeling aggrieved,
the petitioner had approached the
honourable Supreme Court in which the
counsel appearing for the petitioner candidly
submitted that the petitioner will have to file
some other legal proceedings, inter alia, for
1810
impugning the Ordinance and, therefore, he
did not press petition for leave to appeal
with the clarification that the observation
made by the High Court on factual aspects
will not be considered as res judicata. On
this statement, the learned counsel for the
parties agreed that both the parties will be at
liberty to raise whatever factual and legal
pleas as may be available to them in any
future proceedings which may be initiated
by either of the parties and that any
observation in the impugned order of the
High Court will not prejudice either of the
parties. On this firm statement, the petition
in the Supreme Court was disposed of as
withdrawn. The facts and circumstances
mentioned in the aforesaid reported
judgment are highly distinguishable to the
facts of the present case.

1811
In order to press the provisions of section
11, C.P.C. five conditions are very
important:

(i) The matter directly and substantially

in issue in the subsequent Suit must be
the same matter, which was directly and
substantially in issue actually or
constructively in former Suit;

(ii) The former Suit must have been a

Suit between the same parties or between
the parties under whom they or any of
them claim;

(iii) The parties as aforesaid must have

litigated under the same title in the
former Suit;

1812
 (iv) The Court which decided the former
Suit must have been a Court competent
to try the subsequent Suit in which such
issue is subsequently raised; and

(v) The matter directly or substantially in

issue in subsequent Suit must have been
heard and finally decided by the Court.

The essential principles of res judicata are

that a relief which is or which can be
claimed and prayed for by a litigant through
one recourse to law cannot be claimed or
prayed for again by the same litigant before
the same forum. The principle of res judicata
aims to save the Court from being vaxed
repeatedly by a litigant for the same relief or
for a relief which could have been claimed
1813
or prayed for by him in earlier action. In
order to support a plea of res judicata, the
former decision must have been on merits of
the question in issue in the subsequent
litigation and it should be inter se parties
having same cause of action, subject-matter
and claim. If anyone of these elements is
missing, this section would not be
applicable. The principle of this doctrine is
that the judgment and decrees bind only
parties.

The learned counsel for the plaintiff argued

that though the plaintiff was not the
complainant in the F.I.R, even otherwise the
defendants cannot claim res judicata. He has
referred to the cause of action and averments
of the plaint wherein the main cause of
action is based on account of alleged
defamation made by the defendant No.1 in
1814
her plaint for Dissolution of Marriage. The
learned counsel for the plaintiff states that
after failure of pre-trial and passing of
decree for dissolution of marriage by way of
Khula, the defendant No.1 along with other
defendants circulated the copy of plaint to
show that Khula was granted on the basis of
alleged libelous averments made in the
plaint. He further argued that for the purpose
of rejection of a plaint under Order VII,
Rule 11, C.P.C, only the averments of the
plaint should be looked into and even the
documents filed in defence are not liable to
be considered. He further argued that
judgment passed by the Court in criminal
cases cannot be considered as the criminal
case has no relevance for the determination
of civil liability. The standard of
appraisements of evidence in criminal and
civil cases are altogether different and
findings of criminal Courts would not be
1815
binding on civil Court. In support of his
contention he relied upon judgment reported
in 2009 MLD 1093 Province of Sindh and
another v. Shams-ul-Hassan and others in
which the main defence of the defendant
was that one of the defendants had been
acquitted by the trial Court from the
criminal case. In response to this plea the
learned Division Bench of this Court
observed that fate of criminal proceedings
had no relevance for the purpose of
determination of the civil liability as in civil
case judge of facts must find for the party in
whose favour there was preponderance of
probability, though evidence be not entirely
free from doubts while in criminal cases, the
factum of incident should be proved beyond
any reasonable doubt. Even the acquittal
findings of guilt in criminal case did not
carry bearing for adjudication of civil cases
in any manner. In the same line of
1816
arguments, he further relied upon judgment
reported in 2009 SCMR 1005 Karachi
Transport Corpn. and another v. Muhammad
Hanif and others in which it has been held
that standards of appraisement of evidence
in criminal and civil cases are altogether
different and findings of criminal Court
would not be binding on civil Court. As
regards the basic principle of Order VII,
Rule 11, C.P.C. is concerned, it is clear that
while deciding such application only the
contents of the plaint are to be looked into
without any extraneous consideration. In
support of this plea, the learned counsel for
the plaintiff relied upon a judgment reported
in 1994 SCMR 826 Jewan and 7 others v.
Federation of Pakistan through Secretary,
Revenue, Islamabad and 2 others in which it
has been held that the rejection of plaint
under Order VII, Rule 11, C.P.C. is
contemplated at a stage when the Court has
1817
not recorded evidence in the Suit. It is for
this reason precisely, that the law permits
consideration of only averments made in the
plaint for the purpose of deciding whether
the plaint should be rejected or not for
failure to disclose cause of action or the Suit
being barred under some provision of law.
The Court while taking action for rejection
for plaint under Order VII, Rule 11, C.P.C.
cannot take into consideration pleas raised
by the defendants in the Suit in his defence
as at that stage the pleas raised by the
defendants are only contentions in the
proceedings unsupported by any evidence
on record. The learned counsel further relied
upon another judgment reported in PLD
2008 SC 650 Saleem Malik v. Pakistan
Cricket Board PCB and 2 others in which
the Honourable Supreme Court has held that
the plaint in the Suit cannot be rejected on
the basis of defence plea or material
1818
supplied by the opposite party with the
written statement. This is settled law that in
case of controversial questions of fact or
law, the provision of Order VII, Rule 11,
C.P.C. cannot be invoked rather the proper
course for the Court in such cases is to
frame issue on such question and decide the
same on merits in the light of evidence in
accordance with the law. The Court may in
exceptional cases, consider legal objection
in the light of averment of the written
statement but the pleadings as a whole
cannot be taken into consideration for
rejection of plaint under Order VII, Rule 11,
C.P.C. From the aforesaid judgment of the
honourable Supreme Court, it is clear that
while deciding an application under Order
VII, Rule 11, C.P.C. only contents of the
plaint are to be seen and defence cannot be
considered. While deciding the civil cases,
the judgments passed in criminal cases have
1819
no relevance and standard of proof of
evidence are altogether different in both
species of litigation.

It is advantageous to point out that before

promulgation of Defamation Ordinance
2002, the suits based on law of Torts/Libel
or Slander of recovery of damages were
being filed under the common law.
However, in the year 2002 a special law has
been promulgated in which certain
provisions have been incorporated relating
to law of defamation. In this Ordinance,
publication means the communication of the
words to at least one person other than the
person defamed and to include a newspaper
or broadcast through the Internet or other
media. Communicating defamatory matter
to some person other than the person of
whom it is written is publication in its legal
1820
sense. If the statement is sent straight to the
person of whom it is written, there is no
publication of it. The words "complained of"
should be communicated to some person
other than the plaintiff. Section 3 of the
Ordinance provides that any wrongful act or
publication or circulation of a false
statement or representation made orally or in
written or visual from which injures the
reputation of a person, tends to lower him in
the estimation of others or tends to reduce
him to ridicule, unjust criticism, dislike,
contempt or hatred shall be actionable as
defamation. The same section further
provides that defamation is of two forms
namely (i) slander and (ii) libel. Any words
will be deemed defamatory which expose
the plaintiff to hatred, contempt, ridicule, or
obloquy, or tend to injure him in his
profession or trade, and cause him to be
shunned or avoided by his neighbours.
1821
Everyman has an absolute right to have his
reputation preserved inviolate. The right of
reputation is acknowledged as an inherent
personal right of everyman and a man's
reputation is his property and, if possible
more valuable than other property. The
concept of defamation is as old as the hills
and the Pakistan Penal Code makes no
distinction between written and spoken
defamation and the term "defamation"
includes both libel and slander. "Denigratio
alienate framae", in the Latin of the
medieval schoolman. A good name is better
than great riches. According to Shakespeare
in Othello, Act II, Scene 3165:

"Good name in man and woman, dear

my lord,

1822
 Is the immediate jewel of their souls;

Who steals my purse, steals trash; tis

something nothing;

T was mine, 'tis his, and has been slave

to thousands;

But he that filches from me my good

name,

Robs me of that which not enriches him,

And makes me poor indeed."

The speech of Lord Denning in Plato Films

1823
Ltd. v. Speidal 1961 A.C. 1090 and 1961, 1
All. E.R. 876 provides helpful guidance as
to the kind of evidence, which is admissible
to show bad or good reputation, as the case
may be. The defendant may mitigate
damages by giving evidence to prove that
the plaintiff is a man of bad general
reputation and the plaintiff may rebut it by
coming prepared with friends who have
known him to prove his reputation has been
good. Lord Denning in his speech states that
in order to arrive at a man's character and
reputation, you should call those who know
him and have had dealings with him, for
they provide the only sound foundation on
which to build, if it is evidence of good
character, a witness of good standing is
called such as a clergyman, schoolmaster or
an employer and is asked such questions as
these: "What are you? How long have you
known him? Have you known him well?
1824
Have you had an opportunity of observing
his conduct?

What character has he borne during that

time for honestly, morality or loyalty?"...

Defamation may be broadly defined as a

false statement of which tendency is to
disparage the good name or reputation of
another person. Section 4 of the Defamation
Ordinance 2002 further provides that
publication of defamatory matter is
actionable wrong without proof of special
damage to the person defamed and where
defamation is proved, damage shall be
presumed. In section 5 of the same
Ordinance, certain lines of defence have also
been provided for the defendant to prove
that he was not the author, editor, publisher
1825
or printer of the statement complained of;
the matter commented on is fair and in the
public interest and is an expression of
opinion and not an assertion of fact and was
published in good faith; it is based on truth
and was made for public good; assent was
given for the publication by the plaintiff;
offer to tender a proper apology and publish
the same was made by the defendant but was
refused by the plaintiff; an offer to print or
publish a contradiction or denial in the same
manner and with the same prominence was
made but was refused by the plaintiff; the
matter complained of was privileged
communication such as between the lawyer
and client or between having fiduciary
relations; and the matter is covered by
absolute or qualified privilege. The
legislature has also provided two kinds of
privileges, one is absolute privilege and
another is qualified privilege. Any
1826
publication of statement made in the Federal
or Provincial legislatures, reports, papers,
notes and proceedings ordered to be
published or by the Provincial Assemblies,
or relating to judicial proceedings ordered to
be published by the Court or any report, note
or matter written or published by or under
the authority of a Government shall have the
protection of absolute privilege while any
fair and accurate publication of
parliamentary proceedings, or judicial
proceedings which the public may attend
and statements made to the proper
authorities in order to procure the redress of
public grievance shall have the protection of
qualified privilege. Before taking action
under this Ordinance, notice of action is
mandatory. Section 8 of the Ordinance
provides that no action lies unless the
plaintiff has, within two months after the
publication of the defamatory matter has
1827
come to his notice or knowledge, given to
the defendant, fourteen days' notice in
writing of his intention to bring an action,
specifying the defamatory matter
complained of. The remedies are available
under section 9 of the Ordinance which says
that where defamation shall proved to have
occurred, the Court may pass order directing
the defendant to tender any apology, if
acceptable to the plaintiff, and publish the
same in similar manner and with the same
prominence as the defamatory statement
made and pay reasonable compensatory
damages as general damages with a
minimum of Rs.50,000 and in addition
thereto, any special damage incurred that is
proved by the plaintiff to the satisfaction of
the Court. Award of general damages is
comprised on three conditions such as (a)
vindication, (b) injury to reputation, (c)
injury to feelings. The amount of damages
1828
awarded in respect of vindication and injury
to reputation and feelings depends on
number of factors such as (a) the gravity of
the allegation (b) the size and influence of
the circulation (c) the effect of the
publication (d) the extend and nature of the
claimant's reputation (e) the behaviour of the
defendant (f) the behaviour of the claimant.
The standard of proof is the normal civil
standards of the balance probabilities.
However, in common with a plea of
justification to serious charges, the evidence
must be clear and cogent. Proof of a state of
mind can only be inferred from the facts.
Section 11 of the Ordinance clearly
stipulates that Ordinance not to prejudice
any action for criminal defamation which
means that the Ordinance does not prejudice
any action for criminal libel or slander under
any law for the time being in force which
makes clear that both remedies are available
1829
to an aggrieved person and he is at liberty to
file both, civil and criminal proceedings
against the actionable wrong simultaneously
and there is no bar imposed under the
Ordinance. Though under Article 19 of the
Constitution of Islamic Republic of Pakistan
freedom of speech and expression is a
fundamental right which provides that every
citizen shall have the right to freedom of
speech and expression, and there shall be
freedom of the press, subject to any
reasonable restrictions imposed by law in
the interest of the glory of Islam or the
integrity, security or defence of Pakistan or
any part thereof, friendly relations with
foreign States, public order, decency or
morality or in relation to contempt of Court
(commission of) or incitement of an offence,
Freedom of expression is one of those
fundamental rights which are considered to
be the corner stone of democratic
1830
institutions. The right of free speech extends
to all subjects which affect ways of life
without limitation of any particular fact of
human interest and c include in the main
term "freedom of expression". Moreover the
right of freedom of speech and expression
carries with it the right to publish and
circulate one's ideas, opinions and views
with complete freedom and by resorting to
any available means of publication.
However, the right of freedom of speech and
expression is not unfettered and unbridled.
Absolute and un-restricted individual rights
do not exist in any modern State and there is
no such thing as absolute and uncontrolled
liberty. While allowing freedom of speech
and expression as a fundamental right, our
Constitution also provides under Article 14
that the dignity of man and, subject to law,
the privacy of home shall be inviolable. The
principle is required to be extended further
1831
to the cases where any defamation is caused,
because the human dignity, honour and
respect is more important than physical
comforts and necessities. No attempt on the
part of any person individually, jointly or
collectively to detract, defame or disgrace
another person, thereby diminishing,
decreasing and degrading the dignity,
respect, reputation and value of life. This
provision providing for the dignity of man
as a fundamental right is the most valuable
right. Dignity of man is not only provided
by Constitution of Pakistan, but according to
history and belief under Islam great value
has been attached to the dignity of man and
the privacy of home. So in all fairness, while
exercising the right of freedom of speech
and expression, one has to keep in his mind
that he has also a corresponding
responsibility and duty to ensure that his
freedom of expression or speech may not
1832
transgress the limits of freedom beyond the
boundaries of Article 14 of the Constitution.

Reverting back to present case, I am of the

view that the assertion of the learned
counsel for the defendant that present Suit is
hit by res judicata is not correct as in the
criminal proceedings no F.I.R. was lodged
by the plaintiff or his Aunt on account of
any defamation under section 500 or 501,
P.P.C. In fact, F.I.R. was lodged by the Aunt
of the plaintiff but the plaintiff was not
complainant in the case. The present case of
the plaintiff is for the recovery of damages
on account of libel and main cause of action
is against the allegations levelled in the Suit
filed for the Dissolution of Marriage by way
of Khula, therefore I am of the view that the
present Suit is not hit by the principle of res
judicata.
1833
From the contents of the plaint, it is clear
that the main claim of the plaintiff is against
the libelous allegations levelled against him
in the Family Suit. The plaintiff further
claims that a notice of action was tendered
upon the defendant No.1 in which the
defendant No.1 aggravated the situation. All
these questions whether the plaintiff is
entitled to claim any damages on account of
his alleged defamation can only be decided
once the appropriate issues are framed and
evidence is recorded in the Suit. The
defendant have already filed their written
statement and they will be also at liberty to
rise their defence in accordance with
Defamation Ordinance 2002. The present
application under Order VII, Rule 11, C.P.C.
is not maintainable which is dismissed
accordingly.

1834
M.H./S-30/K
Application dismissed.

1835
P L D 2007 Karachi 405

Before Muhammad Moosa K. Leghari, J

MUHAMMAD YOUSUF and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.365, 397 and 403 of 2006, decided on 9th October, 2006.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 497, 156-B & 103---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),
Ss.13, 14 & 18---Bail, grant of---State Counsel opposed the grant of bail to accused in a routine
manner and was utterly unable to advance any rational and/or plausible argument to support the
case of prosecution---Prosecution had attempted in vain to establish that accused, being male and
female were found indulging in immoral acts, the acts constituting sexual intercourse---Neither
any allegation was mentioned in the F.I.R. nor any evidence had been collected by the
Investigating Agency to allege that any of the accused had sold, purchased, hired, disposed of or
taken possession of any said person for prostitution, which was the basic element of Ss.13, 14 &
18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Such basic element being
missing in the whole story there was thus absolutely no evidence to show that some person was
selling any person or for that matter buying any person with the intent of using such person for
the purpose of prostitution---Prosecution story was absolutely improbable and utterly
unbelievable and militated against common sense---Even if it was believed that accused were in
objectionable position as alleged, it would not mean that they were involved in the act of
commission of Zina---Proof of Zina required hard and solid evidence and not the imagination of
a petty police official---Investigation of the case was conducted by an A.S.-I. and women
accused were arrested without permission of the court---Provisions of S.156-B, Cr.P.C. in
circumstances were flagrantly violated by the police and command of law was practically
rendered null and void---Complainant police officer along with police party entered the premises
without any search warrants---Despite spy information, complainant did not take any step to
associate any private person of the locality to watch the proceedings---Provisions of S.103,
Cr.P.C. had been violated in circumstances, which was not condonable---Police officer not only
conducted search in flagrant violation of provisions of law, but had breached the Injunctions of
Islam, violated provisions of the Constitution, flouted law and acted in contravention of Police

1836
Rules/Order---Magistrate accepted the challan and took cognizance of offence in a mechanical
manner, in disregard of provisions of law, without examining the material produced by the
prosecution and without proper application of mind---Accused as well as any other person in the
custody in consequence of registration of said F.I.R., would thus be released forthwith.

(b) Constitution of Pakistan (1973)---

----Art. 14--Dignity of man---Article 14 of the Constitution provided inviolable right to dignity

of the man---Injunctions of Islam and the law of land, were intended to protect and preserve
fundamental rights of dignity of man and privacy of home---Violation of privacy of home
through arbitrary intrusion by the police, without authority of law was absolutely unwarranted
being repugnant to the concept of human rights relatable to the dignity of man and privacy of
home.

(c) Criminal Procedure Code (V of 1898)---

----S. 190---Cognizance of offences by Magistrate---Cognizance---Concept---Under provisions

of S.190, Cr.P.C. Magistrate could take cognizance; upon receiving the complaint of facts which
constituted offence; upon report in writing of such facts made by any police officer; and upon
information received from any person other than a police officer or upon his own knowledge or
suspicion that such offence had been committed---Magistrate, only after taking cognizance of a
case was to determine whether the matter before him was exclusively triable by a court of
Session---Once the Magistrate arrived at the conclusion that it was so triable, his own
jurisdiction to try same would cease and in such event he must send the case to the Court of
Session for trial---Word `Cognizance' would not mean merely preparation to deal with the matter
without application of one's mind.

Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 and Mehar Khan v.
Yakub Khan and another 1981 SCMR 267 ref.

(d) Administration of justice---

1837
----Duty and function of Judicial Officer---Judicial Officer was not only expected and supposed
to know the law, but was required to continue updating his knowledge of law---District and
Sessions Judges being the Head of District/Sessions Division in their position as Team Leader,
were further expected to act as Role Model and must impart legal knowledge to the Judicial
Officers subordinate to them---Ignorant Judicial Officer could never, be able to deliver and
dispense even-handed justice, more particularly to the downtrodden and least privileged classes
of the society.

(e) Criminal Procedure Code (V of 1898)---

----S. 561-A---Wrong caused by police---Remedy---Inherent powers of High Court---Wrong

caused by the police needed to be remedied at the earliest occasion---High Court had been
bestowed with very wide, unbridled and indefinite inherent powers under S.561-A, Cr.P.C. to
prevent the abuse of process of the court or otherwise to secure the ends of justice.

M. Shafi Khan, Iftikhar Ali Hashmi and M.A. Qadir for Applicants.

Ms. Shahida Jatoi, State, Counsel for Respondent.

ORDER

MUHAMMAD MOOSA K. LEGHARI, J.---The applicants/accused have been entangled by

Shahrah-e-Faisal Police in Crime No.163 of 2006 registered on 28-3-2006 at the aforementioned
Police Station on the complaint of S.I.P. Mumtaz Abro, for the offences punishable under
sections 13/14/18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.

2. Brief facts of the case as narrated in the above cited F.I.R. are that on 28-3-2006, while the
complainant was patrolling in the area in a private vehicle, along with police party he received a
spy information that some male and female persons were indulging in prostitution in Flat No.A-
11/28 Jauhar Square Gulistan-e-Jauhar Karachi. On reaching at the pointed flat at 1740 hours he

1838
knocked the door of the flat which was opened. The complainant entered the premises and found
the inmate male and female persons in objectionable position. They were made to put on their
clothes. Since the accused named in the F.I.R. were found to have committed the offences
punishable under sections 13/14 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance,
they were arrested, and the F.I.R. was registered against them.

3. It appears that after completing the investigation which was conducted by one A.S.I.
Muhammad Akram charge sheet was submitted, which was accepted by the Magistrate
concerned and R & Ps. were ordered to be transmitted to the Sessions Court.

4. Having failed to get bail from the trial Court, the applicants approached this Court. Arguments
were heard and with the assistance of learned counsel material available on record was examined
in context of the provisions of relevant law. Learned counsel for State however, opposed the
grant of bail, in a routine manner, but was utterly unable to advance any rational and/or plausible
arguments to support the case of the prosecution.

5. The applicants have been booked for offences under sections 13, 14 & 18 of Offence of Zina
(Enforcement of Hudood) Ordinance, 1979 it will be appropriate to reproduce hereunder, the
relevant sections:-

"13. Selling person for purposes of prostitution, etc.--Whoever sells lets to hire, or
otherwise disposes of any person with intent that such person shall at any time be
employed or used for the purpose of prostitution or illicit intercourse with any person or
for any unlawful and immoral purpose, or knowing it to be likely that such person will at
any time be employed or used for any such purpose, shall be punished with imprisonment
for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.

14. Buying person for purposes of prostitution, etc.--Whoever buys, hires or otherwise
obtains possession of any person with intent that such person shall at any time be
employed or used for the purpose of prostitution or illicit intercourse with any person or
for any unlawful and immoral purpose or knowing it to be likely that such person will at
any time be employed or used for any such purpose, shall be punished with imprisonment
for life and with whipping not exceeding thirty stripes, and shall also be liable to fine.

1839
 18. Punishment for attempting to commit an offence.--Whoever attempts to commit an
offence punishable under this Ordinance with imprisonment or whipping, or to cause
such an offence to be committed and in such attempt does any act towards the
commission of the offence, shall be punished with imprisonment for a term which may
extend to one half or the longest term provided for that offence, or with whipping not
exceeding thirty stripes or with such fine as is provided for the offence, or with any two
of or all, the punishments."

6. The bare perusal of the above provisions of Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 would demonstrate that section 13 provides for punishment to be inflicted on
person(s), who sell(s), let(s) to hire, or otherwise dispose(s) of any person with intent that such
person shall at any time be employed or used for the purpose of prostitution, or illicit intercourse
or for any unlawful and immoral purpose. Whereas section 14 ibid provides for the similar
punishment against person(s) who buy(s) hire(s) or otherwise obtain(s) possession of any person,
with the same intention, while section 18 provides for the punishment for making attempt to
commit such offence. Thus it would be obviously clear that the above sections provide for the
punishment against the person or persons who indulge themselves in the business of selling and
or purchasing, letting hire and/or hiring, or disposing of/taking possession of other person(s) with
the intent that such person(s) shall be used for the purpose of prostitution, illicit intercourse or
for any unlawful and immoral purpose.

7. It will be seen that on the basis of the allegations in the F.I.R. registered against the accused
persons and the evidence so collected, the prosecution has attempted in vain to establish that the
accused persons, being male and female were found indulging in immoral acts, the acts
constituting sexual intercourse to be precise. Neither there is any allegation in the F.I.R. nor any
evidence has been collected by the investigating agency to allege that any of the accused persons
has sold, purchased, hired, disposed of or taken possession of any such person for prostitution.
The basic element, which may attract the punishment against any of the accused persons, as
stipulated under the aforementioned sections of the Ordinance is thus conspicuously missing in
the whole story.

8. As observed above, there is absolutely no evidence to show that there was some person who
was selling any person, or for that matter buying any person with the intent of using such person
for the purpose of prostitution. The prosecution story is absolutely improbable and utterly
unbelievable. It militates against the common sense. To say and believe that even after the
inmates opened the door on the knock, of the police party still they could be without their
clothings and that too in an objectionable position. Though it is hard to comprehend yet even if it
is believed that the accused were in objectionable position as alleged, it would not mean that they
were involved in the act of commission of Zina. Needless to say that the proof of Zina requires
hard and solid evidence and not the imagination of a petty police official.

1840
9. It may not be out of place to state here that in order to protect innocent citizens from the
miseries of petty police officials, and to avert false, malicious and dishonest investigation, the
legislature in its own wisdom has suitably amended the Code of Criminal Procedure. Sections
156-A and 156-B have been inserted in the Code by promulgating Act No.I/2005 on 10-1-2005.
The newly inserted amendment reads as under:--

"S. 156-A. Investigation of offence under section 295C, Pakistan Penal Code.---
Notwithstanding anything contained in this Code, no police officer below the rank of a
Superintendent of Police shall investigate the offence against any person alleged to have
been committed by him under section 295-C of the Pakistan Penal Code, 1860 (Act XLV
of 1860)

S.156-B. Investigation against a woman accused of the offence of Zina.--Notwithstanding

anything contained in this Code, where a person is accused of offence of Zina under the
Offence of Zina (Enforcement of Huddood) Ordinance, 1979 (VII of 1979), no police
officer below the rank of a Superintendent of Police shall investigate such offence nor
shall such accused be arrested 'without permission of the Court".

10. It will be seen that according to provision contained in section 156-B where a person is
accused of Offence of Zina under the Offence of Zina (Enforcement of Huddood), Ordinance
1979, no police officer below the rank of a Superintendent of Police shall investigate such
offence nor shall such accused be arrested without permission of the Court.

Purpose of this amendment understandably seems to prevent unwarranted accusation and mala
fide arrests on the charge of Zina.

11. It is sufficiently evident from the record that the investigation of the case was conducted by
an ASI and the women accused were arrested without permission of the Court. Thus the
provisions of section 156-B, Cr.P.C. were flagrantly violated by the police and stipulation and
command of law was practically rendered null and void.

12. It is manifestly clear from the contents of the F.I.R. itself that complainant police officer

1841
along with police party entered the premises without any search warrants. Though he received
spy information yet he did not take any step to co-opt. any private person of the locality to watch
the proceedings as he did not deem it necessary. Needless to point out that for entering any place
to be searched a police officer is required to call upon two or more respectable inhabitants of the
locality to act as witness as stipulated under section 103, Cr.P.C. violation of the above provision
of law is not condonable.

13. The Holy Quran has prohibited the act of intrusion into any ones house to only find out
commission of offence of Zina. Unlike some other special laws, there is no provision in the
Offence of Zina (Enforcement of Hudood) Ordinance (VII) of 1979 to permit the conduct of raid
in a house for the purpose of discovery and unearthing the commission of Zina therein. As per
true interpretation of Sura An-Nur Verses 27 and 28 of the Holy Qur'an right of privacy of home
is inviolable and absolute.

The translation of the abovenoted Verses by Abdullah Yousif Ali reads as under:-

"27. O ye who believe: Enter not houses other than your own, until ye have asked
permission and saluted those in them: that is best for you, in order that ye may heed (what
is seemly).

28. If ye find none in the house, enter not until permission is given to you; if ye are asked
to go back, go back: That makes for greater purity".

14. Article 14 of the Constitution of Islamic Republic of Pakistan provides inviolable right to
dignity of the man. Indeed injunctions of Islam and law of the land, are intended to protect and
preserve fundamental right of dignity of man and privacy of home. Violation of privacy of home
through arbitrary intrusion by the police, without authority of law is absolutely unwarranted
being repugnant to the concept of human rights relatable to the dignity of man and privacy of
home.

15. But clandestine and spurious manner in. which the complainant police officer and the
members of his party behaved and acted, adequately reveals that they egregiously encroached
upon and invaded the privacy of home as ordained by Holy Qur'an and grossly infringed the
dignity of man as enshrined in the Constitution of Islamic Republic of Pakistan by ruthlessly

1842
abusing their authority.

In the case in hand, the police officer conducted search, in flagrant violation of the provisions of
law, and undoubtedly acted in highly subversive, extremely arrogant and conspicuously callous
and reprehensible and unlawful manner, inasmuch as, he breached the injunction of Islam,
flagrantly violated the provision of Constitution, flouted the law and acted in contravention of
police rules/order.

16. It was dismaying to note that the Magistrate concerned accepted the challan and took
cognizance of the offence in a mechanical manner, in disregard of the provisions of law, without
examining the material produced by the prosecution and without proper application of mind.

17. Section 190, Cr.P.C. provides for cognizance of offences by a Magistrate which he can take
(a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in
writing of such facts made by any Police Officer and (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. It is only after taking cognizance of a case that the Magistrate has to determine
whether the matter before him is exclusively triable by a Court of Session. Once he arrives at the
conclusion that it is so triable, his own jurisdiction to try it ceases, and he must send the case to
the Court of Session for trial.

18. The word `cognizance' does not mean merely preparation to deal with the matter without
application of one's mind. The language of subsection (2) leaves no doubt that it is the duty of
the Magistrate to apply his mind to the facts of the case in order to determine whether it is
exclusively triable by a Sessions Court or it can be tried by another Court also.

19. In the case of Raja Khushbakhtur Rehman and another vs. The State in 1985 SCMR 1314 it
was held that; "the word "cognizance" is a term of art implying application of mind to the facts
of a case in order to determine whether the facts disclosed constituted an offence triable"

20. In the case of Mehar Khan vs. Yakub Khan and another reported as 1981 SCMR 267, it was
as under:

1843
 "A reading of subsection (3) of section 190, Cr.P.C., in the light of above-noted facts
would, however, show that

(i) before he can `send' a case for trial to the Court of Session, a Magistrate must, first,
have taken cognizance of a case, under any one of the three clauses to subsection (1) of
the section 190, Cr.P.C. In other words, he must either have received a private complaint
under clause (a), or a Police report under section 173, Cr.P.C., as envisaged in clause (b),
or he should be acting on any information received by him, as mentioned in clause (c). It
is, therefore, evident that he cannot act under subsection (3) without having received a
private complaint or a Police report (i.e. a challan either complete or incomplete) or some
information from any other source.

(ii) That although now a Magistrate is not required to hold an `inquiry' under Chapter
XVIII, but that does not mean that he is to act merely as a post office and automatically
`send' the case for trial to a Court of Session simply because a section relating to an
offence exclusively triable by a Court of Session has been mentioned by the Police or the
complainant (as the case may be) in the challan or the private complaint. He is, in fact,
required on having taken cognizance of such a matter to enquire into the case and to
apply his mind to whatever material is placed before him, by the Police or the
complainant, if in order to determine whether the allegations made in the Police report,
private complaint or information received by him, make out a prima facie case triable
exclusively by a Court of Session. (Emphasis supplied)

21. It will be pertinent to point out that consequent upon promulgation of Ordinance XXXVII of
2001 subsection (2) was deleted, and subsection (3) was re-numbered as subsection (2) of section
190, Cr.P.C.

22. It was yet another agonizing fact that Mrs. Akhtar A. Chaudhry Vth Additional Sessions
Judge Karachi East even declined bail to women accused in a cursory manner on flimsy and
imaginary grounds, in spite of the fact that inherent infirmities in the case of the prosecution
were highlighted in the arguments advanced before her. The order of refusal of bail, in the
circumstances, thus was tantamount to curtailing the liberty of the citizens without due process
of law. To say the least this situation is painfully disgusting and needs to be quickly identified,
arrested and rectified.

23. It may not be out of place to mention that the Judicial Officers are not only expected and

1844
supposed to know the law, but are required to continue updating their knowledge of. law. The
District & Sessions Judges being the Head of District/Sessions Division in their position as Team
Leader are further expected to act as Role Model and must impart legal knowledge to the Judicial
Officers subordinate to them. It goes without saying that an ignorant Judicial Officer could
never, ever be able to deliver and dispense with even-handed justice, more particularly to the
downtrodden and least privileged classes of the society.

24. Be that as it may, the wrong caused by the police needs to be remedied at the earliest
occasion. Undisputably, this, Court has been bestowed with Very wide, unbridled and indefinite
inherent powers under section 561-A, Cr.P.C. to prevent the abuse of process of Court or
otherwise to secure the ends of justice.

Indeed in order to accomplish the object of doing real and substantial justice, the case in hand
appears to be a fit case warranting the invocation of inherent jurisdiction of this Court to prevent
the abuse of the process of court and to secure the ends of justice. As obviously apparent from
the above discussion, the F.I.R. and consequent challan/charge sheet which is subject matter of
present bail applications having been registered and investigated in flagrant disregard of law
against fundamental rights as enshrined in Constitution and in violation of Ordinance 1979, and
the subsequent proceedings emanating therefrom are sheer abuse of the process of Court, thus
could not be allowed to continue. Consequently the proceedings arising out of F.I.R. registered
vide crime No.163/2006 under sections 13/14/18 of Offence of Zina (Enforcement of Hudood)
Ordinance 1979 at Police Station Shahrah-e-Faisal are hereby quashed.

25. Resultantly, the applicants, as well as any other person in custody in consequence of
registration of the said F.I.R. shall be released forthwith.

26. These are detailed reasons for the short order passed on 1-6-2006.

27. In the light of above discussion, it is evidently clear that police party headed by complainant
Sub-Inspector Mumtaz Ali Abro of Police Station Shahrah-e-Faisal abused their authority thus
they rendered themselves liable to penal as well as disciplinary action. All concerned police
personnel, therefore shall be proceeded against under the provision of Pakistan Penal Code,
Police Order, and service laws, which have been flouted.

1845
Let a copy of this order be sent to Home Secretary Sindh and Provincial Police Officer Sindh for
initiating appropriate action against the delinquent officials, with a further direction that all
necessary steps be taken to prevent such flagrant abuse of authority by police officials in future.

Let copy of the order be for warded to learned Member Inspection Team also for necessary
action.

H.B.T./M-45/K Bail granted.

1846
2002 C L C 139

[Lahore]

Before Ijaz Ahmad Chaudhary, J

BASHIR AHMED ---Petitioner

Versus

Chaudhry GHULAM SARWAR NOOR, M.I.C., LAHORE and 3 others---Respondents

Writ Petitions Nos.2653, 2654 and 2829 of 1991, decided on 10th September, 2001.

Punjab Vagrancy Ordinance (XX of 1958)---

----S. 7---Constitution of Pakistan (1973), Arts.2A, 4, 10, 15, 25 & 199---Constitutional

petition---Arrest and search of vagrants---Restriction on begging---Violation of Fundamental
Rights---Petitioners who were of tender age, were rounded up by the police and were detained
under relevant provisions of Punjab Vagrancy Ordinance, 1958---Vires of various provisions of
the Ordinance were challenged by the petitioners on the ground that same were in violation of
the Fundamental Rights guaranteed by the Constitution of Pakistan (1973), as those had
encroached upon the free movement and free choice of profession of the
citizens---Validity---Begging as envisaged by Punjab Vagrancy Ordinance, 1958 had been
disapproved by Islam because beggars using fraudulent means of begging were professionals and
even though able bodied they prepared to remain idle---Begging had not been approved by Islam
except in the case of stress and dire necessity and begging by use of fraudulent means was
condemned---Provisions of Punjab Vagrancy Ordinance, 1958 were not repugnant to the
Injunctions of Islam -and it could not be said that the Ordinance was either contrary to
Fundamental Rights or was violative of Injunctions of Islam.

1847
PLD 1985 FSC 344 ref.

(b) Legislation---

---- Making of law---State could classify the people for the purpose of Legislation and make law
applicable only to persons of particular class.

Asfand Yar Walt's case PLD 2001 SC 607 ref.

(c) Constitution of Pakistan (1973)---

----Art. 25---Reasonable classification---Making of law---State should classify the people for the
purpose of legislation and make law applicable only to persons of particular class.

Ms. Asma Jahangir for Petitioner.

Muhammad Shan Gull for A.A.-G. for Respondents.

Date of hearing: 26th June, 2001.

JUDGMENT

1848
Writ Petitions Nos.2653, 2654 and 2829 all of 1991 are being disposed of through this judgment
as they arise out of similar circumstances and are based on identical facts and points of law. It
shall, however, remain on the file of Writ Petition 2654 of 1991.

2. The facts forming the background of these petitions briefly are that the petitioners numbering
16 in all are persons of tender age. They were rounded up by the local police from different parts
of Lahore and detained under the relevant provisions of the Punjab Vagrancy Ordinance, 1958
(Ordinance No. XX of 1958), hereinafter referred to as "The Ordinance".

3. The petitioners have, through these petitions, challenged the vires of various provisions of the
Ordinance mainly on the grounds, inter alia, that the provisions of the Ordinance are in violation
of the Fundamental Rights guaranteed by the Constitution. It has been claimed, in particular, that
under Article 10 of the Constitution, no one can be arrested or detained under any law providing
for preventive detention unless procedure laid down in sub-Article 10(4) is strictly complied
with. As the Ordinance clearly provides for preventive detention it obviously violates the
provisions of Article 10; that Ordinance seeks to penalize a particular and a selected class of
citizens hence it was discriminatory and offended against the provisions of Article 25 of the
Constitution and so also the essence of Article 15 of the Constitution by restricting free
movement of a citizen; that the petitioners who are destitute citizens and are absolutely innocent
have been deprived of their liberty illegally; that the action of respondents was obviously against
the spirit of Article 2A of the Constitution which envisages that principle of democracy,
freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed,
that in these petitions social justice has been denied to the people who have been detained
without any crime having been committed by them; that Islamically such type of poor persons
could not have been detained rather State would have been responsible for providing them
sustenance being resourceless and needy.

4. The respondents have stoutly resisted the petitions claiming, inter alia, that the Ordinance does
not violate, in any manner, any Fundamental Right of the petitioners inasmuch as section 7(3)
respects the requirements of Article 10(4) of the Constitution; that all the rights termed as
Fundamental Rights in the Constitution are subject to reasonable restrictions in the interest of
law and society in general; that the Ordinance provides for trial and, therefore, ensures fair
procedure which is an essential part of the due process of law guaranteed by Article 4 of the
Constitution. In fact that Ordinance basically requires that suchlike peoples are not to he allowed
to roam about in the Society and instead they are taken to welfare homes where they are
provided food and shelter. As for objection of discrimination, Article 25 of the Constitution
allows the State to make reasonable classification. This law obviously was made for a special
class of beggars and wanderers. As such there will be no question of discrimination.

1849
5. The arguments have been heard rather at length. The main emphasis of the learned counsel for
the petitioner was that the Ordinance encroaches upon the free movement and free choice of
profession of the citizens, hence was repugnant to various Fundamental Rights guaranteed by the
Constitution. It was also contended that since Pakistan was not a welfare State as the State has
failed to provide education, health care, employment benefits etc. to their citizens, there was no
justification for imposing such harsh restrictions on the poor and needy citizens of the country;
that instead of providing basic necessities to the citizens which is .a pre-requisite for a good
Government, they are being jailed without any lawful justification.

6. From the respondents side it was argued that establishment of welfare system was meant to
cater for the needs of poor, needy and jobless persons who had no means of livelihood and the
Ordinance was enacted for controlling and eliminating vagrancy and nobody's interest or right
has been infringed.

7. As for reasonable classification, it has been held time and again that State may classify the
people for the purpose of legislation and make law applicable only to persons of particular class.
Reference in this behalf may be made to Asfand Yar Wali's case PLD 2001 SC 607 where it was
held that NAB Ordinance was a special legislation meant for special class of people and,
therefore, cannot be struck down on the ground of discrimination.

8. The Ordinance has already been thoroughly examined by their Lordships of the Honourable
Federal Shariat Court as reported in PLD 1985 FSC 344. After discussion on the provisions of
the Ordinance, their Lordships had come to the conclusion that begging was not approved or
encouraged by Islam. There were several traditions of Holy Prophet (p.b.u.h.) in which it has
been decried as well as scorned. According to the view of their Lordships begging was only
allowed for three types of persons:--

(1) One who would be in poverty.

(2) One who has borne a great loss.

(3) One who had to gay huge amount in Diyat.

1850
Hence it is abunduntantly clear that Islamically begging has not been approved except in the case
of stress and dire necessity. The begging by use of fraudulent means was condemned. Finally the
provisions of Ordinance were approved by the Federal Shariat Court and it was held that
Ordinance was not repugnant to the Injunctions of Islam. Now after these findings of Federal
Shariat Court which had the jurisdiction to declare any law to be repugnant to Islam, it does not
befit us to say that Vagrancy Ordinance was either contrary to Fundamental Rights or was
violative of Injunction of Islam. If it was Islamically okay then it surely does not offend against
any Fundamental Rights.

9. In view of the findings of the Federal Shariat Court, I am afraid further examining about the
provisions of Ordinance would not be legitimate exercise on our part. However, I cannot refrain
from observing that such type of begging as envisaged by Ordinance has I clearly been
disapproved by Islam because such-like beggars are professionals and prefer to remain idle even
being able-bodied. Holy Qur'an describes the persons who really deserve charity:--

"S.II. 273 (Charity is) is for those in need, who, in God's cause Are restricted (from travel), and
cannot move about. In the land, seeking (For trade or work). The ignorant man thinks, Because
of their modesty, That they are free from want. Thou shall, Know them By their (unfairing)
mark: They beg not importantly From all and sundry. And whatever of good Ye give, be assured
God knoweth it well.."

I0. The charity, is only permissible to those who are really and genuinely needy and do not adopt
begging as a profession. It is, therefore, necessary for those who are charged with the
administration of this Ordinance to keenly observe that whether a beggar is adopting beggary as
a profession to avoid working and earning his livelihood and thus, becoming a parasite for the
Society. If he appears to be a professional and a repeater, the provisions of Ordinance are very
much applicable to -such a person. If, however, the relevant 'officials come to the conclusion that
the beggar has been impelled by circumstances to provisionally resort to begging and is not a
professional his would not be case of detention. I would, therefore, direct the administrative
department of the Ordinance to issue directions to all concerned that they should keenly observe
the persons and then come to the conclusion that whether they are professionals and thus, come
under the mischief of the provisions of Ordinance or are genuinely to be needy who are required
assistance and help from their well to do brothers in the Society. It appears that none of the
petitioners was still under detention. In these circumstances the petitions are dismissed with the
above direction to the Administrative Department who shall submit a compliance report to the
Additional Registrar (Judicial) of this Court within six weeks after the receipt of the copy of the
judgment. No order as to costs.

1851
H.B.T./B-54/L Order accordingly.

1852
2002 P T D 2850

[Karachi High Court]

Before Ata-ur-Rehman and Muhammad Mujeebullah Siddiqui, JJ

Messrs PAK OCEAN and others

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Central

Secretariat, Islamabad and others

Civil Petitions Nos. 970, 1068, 1349, 1541 of 1991, 519, 520, 871 and 872 of 1992, decided on
10th July, 2002.

(a) Customs Act (IV of 1969)---

----Ss. 18(2) & 19---S.R.O. 702(I)/90, dated 1-7-1990---S.R.O. 584(I)/91---S.R.O. 585(I)/91,

dated 27-6-1991---Constitution of Pakistan (1973), Arts. 2-A, 4, 18, 25 & 199---Constitutional
petition---Imposition of regulatory duty on import of steel scrap in loose form, while excluding
import of scrap in shredded and bundled forms---Reduction in rate of customs duty on shredded
and bundled steel scrap, while leaving intact duty on import of scrap in loose form---Such
change in duty structure was effected without reasonable classification and justification-Validity-
--Scrap in loose form was imported by small traders and such persons, who, did not have facility
of furnace, while shredded scrap and bundled scrap was primarily imported by big investors and
those having facility of furnace-.-End product i.e. billets, produced from scrap in shredded and
bundled form and loose form was the same---No difference in duty structure on import of scrap
in any of three forms prior to impugned Notifications S.R.O. 584 (I)/91 & 585(I)/91, dated 27-6-
1991---Government had failed to specify any reasonable basis for separate classification of the

1853
import of scrap in bundled and shredded form in one category and import of scrap in loose form
in other category---Such action was totally discriminatory against small investors/importers and
provided undue advantage to big capitalists and investors---In absence of sufficient material
justifying change in duty structure, treatment meted out to petitioners was arbitrary and mala
fide---Such exercise entirely stood vitiated being violative of equal protection of law guaranteed
by Arts. 4, 18 & 25 of the Constitution--High Court accepted Constitutional petitions, struck
down impugned Notifications S.R.O. 584(I)/91 & S.R.O. 585(I)/91, dated 27-6-1991 being un-
Constitutional and directed respondent to stop charging of regulatory duty and refund regulatory
duty and customs duty, if any charged in excess of customs duty prevailing before issuance of
impugned notifications.

Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; Collector of Customs, Excise and
Sales Tax, Peshawar, v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; Messrs
Central Insurance Co. v. The Central Board of Revenue, Islamabad 1993 PTD 766; M.A.
Rahman v. Federation of Pakistan 1988 SCMR 691 and Iqbal Akhtar v. Ch. Muhammad
Mushtaq PLD 1977 Lah. 1318 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 2-A, 4, 18, 24 & 25---Mala fide and colourable act-Unreasonable act---Act without any
basis and justification--Constitutional status of such acts elaborated. An Act, which is
established to be mala fide and colourable cannot be regarded as an action in accordance with
law and the rights guaranteed under the Constitution. If an act is not reasonable and is without
any basis and justification, it is always for extraneous and irrelevant, consideration and is bound
to be struck down being manifestly against the fundamental right guaranteed in the Constitution.
Such an Act of discrimination cannot be countenanced in an Islamic polity. Islam lays great
emphasis on the equality before law, equal protection under law, equal treatment in law, equal
opportunities, free competition in the regulation of trade, commerce and industries. No
discrimination of any kind is sustainable in a country, the Constitution whereof provides that the
State shall exercise its power and authority in accordance with the principles of freedom,
equality, social justice and guarantees the fundamental rights and opportunity before law and
economic justice.

Khalid Anwar for Petitioners.

Syed Tariq Ali, Standing Counsel for Respondents.

1854
Date of hearing: 19th February, 2002.

JUDGMENT

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---A common question of law has been raised
in all the above petitions, therefore, all the above petitions have been heard together and are
disposed of by this single judgment.

C.P. No. 970 of 1991 is treated as the leading petition and for the sake of convenience the facts
are taken from the said petition.

Following relief has been sought in C.P. No. 970 of 1991:---

"This Hon'ble Court maybe pleased to---

(1) declare the imposition of regulatory duty on remeltable iron and scrap in loose form and the
grant of exemption to importers of bundled and shredded scrap through Notifications No. S.R.O.
91, dated 27-6-1991, to exercise of power under sections 18(2) and section 19 are unlawful, mala
fide, arbitrary, unreasonable, and in violation of Articles 4, 18, 24, 25, 77 read with Article 2A of
the Constitution;

(2) declare that the exercise of discretionary power under sections 18(2) and 19 of the Customs
Act can only be exercised in such manner and subject to such limitations as prescribed by law;

(3) direct the respondent No.3 to stop charging the petitioner the regulatory duty;

1855
(4) direct the respondent No.3 to refund the customs duty charged and paid, if any, in excess of
the just and proper rate;

(5) declare that section 31-A of the Customs Act is violative of the Constitution;

(6) direct the respondents to protect the L/Cs opened prior to 27-6-1991"

2. In all other petitions similar relief has been sought, although grounds have been couched in
different language.

3. The relevant facts are that the petitioners are importers of remeltable iron and steel scrap in
loose form, from various countries. The said scrap is classified under PCT heading No.72.04
(7204.4900). The said remeltable iron and steel scrap loose form, as well as bundled and
shredded scrap are primarily used in the manufacturing of billets. All of them are classified as
remeltable iron and steel scrap. The steel scrap in loose form is generally imported by small
businessmen, while shredded scrap and bundled scrap is primarily imported by large
businessmen who order huge consignments.

4. Prior to 27-6-1991 the customs duty on all forms of scrap was Rs.1,500 per metric ton and the
sales tax was 12.5%. There was no difference in the duty structure of iron ad steel remeltrable
scrap imported in Pakistan in loose, bundled or shredded form.

5. The petitioners entered into binding contract with sellers in foreign countries prior to 27-6-
1991 for the import of remeltable iron and steel scrap. They opened irrevocable letter of credit as
well. The consignment arrived after 27-6-1991. On arrival of consignment, the landed cost
increased tremendously because of change in the duty structure and imposition of regulatory
duty. Prior to 27-6-1991, there was no regulatory duty on import of scrap on any form. Vide
Notification No.Nil/91, dated 27-6-1991, the respondent No.1, Government of Pakistan through
Ministry of Finance, in exercise of powers under section 18(2) of the Customs Act, 1969
amended the Notification No. S.R.O. 702(I)/90, dated 1-7-1990 and imposed regulatory duty of
Rs.1.500 per M.T. on all forms of remeltable iron scrap excluding bundled and shredded scrap of
iron and steel. PCT heading No.7204.4100. On the same day another Notification No.Nil/91, was

1856
issued by the respondent No. 1, in exercise of powers under .section 19 of the Customs Act,
1969, thereby reducing the rate of duty on shredded and bundled iron and steel, from Rs.1,500
per M.T. to Rs.500 per M,T.

7. It is contended by the petitioners that the imposition of regulatory duty on remeltable iron
scrap, excluding bundled and shredded scrap and the reduction in the rate of duty on bundled and
shredded scrap is unlawful, arbitrary, unreasonable and ultra vires the Articles 4, 18, 24 and 25
of the Constitution. It is further averred that the said imposition of regulation duty is without
reference to international ruling prices, proper analysis and investigation. According to
petitioners, the grant of exemption to the importers of bundled and shredded scrap is
unreasonable and arbitrary as both types are used for exactly the same purpose. The result of
discrimination is that the iron and steel scrap imported in loose form by the petitioners has
become very expensive as compared to the imports by big businessmen in the form of bundled
and shredded scrap. The petitioners have further expressed grievance that the Customs
Authorities have further increased the ITP value of the consignment imported by .the petitioners
at U.S, Dollars 160 per metric ton, while they have reduced the ITP value of shredded scrap to
U.S. Dollars 140 per M.T. According to petitioners this action is calculated to solely benefit the
owners of the furnaces who are large imported of shredded scrap. The petitioners have alleged
that the action per se is mala fide.

8. The petitioners have further submitted that while presenting the budget, the Hon'ble Finance
Minister had assured the business community that no duty will be imposed de hors the budget.
The petitioners on the said assurances had entered into binding contract with the sellers to import
scrap. Similar assurances were given to the importers of sugar and the exporters of yarn and in
pursuance of the said assurances benefit was extended to the importers/exporters of sugar yarn
and their letters of credit opened up to a particular specified date were protected. It has been
urged that the failure to protect letters of credit opened by. petitioners, vis-a-vis, as done in the
case of sugar and yarn, is unreasonable and discriminatory. It is stated by the petitioners that tile
effect of the Notifications, dated 27-6-1991, is the net increase in the duty to Rs.4,669 per M.T.
in respect of the import of scrap in loose form while in the case of import of shredded scrap, the
duty has been reduced to Rs.1,648 and on bundled scrap to Rs.1,608 per M.T. The said
discrepancy in the rate of duty will have a crippling effect on the business of the petitioners who
are small importers of remeltable iron and steel scrap and cannot afford to purchase bundled or
shredded scrap. The very survival of the petitioner is at stake as the landed cost of the petitioners
has increased to Rs.9,200. P.M.T. while the price of the remeltable iron and scrap in loose form
is approximately Rs.6,200 P.M.T. The landed cost of the shredded and bundled scrap is
considerably lower than its selling price of Rs.6,500. The petitioners in order to remain in the
business have to sell at a loss of Rs.3,000 per metric ton. According to the petitioners, the
schedule of duty payable after 27-6-1991 on remeltable iron and steel scrap in shredded, bundled
and loose form is as under:---

1857
Name of Product Rate of Duty R. D. Total Duty
Per Metric Ton.
Shredded scrap Rs.500 - Rs.1648
Binded scrap Rs.500 - Rs.160,8
Loose Form Rs.1500 Rs.1500 Rs.4669

9. Prior to the imposition of regulatory duty, the total duty on import of scrap on loose form was
Rs.2,883 with the imposition of regulatory duty, there is an increase of Rs. 1,836 P.M.T. Prior to
27-6-1991, the importers of bundled scrap were also required to pay same amount as payable by
importers of scrap in loose form but after 26-7-1991, they have to pay Rs.1,648 and Rs.1,608 per
metric ton, only thus enabling the large importers and owners of furnaces to make windfall
profits as their landed cost has fallen while that of the petitioners has increased. The grievance of
the petitioners is that they have been arbitrarily and unreasonably discriminated against, vis-a-
vis, the importers of shreded and bundled iron and steel scrap through the medium of imposition
of regulatory duty and simultaneous exemption to the bundled and shredded scrap and the
increase in the ITP value. They have pleaded that tile power to impose regulatory duty and
simultaneously to grant reduction to sub-class cannot be done in a manner to cause loss to the
petitioners. It is further contended that the power to impose regulatory duty has been exercised to
cause irreparable loss to the petitioners for the reasons other than to protect any local industry or
trade or balance anything whatsoever.

10. According to petitioners the exercise of powers under section 18(2) and section 19 of the
Customs Act, is an exercise of discretion under a legislative framework. The power under section
18(2) is exercisable conditionally after properly ascertaining the correct price level and after
proper investigation. The respondent No.1, has no original power of taxation and the delegated
authority has been exercised in an oppressive and unjust manner. All the three forms of scrap
imported in Pakistan were classified under the same PTC heading 72.04. There was no difference
in the duties on all the 'three items of iron and steel scrap. Through the arbitrary exercise
irrational classification based on no objective criteria has been made. A discriminatory treatment
has been given to the importers of iron and scrap in loose form, vis-a-vis, the importers of iron
and scrap in bundled and shredded form. According to the petitioners this distinction and
discrimination is unlawful and violative of Article 25 of the Constitution read with Article 2A of
the Constitution. The petitioners have assailed the imposition of regulatory duty on import of
iron and steel scrap in loose form simultaneously granting exemption of iron and steel in bundled
and shredded form and other reduction of custom duty on importers of bundled and shredded
scrap as unlawful exercise of discretion and liable to be struck down because of the apparent
mala fide as the purpose is to benefit the importers of shredded and bundled scrap and the
owners of the furnaces who buy shredded scrap in bulk. It is alleged that it is ultra vires the
fundamental rights and Article 18 and 24 of the Constitution and is consequently void.

1858
11. The respondent No.3, in its para-wise comments has taken plea that the decrease on the duty
of shredded and bundled scrap and the imposition of regulatory duty on remeltable scrap is in
accordance with the provisions of Customs Act, 1969. Regarding the fixation of ITP, in respect
of shredded scrap and the loose scrap at U.S. Dollars 140 per metric ton, and U.S. Dollars 160
per M.T. it has been stated that the value has been fixed considering the prices of shredded scrap
in the international market. It has been alleged that the value of loose scrap is higher in the
international market as compared to shredded scrap. According to respondent No.3, the loose
remeltable scrap generally consists of large portion of rerollable and serviceable items/auto parts
and for that reason the value of loose scrap has been fixed higher than the shredded scrap.

12. The comments of respondents No.2, has also been placed on record which are contained in
the letter, dated 17th May, 1993, addressed to the Collector of Customs (Appraisement), Custom
House, Karachi, which contains the rationale for reducing the rate of duty on shredded and
bundled scrap and levying regulatory duty on scrap other than bundled and shredded scrap. It is
stated in the above letter that the exercise to revise duty structure on iron and steel scrap was
undertaken in early 1991 because Pakistan Steel, Re-melters as well as ship-breakers had shown
reservations about the duty structure on scrap and the end products thereof and had persistently
been agitating for its review.

Under the directive of the Finance Minister, a meeting was held on 21-2-1991 with the
representatives of the three groups under the Chairmanship of Deputy Chairman, Planning
Commission, to understand their problems regarding tax structure on the steel industry. During
the meeting, all the groups strongly agitated against lower rate of duty on the import of re-
rollable scrap and proposed that a uniform high rate of duty be fixed on all scrap other than
shredded and bundled scrap, as was the case prior to 1987. Till 1987 all scrap other than
shredded and bundled scrap was being assessed as one category at a uniform rate of duty which
had not only eliminated the misdeclarition and the classification disputes in the import of scrap
but also protected the interest of local industry adequately. To further analyse the price structure
of iron and steel products a meeting was again held with the representatives of Pakistan Ship-
Breakers Association and Pakistan Steel Re-Melters Association on 28-5-1991, under the
Chairmanship of Deputy Chairman, Planning Commission. The representatives of Pakistan Steel
Re-Melters Association pointed out that the local manufacturers of ingots and billets were facing
adverse competition from the importers of re-rollable scrap and the low price of Pakistan Steel
billets was affecting marketability of their products. The representatives of Ship-Breakers
Association stated that ship-breaking industry had been on the decline since past few years due
to high prices of ships meant for breaking. They expressed apprehension that any revision in the
duty structure to the detriment of ship breaking industry will result in the total closure of this
industry. It was pointed out to ship-breakers that in the previous meeting they had accepted a
duty differential of Rs.500 between re-meltable scrap and ships for breaking and the position had
not materially altered since then. They reluctantly accepted this position. After listening to the
view points of the representatives of Pakistan Ship-Breakers Association and Pakistan Steel

1859
Melters Association, the following recommendations were formulated in the meeting under the
Chairmanship of Deputy Chairman, Planning Commission:---

(i) Customs duty on shredded and bundled scrap falling under heading 72.04.4000 may be
reduced from Rs.1,500 P.M.T. to Rs.500 P.M.T.

(ii) Customs duty on all other items under heading 72.04 may be fixed at Rs.3000 P.M.T.

(iii) Customs duty on ships for breaking may be reduced from Rs.1,500 P.M.T. to Rs.1,000
P.M.T.

These proposals were later on submitted to the ECC who approved this duty structure and
accordingly the same was notified. It was the policy decision of the Government and the C.B.R.
was bound to notify the same.

13. The above explanation and rationale was given by the C.B.R. in reply to the letter written by
Collector of Customs (Appraisement) with reference to the plea taken on behalf of petitioners in
this. Court in C.P. No. 970 of 1991 and C.P. No. 1541 of 1991. The C.B.R. was informed that the
advocates for the petitioners have agitated a question of discrimination between; re-meltable
scrap other than bundled and shredded scrap and re-meltable scrap in bundled and shredded form
stating that both the categories of scrap are usable. for one and same purpose i.e. remelting and
as such rationale of discrimination of levying customs duty of lesser rate of shredded and
bundled scrap, vis-a-vis, remeltable scrap other than bundled/shredded need to be explained by
the Government. The Collector of Customs, had further informed the C.B.R. that the High Court
has directed the Collector to explain policy rationale of this decision. The Collector had
requested that the rationale for policy decision to charge the two categories of scrap to different
rates of customs duty -and the basis for increasing customs duty on one type of scrap and
reducing on the other should be explained by the Federal Government. In reply to the above
query the explanation was furnished as above. A comparative chart was also placed on record
showing duty structure of waste and scrap of iron and steel from the year 1985 to the year 1992,
which reads as follows:---

DUTY STRUCTURE OF WASTE AND SCRAP OF IRON OR STEEL

1860
 1985 1986
PCT Description Customs Sales Tax Customs Sales Tax
Heading Duty Duty
No.

73.03 (Old) Shredded & 30% Ad. Free Rs.418/m. Free

72.04 (H.S) bundled Vol. ton

73.03 (Old) Other than 70% Ad. Free Rs.418/m. 12.5%

sharedded Vol. ton
and bundled Rs.650/m.
ton Net
effect
should be
Rs.1070/m.
ton

1988 to 1991
Custom Duct Sales tax Customs Duty Sales Tax
Rs. 1000/m. ton Free Rs.500/m. ton 12.5%
Statuary rate was @ +10% Ad. Vol.
Rs.1500/m. ton
Rs.1070/m. ton 12.5 % Rs.1500/m. ton 12.5 %
+10%Ad. Vol. + R.
D @ Rs.1500/m.
ton

14 Heard Mr. Khalid Anwar, learned counsel for the petitioners and Syed Tariq Ali, learned
Standing Counsel for the respondents.

15. Mr. Khalid Anwar learned counsel for the petitioners submitted that all the three kinds of
scrap namely loose form, bundled form and shredded form, are used for re-melting and

1861
manufacturing of iron ingots and billets: He has further submitted that the import of bundled and
shredded forms require in large investment as well as possession of furnace for manufacturing of
end, product and therefore, the big businessmen having large capacity can afford to import the
iron scrap in bundled and shredded form. The small investors and businessmen can afford to
import the scrap3 in loose form only. It is imported by small traders as well. He has submitted
that the parawise comments and the explanation of C.B.R, placed on record, containing so-called
rationale for increasing the duty on the import of scrap in loose form and reducing the duty on
bundled and shredded form, does not contain any denial of the assertion that all the three kinds of
scrap are used or manufacturing the same end product. He has-further contended that a
comparative charge placed on record shows that before imposition of regulatory duty on re-
meltable scrap other than bundled and shredded scrap, the landed costs of loose re-meltable scrap
was Rs.7,148 while that of shredded scrap was Rs.7,314. The market sale price of loose re--
meltable scrap was between Rs.7,200 to Rs. 7,400, with profit of Rs.52 to Rs.252 per ton. In the
case of shredded scrap the market sale price was 7,500 to 7,600 per ton, with profit of Rs.186 to
Rs.264 per ton. The market price of the billets manufactured from loose re-meltable scrap as well
shredded scrap was from Rs.10,300 to Rs.10,500 per ton. After the imposition of customs duty,
the structure of landed cost of loose re-meltable scrap from middle East has increased to
Rs.9,075 while from the same sources the landed cost of shredded scrap has decreased to
Rs.5,874. The market sale price of loose re-meltable scrap is Rs.6,000 to 6,200 per ton, with the
result that such importers "have suffer loss of Rs.3,000 per ton on, sale of the scrap while the
importers of shredded scrap earn the profit of Rs.600 per ton. The market sale, price of billets
manufactured from both kinds of scrap was between Rs.10,300 to Rs.10,400. He has submitted
that the respondents could not deny the end product of all the three kinds of scrap is same. He
has further submitted that from 1966 to 1982 there was no difference of duty on the import of
loose scrap and shredded scrap. He further submitted that according to the chart prepared by
respondents themselves, the rate of customs duty was same on all the three kinds of imported
scrap prior to the change in duty structure In support of his contention he has produced relevant
extract from the Pakistan Customs Tariff, published the Customs House Karachi IIIrd, IVth and
Vth Addition. He has further submitted that in the explanation containing so-called rationale no
representation was given to the commercial importers, small traders and the small manufacturers.
He has vehemently argued that the entire exercise was mala fide as in the rationale furnished on
behalf of the respondents it is not shown that any protection was given to any local industry with
the imposition of regulatory duty and change in the structure of customs duty whereby on the
import of loose re-meltable Scrap custody duty of Rs.1,500 P.M.T. was retained while on import
of shredded and bundled form it was reduced from Rs.1,500 to Rs. 500 P.M.T. It is manifestly
against the principles of equality, equal protection for carrying on business, as well as the
principles of justice firmly enshrined in Holy `Qur'an' and Sunnah. He' has contended that the
entire exercise was mala fide and for the purpose of giving undue favour and advantage to big
importers and investors thereby crippling and totally destroying the business carried on by the
small traders and importers. According to him the impugned notifications are therefore, violative
of Articles 2-A, 4, 18 and 25 of the Constitution and such are liable to be struck down being
violative of the fundamental rights granted in the Constitution. Mr. Khalid Anwar has placed
reliance on the following judgments:--

1862
(1) Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121;

(2) Collector of Customs Excise and Sales Tax, Peshawar v. Messrs Flying Kraft Paper Mills
(Pvt.) Ltd. 1999 SCMR 709;

(3) Messrs Central Insurance Co. v. The Central Board of Revenue, Islamabad 1993 PTD 766;

(4) M.A. Rahman v. Federation of Pakistan 1988 SCMR 691 and

(5) Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318.

He has further submitted that the tax imposed by the impugned notifications on the import of
scrap in loose form being arbitrary militates against the principles contained in Article 77 of the
Constitution as well.

16. On the other hand Mr. Tariq Ali, learned Standing Counsel for the Federation has supported
impugned notifications. He has reiterated the version contained in the parawise comments filed
on behalf of respondent No.3 and in the letter, dated 17-5-1993, by the C.B.R. addressed to the
Collector of Customs (Appraisement). He has contended that the petitioners can, import the
scrap in bundled and shredded form instead of insisting for import of scrap in loose form. He has
further stated that the relief can be given to the petitioners to the extent of import already made
but no relief can be allowed in respect of the subsequent import.

17. Marshalling of facts, in the narrative part of judgment has sufficiently depicted the factual
aspects. Now we will take up the judgments cited by Mr. Khalid Anwar in support of his
contention that the impugned notifications militate against the principles of equality before the
law and equal protection under the law, enshrined in the Constitution.

18. With all due deference to the learned counsel for the petitioners, we are of the opinion that
the ratio in the cases of Iqbal Akhtar v. Ch. Mushtaq PLD 1977 Lah. 1318, M.A. Rehman v.

1863
Federation of Pakistan 1988 SCMR 691 and Messrs Central Insurance Co. v. The Central Board
of Revenue Islamabad 1993 PTD 766, are not relevant to the issue under consideration.

19. In the case of Ittefaq Foundry v. Federation of Pakistan (supra), the relevant facts were that
the petitioner was producer of semi-finished products for steel industry in Pakistan. It was
primarily producing billets. It was contended that other producers were producing similar
products with the nomenclature of ingot. According to petitioners, the billets and ingots were
used for entirely identical purposes and products, and .the only difference was of implying
different casting system and process for giving the shape. It was further stated that both ingots
and billets were taxed or exempted from tax in absolutely identical, terms year after year and the
petitioner on the assumption that the tax burden on goods produced by them would be the same,
produced large quantities of goods. However, additional burden of Excise Duty and Sales Tax
was imposed on the billets by the notification impugned in the cited petition which rendered the
sale of billets produced by the petitioner un-saleable. It was pleaded that the change in the policy
was calculated to cripple the petitioner who was engaged in producing the billets whose use was
exactly the same as that of ingots.

20. The case of the petitioner in the cited case was that traditionally duties and taxes were akin in
order to maintain parity of cost as both were meant to roll similar finished products and hence
the cost of production of both the items had to be equivalent. It was pleaded that the levy of
additional tax on billets places unreasonable burden on the producers of Billets specially the
petitioner who is the major producer of billet in the private sector and as such this action was
violative of Article 18 of the Constitution. It was urged that the Government had not disclosed
any basis or reason for giving different treatment to the two products which were being taxed in
the earlier years at the same rate. It was asserted that the delegated legislative authority was
abused and was exercised in mala fide manner, which was directed to put the petitioner out of
market.

In the written statement filed by Assistant Collector, Central Excise, a plea was taken that the
ingots and billets were two distinct products and were separately classified under Pakistan
Customs Tariff. It was further asserted that the cost of production of billets was muchless than
the cost of production of ingots. It was argued on behalf of Government that though billets' and
ingots were earlier subjected to identical rate of excise duty and sales tax and were being allowed
exemption from tax duty on identical terms, but from that it cannot be inferred and that would
not make both the products classifiable under one item. The plea of mala fide refuted contending
that the Courts cannot go into, or question the right of the Government to exempt one or the
other item and nobody can claim, as a matter of right, exemption from tax on any basis or that
any other item has been exempted. It was also urged that the grant of exemption from tax is the
matter of grace and exemption is granted by the Government taking into consideration various
factors, which are not subject to inquiry, investigation or jurisdiction of the High Court.

1864
22. Khalil-ur-Rehman Khan, J, (as his lordship then was) observed that the petitioner felt
aggrieved as in the matter of allowing exemption from payment of Excise Duty and Sales Tax,
the Federal Government in exercise of delegated power has given to its product, billet, a
treatment different from that extended to the producers of ingot as eventually the producers of
billet have been made to pay excise duty and sales tax at higher rates.

23. After a brief survey of the treatment given to the two items in earlier years it was observed
that, the different treatment came to be accorded since 1989 by the Federal Government, in
exercise of the delegated power vesting under section 12-A of the Central Excises and Salt Act,
1944 and section 7 of the Sales Tax Act, 1951. It was further observed that the plea that
scientifically and technically and as per Pakistan Customs Tariff which follows Brussels
Nomenclature and Harmonized Commodity Description and Coding System, both these products
have been classified under separate heading and as separate items, is not relevant.

24. The contention that the delegated legislative power was abused and the levy of Excise Duty
and Sales Tax on two products at different rates was discriminatory, unreasonable, irrational and
prejudicial to the public interest was examined in the light of the provisions contained in Articles
4, 18 and 25 of the Constitution of Islamic Republic of Pakistan and the principle that the
exercise of delegated legislative power like any other administrative or executive power can be
subjected to judicial review on the ground of Wednesbury reasonableness. It was observed that
the plea that discretion vesting in the Government, whether in the matter of tax or in the
executive field, is to be exercised in a reasonable way was sought to be supported by citing the
following judgments:--

(i) Associated Provincial Picture Houses .Limited v. Wednesbury Corporation (1947 AER 680);
and

(ii) Congress v. Home Office (1976) 1 AER 697).

25. After referring the ratio of above judgments and the provisions contained in Articles 4, 18
and 25 of the Constitution of Islamic Republic of Pakistan, as well as various judgments from the
Supreme Court of India, the following passage from the judgment in the case of Ajay Hasia etc.
v. Khalid Mujib Sehravardi and others (AIR 1981 SC 487) was cited:

1865
"The doctrine of classification which is evolved by Courts is not paraphrase of Article 14 nor is it
the objective and end of that Article. It is merely a judicial formula for determining whether the
legislative or executive action in question is arbitrary and therefore constituting denial of
equality. If the classification is not reasonable and does not satisfy the two conditions referred to
above, the .impugned legislative or executive action would plainly be arbitrary and the guarantee
of equality under Article 14 would be breached. Wherever therefore, there is arbitrariness in
State action whether it be of the Legislature or of the executive or of an authority under Article
12, Article 14 immediately springs into action and strikes down such State action. In fact,- the
concept of reasonableness and non arbitrariness pervades the entire Constitutional Scheme and is
a golden thread, which runs through the whole of the fabric of the Constitution: "

26. The learned Single Judge further placed reliance on the following passage from the judgment
of Supreme Court of India in the case of Indian Express Newspapers (Bombay) Private Limited
v. Union of India and others (AIR 1986 SC 515):---

"75. In India arbitrariness is not a separate ground since it will come within the embargo of
Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be
confined to the grounds on which plenary legislation may be questioned, to the ground that it is
contrary to the statute under which it is made, to the ground that it is contrary to other statutory
provisions or that it is so arbitrary that it could not be said to be in conformity with 'the statute or
that it offend Article 14 of the Constitution.

76. That subordinate legislation cannot be questioned on the ground of violation of principles of
natural justice on which administrative action may be questioned has been held in Tulsipur Sugar
Company Limited v. Notified Area Committee, Tulsipur (1980) 2 SCR 1111; (AIR 1980 SC
882); Rameshchandra (1981) 2 SCR 886; (AIR 1981 SC 1127) and in Bates v. Lord Hailsham of
St. Marylebone (1972) 1 WLR 1373. A distinction must be made between delegation of a
legislative function in the case of which the question of reasonableness cannot be enquired into
and the investment by statute to exercise particular 'discretionary .powers. In the latter case the
question may be considered on all ground on which administrative action may be questioned,
such as, non-application of mind, taking irrelevant matters, into consideration; failure to take
relevant matters into consideration, etc., etc. On the facts and circumstances of a case, a
subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take
into account very vital facts which either expressly or by necessary implication are required to be
taken into consideration by the statute or, say; the Constitution. This can only be done on the
ground that it does not conform to the statutory or Constitutional requirements or that it offends
Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt be done merely on the

1866
ground that it is not reasonable or that it has not taken into account relevant circumstances which
the Court considers relevant."

27. While dealing with the plea taken by the counsel for Federation, that the exemption from tax
is the matter of grace and is granted by the Government taking into consideration, various factors
which are not subject to inquiry, investigation or jurisdiction of the High Court, the learned
Single Judge held as follows:---

"There is no cavil to the proposition that exemption exists only by virtue of Constitutional or
statutory provisions and that the right to immunity is not inherent in the persons or property
exempted and it cannot be claimed as a matter of right but in the Constitutional set-up, where
fundamental rights are guaranteed, to be treated in accordance with law is recognized as
inalienable right of a citizen. I do not accept the proposition that grant of exemption from tax is a
matter of grace as the statutory functionaries while framing rules or notifications with a view to
lessening the burden of the tax through grant of exemption from tax are not showing grace as a
king, dictator or an absolute ruler would do in his pleasure but are discharging the functions
assigned to them not in their pleasure but for achieving the objectives of the law and in public
interest."

28. While dealing with the jurisdiction of the Court reliance was placed on the observation of
Supreme Court of India in the case of Indian Express Newspapers (supra) as .follows:--

"We do not therefore, find much substance in the contention that the Courts cannot at all exercise
judicial control over the impugned notifications. In cases where the power vested in the
Government is a power which has got to be exercised in the pubic interest as it happens to be
here, the Court may require the Government to exercise that power in a reasonable way in
accordance with the spirit of the Constitution. The fact that a notification issued under section
25(1) of the Customs Act; 1962 is required to be laid before Parliament under section 159 thereof
does not make any substantial difference as regards the jurisdiction of the Court to pronounce
omits validity."

29. Further reliance was placed on the observation of Supreme Court of India in. the case of Ajay
Hasia etc. v. Khalid Sehravardi and others AIR 1981 SC 487 which reads as under:--

1867
"Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early
stages of the evolution of our Constitutional law, Article 14 came to be identified with the
doctrine of classification because the view taken was that Article forbids discrimination and
there would be no discrimination where the classification making the differential fulfils two
conditions, namely (i) that the classification is founded on an intelligible differentia which
distinguishes persons or thing that are grouped together from others left out of the group; and (ii)
that the differentia has a rational relation to the object sought to be achieved by the impugned
legislative or executive action."

30. The learned Single Judge thereafter observed that the question is, "whether power to grant
exemption has been exercised reasonably and with a view to achieve the objectives of the law
itself, and, whether the exercise of power is beyond the reach or power of judicial review vesting
in this Court and if this power vests, what is the scope and vesting of power of judicial review".

31. Reference was made in this behalf to the statement of law contained at the page 413 of
Corpus Juris Secudum (1954 Edition), which states that:-

"Exemptions are not based on the favouring of particular person or corporations at the expense of
taxpayers generally, or granted on any idea of lessening the burdens of individual property
owners, but are based on the accomplishment of public purposes, and are granted on the theory
that they will benefit the public generally or as a reward or compensation for services rendered in
the performance of some function deemed socially desirable. It has been stated that exemptions
are favoured on the theory that the concession is due to quid pro quo for the performance of
service essentially public by which the State is relieved pro quo from performing, and thus,
where the exemption from taxation serves the public, and not a private interest, it cannot be
regarded as a gift or donation of the public credit to, or in aid of, the individual, association, or
corporation in whose favour the exemption is declared, but without that concurring prerequisite,
an exemption becomes essentially a gift of public funds and indefensible both under public
policy of equal taxation and under the Constitutional safeguard of illegal taxation. "

32. Further reference was made to page 417, where it is stated that, "the Legislature cannot
delegate to the executive or administrative agencies or officers the power to exempt from
taxation or to exercise uncontrolled discretion with respect to exemption, and as far as the power
may be delegated the delegation must be regulated by some definition of policy and purpose".

1868
33. It was further held that the test of reasonableness has been consistently applied by the Courts
in England, United States and India. The following observation made by Lord Greene in the case
of Associated Provincial Picture House Limited v. Wednesbury Corporation (1948) 1 KB 223)
was referred:--

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers
familiar with the phraseology commonly used in relation to exercise of statutory discretions
often use the word `unreasonable' in a rather comprehensive sense. It has frequently been used
and is' frequently used as a general description of the things that must not be done. For instance,
a person entrusted with a discretion must so to speak, direct himself properly in law. He must
call his own .attention to the matters which he is bound to consider. He must exclude from his
consideration matters which are irrelevant to what he has to consider. If he does not obey those
rules, he may truly be said, and often is said to be acting `unreasonably'. Similarly there may be
something so absurd that no sensible person could ever dream that it lays within the powers of
the authority. Warrington L.J. in Short v. Poole Corporation (1926) 12 CH 66 gave the example
of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense.
In another sense it is taking into consideration extraneous matters It is so unreasonable that it
might almost be described as being done in bad faith; and in fact all these things run into one
another."

34. After referring the above judgments it was observed that the Supreme Court of India repelled
the contention that the notifications granting exemption were beyond the reach of the
administrative law, even though all the grounds that may be urged against an administrative
order may not be available against them. The learned Single Judge of the Lahore High Court
agreed with the observations of the Supreme Court of India. Thereafter, it was observed that the
provisions contained in Articles 2A, 3, 4 and 25 of the Constitution of Islamic Republic of
Pakistan were no way less to meaning and import than the due process of law' clause contained
in the American Constitution.

35. It was further held that the judgments delivered by the superior Courts in Pakistan under
1956 Constitution or during the period when the fundamental rights were not in force were to be
approached and understood keeping in view the afore-noted Articles of the present Constitution.
The observations made by Cornelius, J, (as his lordship then was) in the case of Messrs East and
West Steamship Company v. Pakistan (PLD 1958 SC 41), were also relied upon which read as
under:-

"It has already been remarked, the fundamental right of freedom to conduct any lawful trade has
been given by the citizens of Pakistan to themselves and may be regarded as an essential

1869
condition of their relationship among themselves, and with the State. The State has been directed
inter alia by Article 29 of the Constitution to provide for all citizens within the available
resources of the country facilities for work and adequate livelihood, trade is a form of livelihood
which has received particular notice and protection in the Constitution under Article 12 (Article
18 of 1973 Constitution) and it is, therefore, only reasonable that the power of the State to
regulate a trade by means of a licensing system should be construed in the light of the duty
imposed upon the State by Article 29 (Article 38 of 1973 Constitution) to provide for all citizens
facilities for adequate livelihood., It is also a general duty imposed upon. the State that it shall
endeavour to secure the well-being of the people and as been seen above under conditions of free
enterprise the well-being of the people requires that the conduct of trade carried on by
individuals should no be interfered with so long as it is being lawfully carried on If the proviso to
Article 12 (Article 18 of Constitution of 1973) be held to mean what the learned Attorney-
General contends for, a result might follow which may be expressed somewhat in the following
manner. The people of Pakistan first declare that those of them who wish to engage in trade, or
are engaged in trade shall be free to enter or continue in their trade and to conduct that trade
according to their discretion and choice, so long as it is lawful, In the next breath, the people of
Pakistan proceed to, say that the State, namely the Executive, to' which they entrust the power
vested in themselves, to be exercised for the advancement and well-being of the nation, may, in
the guise of a licensing system, interfere in the minutest detail with every process and practice
which any citizen-trader. The freedom which the citizens had guaranteed to themselves is thus
placed entirely at the disposal of the Executive to respect or destroy as it pleases ....Manifestly,
this is an interpretation which cannot be sustained. The people of Pakistan cannot be thought to
have declared a Fundamental Right only to provide immediately after for its destruction by the
Executive authority at its unrestrained discretion. Therefore, it is necessary in interpreting Article
12 that the substantial Fundamental Right of freedom of lawful trade should be preserved in the
`posh-and-pull' of interpretation as against the powers vested in the Executive. As has already
been pointed out above, the Executive was enjoined in clear terms to act for the well-being of the
people and so as to provide them with facilities to earn adequate, livelihood for themselves e.g.
by conducting lawful trade according to their discretion and choice, as befits an economy based
on the principle of free enterprise ....It follows, therefore, that the power of regulating by a
licensing system is not to be regarded as co-extensive with the power of control secured to a
tradesman in respect of the implements and equipment of his trade and every operation that is
required by the procedure of his trade. In principle also the words of a proviso are to be
construed strictly and confined to the special case which its words enact; it could be wrong to
construe those wounds as being co-expensive with those used in the purview, particularly where
the effect might be of bringing about a repeal of the purview. Therefore, it seems to me, that it is
incumbent upon a Court to interpret the words of the first proviso, to Article 12 in a limited
sense, in contrast with the plenary sense in which the words of the main portion of the Article are
to be understood. In my opinion, that limited sense is adequately expressed, in the extract which
I have cited above from Halsbury's Laws of England in relation to the Statutory Regulation of
Professions and Trades."

36. After referring to several judgments cited at the bar, the learned Single Judge of the Lahore
High Court observed that one of the main pleas was that different treatment to the products

1870
which. are physically same and are similar or are put to the same use, would be violative of the
equality clause and that where objects, persons or transactions essentially similar, are treated by
the imposition of different rate of tax, discrimination may result on account of refusal to make a
rational classification. Thereafter it was held that both ingots and billets were being akin for the
purposes of charging sales tax and excise duty till June/July, 1989: It was further held that:-

"It cannot be disputed that taxability is to be determined by the Legislature under Article 77 of
the Constitution and such power to remove the unfairness can be delegated as would entail
enquiry into the assessment of changing factors which necessitated reduction of burden at the
proper time and to the proper extent. Moreover, the grant of exemption with the view to remove
an unfair burden in exercise of delegated legislative power in a Constitutional set-up has to be
subjected to the rule of reasonableness and free from arbitrariness in the instant case, it was not
shown that since June/July, 1989 what changes took place in the market and what relevant
factors were considered for according different treatment to the two products which
hithertobefore were being taxed at par."

37. Dealing with the power of State for giving different treatment to different persons on the
basis of reasonable classification it was held that, "for the purpose of valid classification, what is
required is not some imaginary or unsubstantial difference but a reasonable and substantial
distinction having regard to the purpose of law".

38. Ultimately it was held that the different treatment given to billet, the product of the petitioner
in the cited case was arbitrary and unreasonable and as such the additional burden placed was
violative of equal protection of laws guaranteed by Article 4 read with Article 25 of the
Constitution of Islamic Republic of Pakistan and that the charging of excise duty and sales tax on
the basis of notification assailed in the cited petition was without lawful authority.

39. In the case of Collector of Customs, Excise and Sales Tax, Peshawar v. Messrs Flying Craft
Paper Mills (Pvt.) Ltd., 1999 SCMR 709, the principles laid, down in the case of Elahi Cotton
Mills Ltd. v. Federation of Pakistan PLD 1997 SC, 582, were reiterated as follows:--

"Additionally, while there is a power in the Legislature and other taxing authorities to classify
persons or properties into categories and to subject them to-different rates of taxes, there is none
to target incidence of taxation in such a way that similarly placed persons are dealt with not only
dissimilarly but discriminatory. "

1871
40. The subject of equal protection of law and power of classification has been dilated upon in
great detail by a Full Bench of the Dacca High Court in the case of Jibendra Kishore v. The
Province of East Pakistan PLD 1957 Dacca 1. In this judgment reliance has been placed on a
judgment from Supreme Court of India in the case of The State of Bombay and another v. F.N.
Balsara AIR 1951 SC 318. It has been held by the Supreme Court of India as under:---

"(7) While reasonable classification is permissible, such classification must be based upon some
real and substantial distinction bearing a reasonable and just relation to the object sought to be
attained, and the classification cannot be made arbitrarily and without any substantial basis.

41. It was further observed that the equal protection e has been borrowed from the American
Constitution. A passage was quoted from the treatise Constitutional Law of the United States"
(1936 Edition), passage 579 by Hugh Evander Willis as follows:-

"The guaranty of the equal protection of the laws means the protection of equal laws. It forbids
class legislation, but does not forbid classification which rests upon reasonable grounds of
distinction. It does not prohibit legislation, which is limited either in the objects' to which it is
directed or by the territory within which it is to operate. It merely requires that all persons
subjected to such legislation shall be treated alike under like circumstances and conditions both
in the privileges conferred and in the liabilities imposed, `The inhibition of the amendment was
designed to prevent any person or class of persons from being singled out as a special subject for
discriminating and hostile legislation. It does not take from the States the power to classify either
in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the
exercise of a wide scope of discretion, and nullifies what they do only when it is without any
reasonable basis. Mathematical nicety and perfect equality are not required: Similarity, not
identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a
classification, the existence of that state of facts must be assumed. One who assails a
classification must carry the burden of showing that it does not rest upon any reasonable basis."

42. Reference was made to a passage from Nichol's Book on Eminent Domain (3rd Edition,
Volume 1, page 403), as follows:---

"Any classification which discriminates between persons and corporations which is based on a
real difference, from the point of view of such .classification, is not violative of the equal

1872
protection clause, provided the distinction drawn is not arbitrary or unreasonable, and provided
further that all persons within the particular category are accorded equal rights and privileges."

43. Ratio of the judgment in the case of State of West Bengal v. Anwar Ali 1952 SCR 284, was
also referred which reads as follows:--

"In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification
must be founded on an intelligible differentia which distinguished those that are grouped
together from others and (2) that that differentia must have a rational relation to the object sought
to be achieved by the Act."

44. A Division Bench of this Court in the case of Pakistan Petroleum Workers' Union v. Ministry
of Interior, 1991 CLC 13 (Karachi) considered the scope and connotation of the expression
"equality before law" and "equal protection of law" under Article 25 of the Constitution of
Islamic Republic of Pakistan, Saleem Akhtar, J. (as his lordship then was) observed that the
concept of equality before law and principle of equal protection in law were for the first time
given and firmly practised by the Holy Prophet (p.b.u.h)". He further held that: "Therefore, it can
be traced as far back as 1,400 years, i.e. much before the Magna Carta, 14th Amendment of
American Constitution, Declaration of Human Rights and the Theory or Rule of Law as
enunciated by the Western Jurists".

45. It was further held as under:---

"The Constitution guarantees equality before law and equal protection of law to every citizen.
Any arbitrary discrimination or unreasonable classification of classes are completely alien to the
notions of equality before law and equal protection of law. The Constitution is not meant to serve
any individual, it serves the nation and the country. Constitution envisages development of
institutions and not individuals or class of individuals. It gives Government of Law and not
individual. It is in this perspective that the provisions of the Constitution have to be interpreted to
make it a living document which may accommodate the past, satisfy the present and serve the
future.

The equality should not be in terms of mathematical calculation and exaction. The equality must
be amongst the equals. The equality has to be between persons who are placed in the same set of

1873
circumstances. Article 25 does not envisage absolute equality of treatment to all persons in
disregard of the attending circumstances. Article 25 forbids class legislation but not reasonable
classification. However such classification should have some just and reasonable nexus with the
object of the Act and cannot be arcade without any basis. Where any enactment provides
different treatment, based reasonable classification having proper relation with the object of the
Act and unfettered discretion has not been conferred on the administering agency it is not hit by
Article 25.

Article 25 incorporates the concept of the rule of law. It prohibits, curtails and restricts
enforcement of law or exercise of power under law which confers arbitrary powers with
unfettered discretion. The law or the discretion conferred by it should be such that a citizen
should know in the normal course and circumstances what the decision possibly could be. Every
citizen has a right to know where he stands. This is another way to afford equal protection of law
to every citizen."

46. A Division Bench of the Lahore High Court held in the case of Government of Pakistan v.
Zafar Iqbal 1992 CLC 219, that, the equal protection theory prevents discriminate treatment of
individual or a group of individuals at the expense of other individuals or classes of the people
similarly situated. Evenhanded, fair treatment to every citizen is ordained by the Constitution.

47. Applying the above principles to the facts of the eases under consideration, we find that the
scrap imported in shredded form, bundled form and loose form are by and large used for the
same purpose. The only difference is that the scrap in the shredded and bundled form is imported
by the big investors and those having the facility of Furnace. On the other hand, the scrap in
loose form is imported by the small investors and traders and such persons who do not have the
facility of Furnace at their own disposal. However, the end-product produced from the scrap in
shredded form, bundle form and loose form is the same. Prior to the impugned Notification,
dated 27-6-1991 there was no difference in the duty structure on the import of scrap in any of the
three forms referred to above. Mere difference in PTC heading is inconsequential. The comments
filed by the respondents does not disclose any basis for different classification of shredded and
bundled scrap in one category and loose form in another category. Mr. Khalid Anwar has rightly
argued with vehemence that in the absence of sufficient material justifying the change in duty
structure, treatment meted out to the petitioners becomes arbitrary and mala fide with the result
that the entire exercise stands vitiated being violative of equal protection of laws guaranteed by
Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. We further find substance
in the contention of Mr. Khalid Anwar, that regulatory duty has been imposed on the import of
scrap in loose form without any reason and there is not a single word to suggest that it has been
imposed with the intention of protecting any local industry.

1874
48. After a very careful consideration of the entire facts and the principles governing the equal
protection of law and against the discriminatory treatment, enshrined in the Constitution of
Islamic Republic of Pakistan, we are, of the considered opinion that, the change in the duty
structure introduced through the two impugned notifications, dated 27-6-1991 under sections 39
and 18(2) of the Customs Act, 1969, whereby the custom duty on the import of shredded and
bundled waste and scrap has been reduced to Rs.500 P.MT and the custom duty of 1500 PMT
has been left intact on import of scrap in loose form and regulatory duty of Rs.1500 PMT has
been imposed on the import of scrap in loose A form only, excluding import of scrap in shredded
and bundles form suffers from arbitrariness. The Federal Government, has failed to specify any
reasonable basis for separate classification of the import of scrap in bundled and shredded form
in one category and the import of scrap in loose form in the other category. The effect of the
impugned notification is that the small investors and trader, in porting scrap in loose form shall
be totally ruined under the crushing burden of the duties so imposed and the big importers and
investors having facility of furnace at their disposal all earn huge profit which cats be termed as a
windfall profit. The action is totally discriminating against the small investors and importers and
provides undue advantage to big capitalists and investors. It creates such an imbalance which has
no justification at all, except that for the reasons best known to the competent authorities undue
advantage is being dolled out to the big investors/capitalists at the cost of small investors,
importers and traders. It is against the principle of free competition guaranteed under Article 18
of the Constitution, and the equal protection of law enshrined in Article 4 of the Constitution and
militates against the principles of equality before law and entitlement for equal protection in law
firmly ingrained in Article 25 of the Constitution of Islamic Republic of Pakistan. On the face of
it", the impugned action is arbitrary, devoid of any reason, made of reasonableness and such
arbitrary act cannot be termed but mala fide and colourable. An act which is established to be
mala fide and colourable cannot be regarded as an action in accordance with the law and the
rights guaranteed under the Constitution. If, an act is not reasonable and is without any basis and
justification, it is always for extraneous and irrelevant consideration and is bound to be struck
down being manifestly against the fundamental rights guaranteed in the Constitution. Such an act
of discrimination cannot be countenanced in an Islamic polity. The Islam lays great emphasis on
the equality before the law, equal protection under the law, equal treatment in law, equal
opportunities, free competition in the regulation of trade, commerce and industries. No
discrimination of any kind is sustainable in a country, the Constitution thereof provides that the
State shall exercise its power and authority in accordance with the principles of freedom, quality,
social justice and guarantees the fundamental rights and opportunity before law and economic
justice.

49. We are, constrained to observe that, in spite of guarantees provided in the Constitution, the
details whereof, we need not to dilate here, there is a constant tendency on the part of authorities
concerned to violate the fundamental rights and the basic and fundamental principles under
which the State should be governed and the conduct of the Government is to be regulated qua the
citizens. Most unfortunate aspect is, that, when one set of people are out of power, they are
grilled, oppressed and discriminated against by the men-in-authority. At that time they rush to
the Courts for redress of their grievances, remembering, and reminding all the principles of
equality before law, justice, equity and the fundamental rights guaranteed in the Constitution and

1875
they get relief from the Courts. However, when the same set of people are fortunate enough to
occupy the driving seat and are saddled with the responsibility of running the State, they forget
all those lofty principles of law, justice and equity and indulge in more worst kind of
arbitrariness, discrimination and illegalities, for petty benefits, which they themselves had faced
at the hands of other persons calling the shots.

50. Mr. Khalid Anwar, has mainly placed reliance on the judgment in the case of Ittefaq Foundry
v. Federation of Pakistan, PLD 1990 Lahore 121. In the cited case it was contended that the
petitioner was producer of billets and that there were other producers, producing ingots, the end-
product whereof was same. In order to economically ruin the petitioner in the cited case, duty
structure was changed in the year 1989 without reasonable justification and the change in the
duty structure was against the rights guaranteed in Articles 4, 18 and 25 of the Constitution. The
contention of the petitioner was accepted and the relief was allowed. However, with the change
in fortunes, the persons were feeling the pinch of oppression in the case of Ittefaq Foundry v.
Federation of Pakistan, became the rulers and thereafter, they very easily and conveniently
managed to forge the treatment given to them and got the duty structure changed through
notification assailed in these petitions, thereby deriving huge undue benefit at the cost of total
destruction of the small importers and traders of the scrap in loose form.

51. Consequent to our finding, that, the Notifications, dated 27-6-1991 changing the duty
structure under sections 18(2) and 19 of the Customs Act, 1969 are arbitrary, mala fide, unlawful
and violative of the fundamental rights enshrined in Articles 18 and 25 of the Constitution of
Islamic Republic of Pakistan read with Articles 4 and 2A, the petitions are allowed. We, declare
that imposition of regulatory duty on remeltable iron and scrap in loose form and granting of
exemption to the importers of bundled and shredded scrap through Notifications No. S.R.O.
584(I)/91 and S.R.O. 585(I)/91, dated 27-6-1991, in exercise of powers under section 18(2) and
section 19 of the Customs Act, are violative of the fundamental rights guaranteed in the
Constitution: The said notifications are hereby struck down being unconstitutional and direct the
respondent No. 3, to stop the charging of the regulatory duty through impugned notification and
to refund the regulatory duty and the customs duty if any, charged in excess of the custom duty
prevailing before the issuance of the notifications which have been struck down by us.

All the petitions are allowed as above.

S.A.K./P-46/K Petitions allowed.

1876
1999 Y L R 2226

[Karachi]

Before Rasheed A. Razvi, J

NAN FUNG TEXTILES LTD. ---Petitioner

versus

NICHIMEN & CO. (PAKISTAN) LTD. ---Respondent

Judicial Miscellaneous No.84 of decided on 24th December, 1998.

(a) Arbitration (Protocol and Convention) Act (VI of 1937)---

----Ss. 5 & 7---Foreign award—Enforcement of---Burden was on party contesting enforcement of foreign
award to prove that other grounds existed to resist the same--Ground of misconduct committed by
arbitrator could be termed as "any ground" to resist enforcement of foreign award---No law, either in
Pakistan or in England, permitted arbitrator to commit misconduct, it could, thus, be termed to be a
good ground to resist enforcement of foreign award under subsection (3) of S. 7, Arbitration (Protocol
and Convention) Act, 1937---Court was competent to refuse enforcement of award on "any ground "
other than mentioned in clauses of subsection (1) (2) of S. 7 of Arbitration (Protocol and Convention)
Act, 1937---Term "any ground" would include such grounds which were contrary/violative of Islamic
Injunctions, Objectives Resolution, Fundamental Rights and other laws of Pakistan.

1877
Messrs Alhaj Muhammad Keramat Ali & Co. Ltd. v. Messrs Amin Jute Mills Ltd., Chittagong PLD 1961
Dacca 452; Haji Tayab and 2 others v. Eastern Textile Mills Ltd., Chittagong and 12 others PLD 1970 Kar.
357; Messrs European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. PLD 1982 SC 407;
Messrs European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. 1984 SCMR 553; Leiserach v.
Schalit (1934) 2 KB 353; S.M. Fazail & Company v. Overseas Cotton Company PLD 1959 Kar. 320; 1984
SCMR 553; Messrs European Grain & Shipping Ltd. v. Messrs Polychem Company Ltd. PLD 1990 Kar. 254;
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Williams v. Willis 83 LJ KB 1296;
Dalmia Cement Ltd. v. National Bank of Pakistan (1974) 3 All ER 189; Messrs Barlas Bros. (Karachi) & Co.
v. Messrs Yangtze (London) Ltd. PLD 1959 Kar. 423; Messrs Yangtze (London) Ltd. v. Messrs Barlas
Brothers (Karachi) PLD 1961 SC 573; Nan Fung Textiles Ltd., Hongkong v: H. Pir Muhammad Shamsuddin
PLD 1979 Kar. 762; Nan Fung Textiles Ltd. v. Sadiq Traders Ltd. PLD 1982 Kar. 619; Ralli Brothers & Coney
Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC 83; Petrocon (Pvt.) Ltd. v. Hyderabad
Development Authority, Hyderabad 1990 MLD 1675; Hassanali & Co. Cotton (Private) Limited v. Poly
Coton S.A., 2-Rue, Andrien Vallin, 1201 Geneva, Switzerland and others PLD 1996 Kar. 416; Foreign
Awards and Maintenance Orders Enforcement (Amendment) (1962) PLD 1962 Central Statutes 607/31;
PLD 1979 Kar. 762; Sadiq Traders PLD 1982 Kar. 619; Dalmia Cement Ltd. (1974) 3 All ER 189; Hitachi Ltd.
and another v. Rupali Polyester and others 1998 SCMR 1618; Oil & Natural Gas Commission v. Western
Company of North America AIR 1987 SC 674; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and
others PLD 1994 Lah. 525; Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 (W.P.) Kar. 567; Succession
Certificate of Mrs. Parveen Akhtar PLD 1993 Kar. 280; Lt.-Col. (Retd.) P.G. Braganza v. The Border Area
Allotment Committee and another 1984 CLC 1479; Ismail and another v. Mst. Razia Begum and 3 others
1981 SCMR 68; Wali Muhammad Khan v. Ishak Ali Khan and others AIR 1931 All. 507; Haji Muhammad
Rafiq v. Shahenshah Jehan Begum PLD 1987 Kar. 180; Messrs Pakland Scientific Production v. Messrs
Pioneer Insurance Company Limited and another PLD 1991 Kar. 414; Sirbaland v. Allah Loke and others
1996 SCMR 575; Marines Ltd: v. Aegus Shipping Co. Ltd. and 4 others 1987 CLC 1299; Rally Brothers and
Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC 83; Bourgeois v. Weddell & Co. (1924)
1 KB 539; Cerrito v. North Eastern Timber Importers Ltd. (1952) 1 Lloyd's Rep. 330; French Government
v. Tsurushima Maru SS (Owners) (1921) 37 TLR 961; CA Wessanen's Koninklijke Fabrieken NV v. Isaac
Modiano Brother & Sons Ltd. (1960) 3 All ER 617; (1960) 1 WLR 1243; Re Fuerst Bros. & Co. Ltd. and
Stephenson (1951) 1 Lloyd's Rep. 429; Rahcassi Shipping Co. SA. v. Blue Star Line Ltd. (1969) 1 QB 173;
(1967) 3 All ER 301; Kawasaki Kisen Kaisha Ltd. v. Government of Ceylon (1962) 1 Lloyd's Rep. 424; Ives
v. Medcalfe (1737) 1 Atk 63; Fredrick E. Rose (Commodities) Ltd. London v. Munsoor Ali Tanning Co.,
Karachi NLR 1981 UC 175 at 190-191 and French Government v. Teuru Shima Maru (1971) 37 TLR 961
ref.

(b) Arbitration (Protocol and Convention) Act (VI of 1937)---

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----Ss. S & 7---Enforcement of foreign award---Misconduct of arbitrator---Proof---In order to enable party
to prove misconduct on part of its own arbitrator, High Court was competent to order examination of
said arbitrator on commission which would not mean that in all cases where allegations of misconduct
were raised, Court should invariably order examination of arbitrator--Such exercise should be ordered in
very rare and exceptional cases or where party raising such allegation, prima facie, established before
Court a case of misconduct of his arbitrator.

(c) Administration of justice---

----Principle---Principal object behind all legal formalities was to safeguard paramount interest of justice
and mere technicalities unless presenting insurmountable hurdle, should not be allowed to defeat ends
of justice---Procedure or rules were meant to foster cause of justice and party should not be burdened
with penalty except when positive evidence of negligence beyond explanation was available.

Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975
SC 678; Jameel Ahmed v. Late Saifuddin 1997 SCMR 260; Imtiaz Ahmed v. Ghulam Ali and
others PLD 1963 SC 382; Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others
1989 SCMR 883 and Jane Margaret William v. Abdul Hameed Mian 1994 SCMR 1555 ref.

(d) Stamp Act (II of 1899)---

----Preamble---Purpose of Stamp Act, 1899--Purpose of Stamp Act was not to invalidate any instrument,
but to protect public revenue.

Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 ref.

Bashir A. Shaikh for Petitioner.

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Hamza I. Ali for Respondent.

Dates of hearing: 14th, 27th, 28th and 29th October, 1998.

JUDGMENT

This is a petition under section 5 of the Arbitration (Protocol and Convention) Act, 1937 (hereinafter
referred to as the Act 1937") for enforcement of a foreign award, dated 1st May, 1974. In the first place.
I would like to observe that this proceeding should have been registered as a suit in s mw of subsection
(2) of the Act, 1937 as Rule 294 of the Sindh Chief Court Rules (O.S.) is not in conformity with sections) 5
and 6 of the Act, 1937. (For further reference see order, dated 31-8-1998, passed in A. Meridith Jones
Ltd. v. Usman Textiles Ltd. J.M. No.22 of 1998).

2. The undisputed facts of this case are that as a result of some five contracts executed between the
parties, during the period of 30th October, 1972 to 8th November, 1972, the respondents sold to the
petitioner some 6000 (six thousand) bales of cotton All these contracts contained a clause for arbitration
between the parties in case of any `dispute which was to be conducted in accordance with the rules and
regulations of the Liverpool Cotton Association Ltd. Liverpool, United Kingdom. It is alleged in the
petition that as a result of certain differences between the parties, the matter was referred by the
petitioner to the Liverpool Cotton Association. (for brevity sake hereinafter referred to as L.C.A.). On 1st
May, 1974, an award was pronounced whereby the respondent was directed to pay, to the petitioner, a
sum of U.S. Dollars 517,270.00 with interest at the rate of 10% per annum from the date of award till
realization. The respondent was further directed to pay a sum of U.K. £ 500 towards the fees and
expenses of the arbitration proceedings. It is claimed in the petition that the respondent filed an appeal
against the Award before the Technical Committee of L.C.A., which was dismissed and the award was
upheld by a judgment, dated 2nd May, 1975, whereby the respondent was required to pay, to the
petitioner, a sum of U.S. $ 642,943.36 with interest at the rate of 9% per annum on the amount of
award from 16th May, 1975 until the date of payment. The respondent was further required to pay a
further sum of U.K. £ 750.00 being the total cost of the Award. It is averred in the petition that since the
respondent failed to comply with the direction of the award, as contained therein, petitioner has filed
this petition seeking enforcement of the abovementioned foreign award with the following relief:

(a) Order that the said award be filed in this Honourable Court;

1880
(b) To pronounce judgment in terms of the said award;

(c) Award the cost of this application to the petitioner; and

(d) Order any other/further relief as this Honourable Court may deem fit to grant.

3. Before proceeding further, I would like to deal with one of the interesting features of this case. On
13th February, 1978, the respondent filed an application under Order XXVI, Rules 4 and 5 of the Code of
Civil Procedure, 1908, (hereinafter referred to as "C.P.C.") which was numbered as C.M.A. No.614 of
1978 with the prayer that one Mr. C.P. Bramble who was arbitrator from the respondent side during the
original arbitration proceedings and one more person namely the Secretary of L.C.A., be examined on
commission or on interrogatories. This application came up for hearing on the 20th August, 1978, before
this Court which was granted by Naeemuddin, J. (as his lordship then was) in the following manner:--

"Some of the objections taken to the award are:

That Mr. C.P. Bramble, was never appointed as arbitrator by the respondent. That no notice of
arbitration proceedings was ever given to the respondent who had no opportunity to present their case
before the arbitrator.

Mr. C.P. Bramble was one of the arbitrators who gave the impugned award.

In view of the above, I am of the view that examination of Mr. C.P. Bramble is necessary. It is not denied
that he is residing in England. Therefore, both the conditions laid down in the Rule 5 of Order XXVI,
C.P.C. are fulfilled in this case.

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The examination of witness No-2, is sought on the ground that he possesses the record of the
arbitration proceedings which can prove whether any notice was served or not on the respondent.
Therefore, the examination of this witness on commission is also necessary.

I, accordingly grant the application. The respondent to submit interrogatories within one month. The
petitioner shall also file cross-interrogatories, if any, within one month from the respondent.
Commission to issue thereafter returnable within three months. Costs of the commission and
Commissioner's fee will be borne by the respondent initially .... .

4. The above-noted order gives rise to the question, what is the scope of the present proceedings which
has been filed under section 5 of the Act 1937, seeking pronouncement of judgment in terms of the
Award and thereafter framing of decree in accordance with the award. Both the parties were directed to
make their respective submissions on this aspect of the case. It was argued by Mr. Hamza I. Ali that the
order for examination of witnesses on commission was passed some 20 years ago in the instant
proceedings which was acted upon and which had also attained finality as none of the parties filed any
appeal; therefore, as suggested by him, it is, a past and closed transaction and it cannot be re-opened
Secondly, there is no bar or prohibition in the Act, 1937, where-by a Court is prohibited from examining
any party in a proceeding arising out of the Act 1937. He has also referred to the cases Messrs Alhaj
Muhammad Keramat Ali & Co. Ltd. v Messrs Amin Jute Mills Ltd. Chittagong (PLD 1961 Dacca 452), Haji
Tayab and 2 others v. Eastern Textile Mills Ltd. Chittagong and 12 others (PLD 1970 Karachi 357), Messrs
European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. (PLD 1982 SC 407) and the case
Messr European Grain & Shipping Ltd. v. Messr Sargroh Oil Industries Ltd. (1984 SCMR 553). He has also
placed reliance on subsection (3) of section 7 of the Act, 1937, and argued that where the parties
resisting enforcement of foreign award on the grounds other than mentioned in subsections (1) and (2)
of section 7, the Court is competent to invite further evidence of the parties. He has emphasised
importance of such practice as far as instant case is concerned on the ground that there was an
allegation of misconduct against their arbitrator and the proceedings being conducted at Liverpool, U.K.,
no record was within the possession of either of the parties to prove such alleged misconduct of the
Arbitrator. In order to understand his arguments it would be pertinent if subsection (3) of section 7 of
the Act, 1937 is reproduced:--

"S.7. (1)………………………………………

(2) ……………………………………..

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(3) If a party seeking to enforcement of a foreign proves that there is any I than the non-existence of
conditions specified in clause and (c) of subsection (1), existence of the conditions specified in clauses
(b) and (c) of subsection (2), entitling him to contest the validity of the award, the Court may, if it thinks
fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as
appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have
the award annulled by competent tribunal."

5. The cases Muhammad Keramat Ali and Haji Tayab (supra) pertain to the interpretation of sections 16,
30 and 33 of the Arbitration Act, 1940. In the case Alhaj Muhammad Keramat Ali & Co. (supra), it was
held by a Division Bench of the then Dacca High Court, that "the question as to how many bales were
actually opened, is of a question relating to what happened before the arbitrators and if there was any
dispute with regard to it, the arbitrator could be called as witness to ascertain the same". Reference was
made to the case Leiserach v. Schalit (1934) 2 KB 353). The judgment in case Haji Tayab (supra) was
delivered by a Division Bench of this Court. In that case one of the grounds for attacking the award was
that it was invalid as the arbitrator neither issued any notice nor heard the appellants at any stage of the
arbitration proceedings. It was observed by the Division Bench of this Court that "in this connection we
would state that the least that could have been done in view of this being the main issue before the
learned Single Judge was to summon the arbitrator as a Court witness". The cases Leiserach and
Muhammad Keramat Ali & Co. (supra) were referred to. Reference was also made to an earlier decision
of another Division Bench of this Court in S.M. Fazail & Company v. Overseas Cotton Company (PLD 1959
Karachi 320) where it was observed that in a case where .allegations are made by parties against an
arbitrator or an umpire, it is always better to examine such umpire or arbitrator as Court witness to
meet the allegations made against him in respect of partiality. However, all these cases arise out of the
proceedings from Arbitration Act, 1940.

6. The case of European Grain & Shipping Ltd. as reported in PLD 1982 SC 407, is a leave granting order
while the same case is reported in 1984 SCMR 553 which is the order of appeal. One of the issues
framed in that case was whether the arbitrators have misconducted for which the trial Court granted
permission to the respondent/ appellant for examining two witnesses on commission who were
residents outside Pakistan. This question reached Supreme Court and the leave to appeal was granted to
consider, inter alia, whether in such a case, the only evidence that can be recorded against the
enforcement of the foreign award are that which relate to proving all or any of the grounds mentioned
in section 7 (1) and (2) of the Act, 1937, and whether evidence relating to misconduct in such
proceedings can only be confined to that kind of misconduct which is also regarded as breach of rules of
natural justice and not "misconduct" of general nature? However, it was not felt necessary by the
Hon'ble Supreme Court to decide these questions as neither the trial Court nor the Lahore High Court

1883
had by that time decided the question of law and the jurisdiction involved in that case. Thus, the matter
was remanded for decision on the legal and jurisdictional issues at an early date. These authorities do
not lend any support to Mr. Hamza Ali, Advocate. Both the learned counsel have candidly admitted that
there is no law on this question in so far as Act 1937, is concerned.

7. Section 7(1) of the Act, 1937 deals with the question of enforceability of a foreign award. Su section
(2) deals with the cases where a reign award cannot be enforced. Subsection (3) deals with a different
situation not covered by subsections (1) and (2). Section 7(3) of the Act 1937 enables a party to resist
the enforcement of a foreign award on grounds other than the mentioned in clauses (a), (b) and (c) of
subsections (1) and clauses (b) and (c) of subsection (2). The only condition laid down in subsection (3) is
that such party should prove that there is no other ground, other than the grounds mentioned earlier in
subsections (1) and (2). The burden is upon the party resisting the enforcement of foreign award to
prove that there exist other grounds to resist the enforcement of a foreign award. In my considered
view, the ground of misconduct committed by an arbitrator may be termed as "any ground" to resist the
enfordement of a foreign award. No law, either in Pakistan or in England, permits an arbitrator to
commit misconduct; therefore, it may be termed to be a good ground to resist the enforcement of a
foreign award under subsection (3) of section 7 of the Act 1937. I am fully conscious of an earlier
decision of this Court reported as Messrs European Grain & Shipping Ltd. v. Messrs Polychem Company
Ltd. (PLD 1990 Karachi 254) where it was held that the scope of section 7 of the Act 1937 is restricted
only to the grounds referred to therein and thus it cannot be liberally construed. A plain reading of
section 7(3) will show that the Court is competent to refuse enforcement of an award on "any ground"
other than mentioned in the clauses of subsections (1) and (2). Nowhere this term "any ground" as used
in section 7(3) is defined in the entire Act of 1937. In my humble view, it will include such grounds which
are contrary/violative of the Islamic Injunctions, the Objectives Resolution, Fundamental Rights and
other established laws of this country. (See: Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD
1990 SC 1 at pages 22/23).

8. How can a party prove misconduct of an arbitrator, when the arbitrator's proceedings were
conducted outside Pakistan? In the instant case, the entire record of the two proceedings, one held
before the arbitrators and, the second held before Technical Committee in appeal, are in the possession
of the Liverpool. Cotton Association (L.C.A.). For this limited purpose, and in order to enable the
respondent to prove misconduct on the part of their arbitrator, this Court was competent to order
examination of such arbitrator on commission. This does not mean that in all cases where allegations of
misconduct are raised the Court should invariably order the examination of arbitrator. This exercise
should be ordered in very rare and exceptional cases as of the instant case, or where the party raising
such allegations, prima facie, establishes before the Court a case of misconduct of his arbitrator. None of
the advocates have argued on the point as to what is the scope of misconduct in the matter of foreign
award. Thus, I would not like to dilate upon this question any further but would like to observe that in

1884
the instant case, it is alleged by the respondents that they never authorised the arbitrator to act on their
behalf. And that after giving a consent award, he appeared as their counsel at the appellate stage and
challenged his own award. Again, it is claimed by the respondents that they did not authorise the
arbitrator to act on their behalf before the Appeal Committee. If it is correct, then it may constitute one
of such cases falling within the scope of misconduct. To clarify this position I would like to refer the case
of Brooke Bond (Pakistan) Ltd, v. Conciliator and 6 others (PLD 1977 SC 237 at 267) where the term
"misconduct" in reference to an arbitrator appointed under provisions of the Industrial Relations
Ordinance, 1969, was considered in the following manner:--

“.... The term 'misconduct' used in connection with arbitration does not necessarily imply anything in the
nature of fraud or moral turpitude. In the judicial sense the misconduct of Arbitrator means his failure to
perform his essential duty, resulting in substantial miscarriage of justice between the parties. According
to Atkin, J. in Williams v. Willis (*) the words ' misconducted the proceedings' means such a mishandling
of arbitration as is likely to cause some substantial miscarriage of justice. In the American
Juris-prudence, Vol. 3, on pages 964-5, it is observed that awards which are valid on their faces may be
set aside in equity for misconduct on the part of arbitrators, and the extrinsic evidence is admissible to
prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the
arbitrators, either at the hearing, or in reaching their conclusions will frequently constitute misconduct
as will impeach an award..." (*) Williams v. Willis (83 LJ KB 1296).

9. Unfortunately this matter is pending for the last 22 years. For the first time, respondents tiled their
objections on 3-10-1977 raising as many as 23 objections. Now, due to lapse of time several objections
raised by the respondents have been answered by the different Courts in different proceedings and
therefore Mr. Hamza I. Ali has rightly confined his arguments to mainly five objections which are
reproduced as follows:--

(i) This is not a "Foreign Award" within the meaning of section 2 of Arbitration (Protocol and
Convention) Act, 1937 and is therefore not enforceable.

(ii) The Award is a copy which is not certified by Consulate General of Pakistan in U.K. as required by
Rule 298 of Sindh Chief Court Rules (O.S.).

1885
(iii) The power of attorney is inadmissible, firstly, as it is a photocopy and secondly it has not been
re-stamped under sections 3 and 18 of Stamp Act.

(iv) The application and Vakalatnama have not been duly signed under due authority.

(v) The Award is not enforceable having been made in violation of law governing arbitration procedure
and being contrary to public policy of Pakistan and due to misconduct of arbitrator Mr. C.P. Bramble.

10. Mr. Hamza I. Ali argued that in order to constitute foreign award three conditions are necessary,
namely, it should be result of an agreement for arbitration as set-forth in the First Schedule to the Act,
1937. Secondly, it should be between persons of whom one is subject to the jurisdiction of one of such
powers which the Federal Government has notified in the official Gazette and the other is subject to the
jurisdiction of some of the other powers. It was argued that at the relevant time when the award was
announced Hong Kong was a crown colony of the England and cannot be treated as another power.
According to learned counsel, this situation is not covered by the Notification issued by the Central
Government. It was further argued that the Foreign Award and Maintenance Orders, Enforcement
(Amendment) Ordinance, 1962 has not declared Pakistan to be power party to the Convention and
declared U.K. as one of the territories to which the Convention under Act 1937 applied; therefore, he
argued the respondent is not subject to the jurisdiction of his "Britanic Magesty". To summarize his
arguments, Pakistan has not so far declared itself power party to the Convention and therefore, the
conditions prescribed by section 2 of the Act, 1937, are totally absent, and, hence award made by the
arbitration of the Liverpool Cotton Association cannot be treated as foreign award. Learned counsel for
the respondent, has cited all the case-law, for and against his case which are as follows:--

(i) Dalmia Cement Ltd. v. National Bank of Pakistan (1974) 3 All ER 189).

(ii) Messrs Barlas Bros. (Karachi) & Co. v. Messrs Yangtze (London) Ltd. (PLD 1959 Karachi 423).

(iii) Messrs Yangtze (London) Ltd. v. Messrs Barlas Brothers (Karachi) (PLD 1961 SC 573).

1886
(iv) Nan Fung Textiles Ltd. Hongkong v. H. Pir Muhammad Shamsuddin (PLD 1979 Karachi 762).

(v) Nan Fung Textiles Ltd,v. Sadiq Traders Ltd. (PLD 1982 Karachi 619).

(vi) Ralli Brothers & Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. (1987 CLC 83).

(vii) Petrocon (Pvt.) Ltd. v. Hyderabad Development Authority, Hyderabad (1990 MLD 1675).

(viii) Hassanali & Co. Cotton (Private) Limited v. Poly Cotton S.A., 2-Rue, Andrien Vallin, 1201 Geneva,
Switzerland and others (PLD 1996 Karachi 416).

11. Mr. Hamza Ali, laid much emphasis on the interpretation of section 2 of the Act 1937. He stressed
that this provision envisages two separate powers which must have been declared as parties to the
Convention. On this premise, he argued that there is only one power mentioned in the notification
which is "His Britannic Magesty" while in the instant case, according to learned counsel, there are
parties belonging to two powers. He pointed out that the plaintiff is registered in Hong Kong, which is a
Crown Colony and the defendant Nichiman is subject of another power i.e. Pakistan. He has placed
much reliance on the case of Dalmia Cement Ltd. (supra) where the Queen's Bench Division, declined to
enforce the award requiring Bank of India to make payments to the Dalmia Cement Ltd. In that case, the
question involved was the definition of a foreign award as provided in section 35 of the English
Arbitration Act, 1950. That case was considered strictly from the point of view English Law vis-a-vis
Indian Arbitration Act, 1940 and the case of Pakistan was held to be different than the case before the
Queen's Bench. Reference was made to the Foreign Awards and Maintenance Orders Enforcement
(Amendment), (1962) (PLD 1962 Central Statutes 607) through which subsection (2) was introduced in
the Act 1937 which reads as follows:--

“.....(2) For the removal of doubt it is hereby declared that any notification issued under this section by
the late Government of India before the fifteenth day of August, 1947, and in force on that day for the
purpose of enforcement of foreign awards in British India, declaring any Power to be a party to the said
Convention or any territory to be the territory to which the Convention applies, shall be deemed to be a

1887
notification issued by the Central Government for the purpose of enforcement of foreign awards in
Pakistan .... "

12. Mr. Bashir Shaikh has referred to the cases Nan Fung Textiles, Ralli Brothers, Petrocon, and Hassan
Ali (supra). The question of reciprocal arrangement was considered by this Court in the both cases of
Nan Fung (supra). In the case of PLD 1979 Karachi 762 at 777 (Nan Fung Textiles), more or less same plea
as of Mr. Hamza Ali was taken by Mr. A. Rauf, Advocate who was opposing the enforcement of a foreign
award made as per rules and regulations of the Liverpool Cotton Association Ltd. In that case also, the
plaintiff was a firm of Hong Kong and the defendant was of Pakistan origin. Reference was made to the
judgment of Justice Kerr of Queen's Bench Division in the case Dalmia Cement Ltd. (supra) whereafter it
was held by Ajmal Mian, J. (now Chief Justice of Pakistan) that "It is the privilege or prerogative of the
Government of Pakistan to decide as to whether the award given in a particular foreign country should
be enforceable in Pakistan or not, notwithstanding that the country in which the award has been given
has not made any reciprocal arrangement for the enforcement of Pakistan awards as contemplated in
section 2 of the Act. The Government of Pakistan has expressed its intention not through a notification
but it has been manifested through an enactment and, therefore, I cannot decline to enforce the instant
award on the ground that in England no reciprocal provisions have been provided for the enforcement
of Pakistani awards………" This view was followed by another Judge of this Court Saleem Akhtar, J. (as his
lordship then was) in the case of Sadiq Traders (PLD 1982 Karachi 619). The arguments of learned
counsel for the respondent did not compel me enough to take a view contrary to the two decisions of
Nan Fung cases. The decision of Dalmia Cement Ltd. (supra) is of no help to the respondent as the
learned Judges of the Queen's Bench, have held that in Pakistan it is a different situation, in view of the
introduction of subsection (2) to section 2 of Act 1937. Following is the relevant observation from the
case of Dalmia Cement Ltd. (1974) 3 All ER 189 at 198):--

“.....It is also right to mention that the difficulty which faces me has been recognised in the municipal
law of Pakistan. This is shown by the decision of Supreme Court of Pakistan in Yangtze (London) Ltd. v.
Barlas Bros. (Karachi) (PLD 1961 SC 573) to which I was referred by counsel for the Bank. The Supreme
Court there held, in effect, that despite the continued operation in Pakistan of the India Arbitration
(Protocol and Convention) Act, 1937 by reason of section 18 of the Indian Independence Act, 1947, the
Republic of Pakistan was not a party to the Convention. This was remedied by the Pakistan Foreign
Awards and Maintenance Orders Enforcement (Amendment) Ordinance, 1962 which was enacted (for
the avoidance of doubt) retrospectively to 15th August, 1947, the date on which the Dominion of
Pakistan came into existence. While this illustrates the same difficulty in relation to the municipal law of
Pakistan, I mention it only for the sake of completeness. It has no direct bearing, since I have to decide
the issue on the basis of the law of this country. Unfortunately, if my conclusion in relation to the law of
this country is correct, then the position is that although the legation of both India and Pakistan since
1962 clearly appears to provide for satisfactory reciprocal arrangements in these countries for the

1888
purposes of section 35(1)(b) of the 1950 Act, the position in the United Kingdom is that further formal
Orders-in-Council are needed to fulfil the requirements of this section as a matter of English Law .... .

13. Recently in the case of Hitachi Ltd. and another v. Rupali Polyester and others (1998 SCMR 1618 at
1650) the Hon'ble Supreme Court, after reference to the cases as mentioned in para. 10 and other cases,
made certain distinctions in the foreign and domestic awards and held inter alia, that the nationality of
the award does not solely depend on the venue of arbitration proceedings. Reference was also made to
the case Oil and Natural Gas Commission v. Western Company of North America (AIR 1987 SC 674). The
two awards which were subject-matter of that case were held to be domestic awards as the same were
made on an arbitration agreement governed by the laws of Pakistan. In the instant case, it is not claimed
by the respondent that the constitution of arbitration and the proceedings before the arbitrators were
to be governed by the Pakistani Laws. I may also refer here to para. 633 of Vo1.2 of the Halsbury's Laws
of England (4th Edn. 1973) where foreign award has been defined as an award given after 28th July,
1924 "pursuant to an agreement for arbitration to which the Protocol on Arbitration clauses applies,
between persons subject to the jurisdiction of such powers as may be declared by Order-in-Council to
be parties to the Convention on the Execution of Foreign Arbitral Awards, and in one of such territories
as may be similarly declared to be territories to which the Convention applies". The present award has
all characteristics and ingredients of a foreign Award. (See: Messrs Rupali Polyester Ltd. v. Dr. Nael G.
Bunni and others (PLD 1994 Lahore 525).

14. As a result of the above discussion„ the objection of the respondent that it is not a foreign award is
overruled. Now, I will deal with the other objections that this award is not enforceable in Pakistan as
contended by Mr. Hamza Ali.

15. The second objection of the respondent pertains to non-filing of certified copy of the award. It was
argued by Mr. Hamza Ali that section 8 of the Act 1937, requires that the party seeking enforcement of
foreign award must produce, either the original award or a copy of such award duly authenticated in a
manner regarded by the law of the country in which it was made. It was contended that only a photo
copy of the award was filed which was neither authenticated in a manner as prescribed by law nor it
was attested by any officer of the Pakistan Embassy in England and, therefore, no presumption as to its
genuineness could be drawn as provided in Rule 298 of the Sindh Chief Court Rules (O.S.). It was argued
by Mr. Bashir A. Shaikh that the second objection raised by the respondent is misconceived as original
award, dated 1st May, 1974 stood merged in the appeal award, dated 2nd May, 1975, pronounced by
the Technical Appeal Committee and that original copy of Appellate award has been filed as Annexure

1889
"G" to the petition. He has further submitted that on 7th February, 1998, the original copies of the
authentication by the Notary Public, England alongwith statement on oath of Mr. W.J. Neotan, the then
General Manager of Liverpool Cotton Association, certifying to be true copies of the originals, were filed
in this Court. Both the advocates have referred to Article 89(v) of the Qanun-eShahadat, 1984 which
provides that to prove a public document of a foreign country, the requirement will be either its original
or a copy of certificate by Legal Keeper certified under the seal of a Notary Public or of a Pakistan
Counsel or Diplomatic Agent. Mr. Bashir Shaikh has also placed reliance on the case Farokh Homi Irani v.
Nargis Farokh Irani (PLD 1963 (W.P.) Karachi 567). In that case the objection was that the foreign
judgment which was produced before this Court and which was a judgment of the Bombay High Court,
was not in accordance with the section 86 of the repealed Evidence Act, 1872. I would like to stop here
for a moment to say that both the provisions of Evidence Act (now repealed) and Qanun-e-Shahadat as
referred above are identical. The objection raised was overruled by the learned Single Judge of this
Court Waheeduddin Ahmed, J. (as his lordship then was), in view of the fact that petitioner himself
admitted in the evidence that an ex parte judgment was passed by the Bombay High Court.

16. I have examined Annexure-G filed with the plaint which is a photo copy of an award signed by the
Chairman, Technical Appeal Committee. In respect of this photo copy, one Mr. Modood Ahmed Khan,
claiming to be the attorney of plaintiff, has filed his affidavit as Annexure-H to the plaint, stating on oath
that the original and appellate awards were made in pursuant to the arbitration agreement and that this
is the final and conclusive determination of the dispute between the parties. Therefore, Mr. Bashir A.
Shaikh was not correct when he said that the copy of award of Appeal Committee filed with the plaint
was duly authenticated. Further perusal of case file indicates that on 7-2-1998 the learned counsel for
the petitioner has filed original copy of Annexure-G to the plaint, as well as original of Annexure-I. Mr.
Hamza Ali has rightly objected on the mode of bringing original document on record as adopted by the
counsel for the petitioner; he went to the extent of saying that these documents were filed
surreptitiously by the plaintiff at the back of the respondent; therefore, such documents cannot be
considered.

17. It is not in dispute that an award was passed as a result of arbitration conducted under the Rules and
Regulations of L.C.A. This objection was raised initially in the year 1978, which is now being reiterated by
the respondent. But during this period, much development took place in this case. The respondents'
arbitrator, namely Mr. C.P. Bramble, was examined on commission by order of this Court as referred in
para. 3 above. No question was suggested by the respondent, on whose application such commission
was ordered, that no award was given. Even in the objections filed by the respondent, the
pronouncement of the two awards, one by the arbitrator, another by the Technical Appeal Committee,
have not been denied. It is the manner of proceedings and the conduct of arbitrator, which have been
challenged. It would be further relevant to refer to paras. Nos.7 and 8 of the concise statement, dated
22-9-1979 filed by the counsel for respondents for the purpose of forwarding interrogatories for the

1890
examination of witnesses. All these facts indicate that there was an award announced by the arbitrator,
which was confirmed by the Technical Appeal Committee of the Liverpool Cotton Association (L.C.A.).
The respondent has filed evidence as per provision of section 8(1) of the Act, 1937 to prove the Award
but at a belated stage and not in a befitting manner. During the final stages of the arguments, these
authenticated copies of award were available on the case file and to non suit the plaintiff, merely on this
technical ground, will be to press technicalities too far. Mr. Bashir A. Shaikh has placed reliance on the
cases Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC
678) where it was held by a Full' Bench of Hon'ble Supreme Court that the; object of procedural law,
legal formalities and. technicalities should not be allowed to defeat the ends of justice. Recently in the
case of Jameel Ahmed v. Late Saifuddin (1997'SCMR 260) it was held inter alia, by the. Supreme Court,
While reiterating the principle laid down in the cases Manager, Jammu and Kashmir State in Pakistan
(supra) and Imtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382 at 400) that "It is well settled that
principal object behind ail legal formalities is to safeguard the paramount interest of justice and mere
technicalities unless offering a insurmountable hurdle should not be allowed to defeat the ends of
justice". In the case Mst. Begun and others v. Mst. Begun Kaniz Fatima Hayat and others (1989 SCMR
883) it was held by a Full Bench of Hon'ble Supreme Court that the procedure or rules are meant to
foster cause of justice and that a party should not be burdened with penalty except when positive
evidence of negligence beyond explanation is available. Further reference can be made to the case of
Jane Margaret William v. Abdul Hameed Mian (1994 SCMR 1555 at 1563) where following observations
were made:--

“.....There was nothing in law which prevented the Court from treating the application under section
151, C.P.C. filed by respondent as cross objection to the appeal filed by the appellant, if it was otherwise
competent in law. It needs no mention that all rules of procedure framed for regulating the proceedings
before a Court or Tribunal are meant for advancing the course of justice. Therefore, procedural laws and
rules cannot be used as a means for denying the relief to an aggrieved party on ground of technical
non-observance of these rules or procedural laws ...."

18. As a consequence of aforesaid discussion, I overrule the second objection raised by Mr. Hamza I. Ali,
learned counsel for the respondents. This brings us to objections Nos.3 and 4 which I would like to
discuss jointly as both a;e inter-related. The third objection of the respondent is in respect of the power
of attorney and fourth in respect of the execution of Vakalatnama.

19. It was argued by Mr. Hamza I. Ali that the power of attorney filed with the petition was not
authenticated by the Pakistan Consulate at England or Hong Kong and that its photo copy was filed.
Reliance is placed on Article 95 of Qanun-e-Shahadat, 1984. However, he has not denied that the

1891
petitioner has filed originals of the said document on 7-2-1998. It will be pertinent to note that after
filing of this petition, office raised objection on the same day i.e., 8-11-1997 where one of the objection
was that the compliance of Rule 114 of Sindh Chief Court Rules (O.S.) has not been made. Sub-rule (1) of
Rule 114 requires filing of a power of attorney in Court in case a party is represented by a recognized
agent. Sub-rule (2) provides that the Deputy Registrar shall examine such power of attorney and if it
contains necessary powers shall make an entry to that effect at the foot of the proceeding and return
the power-of-attorney to the recognized agent. It is further provided in this sub-rule that where any
objection is raised by a party, the petitioner shall leave a copy of the power of attorney at the office of
the Deputy Registrar for inspection by the opposite-party or his advocate. From perusal of note at page
2 of the petition (reverse of page I) it would appear that the office objection raised for compliance of
Rule 114 was complied with by the petitioner. In case the respondent had any further grievance, he
should have applied for inspection of the said power of attorney as provided in sub-rule (2) of Rule 114
of Sindh Chief Court Rules (O.S.).

20. I have examined the original power of attorney which is, dated 24-4-1976 and duly notarised at Hong
Kong. It is countersigned by one Mr. Azfar Shafqat, Vice-Consular, Consulate General of Pakistan, Hong
Kong and is stamped with Rs.25 adhesive stamp. It appears from the office noting that its original was
shown at the initial stage in order to meet the office objection No. 1. Mr. Bashir Sheikh has referred to
the case In re: Succession Certificate of Mrs. Parveen Akhtar (deceased) (PLD 1993 Karachi 280) where a
learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his lordship then was), held, inter alia, that
the Stamp Act is a fiscal statute which is strictly construed and any ambiguity arising therefrom is to be
resolved in favour of the subject. It was further held that the power of attorney duly stamped in
Pakistan before its execution abroad, would not require re-stamping in Pakistan after its receipt from
abroad. I am of the considered view that since the power of attorney executed at Hong Kong was
already stamped at the office of Consulate General of Pakistan at Hong Kong, it does not require further
stamping in Pakistan.

21. It was submitted by Mr. Bashir Sheikh that the power of attorney was duly authenticated and
stamped before the Vice-Consular of Pakistan Embassy at Hong Kong and pursuant to the same
authority Vakalatnama was duly executed. He has relied upon cases Lt.-Col. (Retd.) P.G. Braganza v. The
Border Area Allotment Committee and another (1984 CLC 1479 at 1484), Ismail and another v. Mst.
Razia Begum and 3 others (1981 SCMR 68), Wali Muhammad Khan v. Ishak Ali Khan and others (AIR
1931 Allahabad 507), Haji Muhammad Rafiq v. Shahenshah Jehan Begum (PLD 1987 Karachi 180) and
Messrs Pakland Scientific Production v. Messrs Pioneer Insurance Company Limited and another (PLD
1991 Karachi 414). These authorities are not relevant as they pertain to defects in the plaint which can
be cured at a subsequent stage and for its non-compliance a party was held not to be non-suited. Here,
the objection of Mr. Hamza 1. Ali is that the power of attorney was not properly stamped as provided
under section 18 of the Stamp Act, 1899. Be that as it may, such bar is not so fatal to the maintainability

1892
of these proceedings that the award could not be set aside. Section 18 provides that every instrument
excluding bill of exchange and promissory note if executed out of Pakistan unstamped can be stamped
within three months after it has been received in Pakistan.

The only consequence which follows is that if such document is not properly stamped then the Collector
is entitled to recover duty and penalty. Recently, it was held by a Full Bench of Hon'ble Supreme Court in
Sirbaland v. Allah Like and others (1996 SCMR 575) that unstamped or improperly stamped instruments
were not invalid but subject to disabilities specified in section 35 of the Stamp Act, 1899. The purpose of
Stamp Act is not to invalidate any instrument but to protect the public revenue. Further reliance is
placed on the case Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978
SC 279).

22. It was contended on behalf of respondents that another defect fatal to the instant proceedings is
that the petition and Vakalatnama have been signed by one attorney while the power of attorney was
executed by the Directors of the petitioner in favour of two attorneys. I have examined the contents of
the power of attorney. Nowhere it is provided that the powers delegated through the said deed are to
be executed jointly by two attorneys. In absence of such specific clause, the power of attorney could not
be considered to be a joint power of attorney and, therefore, even if it is signed by one of the attorney,
it will be sufficient compliance of the rules. All these facts lead me to hold that these objections are not
tenable and are overruled.

23. It has been vehemently argued by Mr. Hamza I. Ali in support of his last objection that the award is
not enforceable having been made in violation of law and being contrary to public policy of Pakistan. In
this connection, it would be most relevant if para. 9 of the main objection is reproduced which reflects
the gist of the attack of respondents on these proceedings:

"9. From the foregoing facts it is patent that the entire arbitral procedure adopted in the above case is
contrary to law of arbitration and basic principles of law and natural justice and also against public policy
in inter alia following respects:

(i) The arbitrators were in consultations with each other and had pre-determined the dispute and its
nature when one of them was acting for the petitioners and the other for Yasin; the arbitrators thus
entered upon the reference with a bias;

1893
(ii) the arbitrators acted as agents of the parties instead of acting as impartial Judges;

(iii) Mr. C.P. Bramble was never appointed an arbitrator by the respondents;

(iv) no notice of arbitration proceedings was ever given to the respondents who had no opportunity to
present their case before the arbitrators;

(v) the arbitrators did not arbitrate in the proper sense of the term arid the resultant award is ex parte.
The Appeal Award based on the original illegal award is likewise illegal and unenforceable;

(vi) the arbitrators who were the Judges at the initial stage of arbitration appeared as representatives of
the respective parties, Mr. Bramble attacking his own award. The appeal award is therefore bad;

(vii) Mr. C.P. Bramble should have disagreed with Mr. Anderson and the arbitrators should have
appointed an Umpire, as it is obvious that the arbitrators could not have agreed to a joint award which
one of them, Mr. Bramble, was to attack before an Appeal Committee'

(viii) the arbitrators acted as Judges and parties in the same cause. If it is contended that the procedure
adopted was according to the practice prevailing in England or before Liverpool Cotton Association Ltd.
it is submitted that the practice even if proved is against principles of natural justice and of public policy
in Pakistan and is bad in law. "

24. To further elaborate his objection No.5, Mr. Hamza I. Ali argued that the last objection comprised of
three parts, namely:--

1894
(a) Irregular procedure adopted by the arbitrators shall be violative of the arbitration law;

(b) The Award being against public policy, could not be enforced in Pakistan;

(c) Misconduct of their arbitrator, Mr. C.P. Bramble.

In further support of his contention, it was argued by Mr. Hamza I. Ali that there was no direct and
proper appointment of Mr. C.P. Bramble from the respondents' side; no notice of hearing was given by
the arbitrators to the present respondents; no minutes of hearings were maintained and that no
representative of the parties was permitted to be present during the arbitration proceedings. It was
further stressed that Mr. C.P. Bramble acted as agent of the party and not as an impartial
Judge/arbitrator and that he approached the reference with predetermined ideas. In such background,
it was argued that the award being bad in law and being against public policy of Pakistan, is not
enforceable in view of subsection (3) of section 7 of the Act, 1937. Mr. Hamza I. Ali has placed reliance
on paragraphs 578 and 590 of the Halsbury's Laws of England, 4th Edition, Volume II, pages 302 and 306.
He has also referred to Rassel on Arbitration and the case Ram Lal Roshan & Co. v. B. C. Paul and Sons
(P.) Ltd. (AIR 1960 Calcutta 547).

25. Mr. Bashir A. Sheikh, learned counsel for the petitioner has argued that the award in question is fully
enforceable in Pakistan and that the same is not against the public policy or against any law of Pakistan.
It was argued that no English law of arbitration or any provisions or rules and regulations of Liverpool
Cotton Association were violated during arbitration proceedings. It is also denied that Mr. C.P. Bramble
has committed any misconduct. Mr. Bashir A. Sheikh has placed reliance on the case Marines Ltd. v.
Aegus Shipping Co. Ltd. and 4 others (1987 CLC 1299) which is a decision of this Court given by Saleem
Akhtar, J. (as his lordship then was). Relying on this case, it was argued that the grounds to challenge an
award on the point, of misconduct as envisaged in sections 30 and 33 of the Arbitration Act, 1940 are
not available in a proceedings for enforcement of a foreign award under the provisions of Arbitration
(Protocol and Convention) Act, 1937. In support of the contention that Mr. C.P. Bramble was duly
appointed as arbitrator on behalf of respondent, reliance was placed on the case of Rally Brothers and
Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. (1987 CLC 83).

1895
26. To some extent, I have discussed question of misconduct in reference to subsection (3) of section 7
of the Act, 1937 in paras. 7 to 9 above. Before proceeding further, it would be advantageous to
reproduce paras. 578, 590 and 622 from the Halsbury's Laws of England, 4th Edition, Volume II:--

"578. Powers of arbitrator acting in non-judicial capacity.--- Where the reference is made to two
arbitrators with power to appoint an umpire, and the umpire enters on the reference when the
arbitrators disagree, the arbitrators are functus officio as arbitrators. In such circumstances it is then
possible for the arbitrators to act in a non-judicial capacity. They may, for instance, give to the umpire
evidence of fact (Bourgeois v. Weddell & Co. (1924) 1 KB 539) or expert opinion, (Cerrito v. North
Eastern Timber Importers Ltd. (1952) 1 Lloyd's Rep. 330).

There is also a modern practice in some arbitrations where the parties expressly or impliedly agree, for
the arbitrators in such circumstances to appear at the hearing before the umpire as advocates for the
parties who appointed them (French Government v. Tsurushima Marti SS (Owners) (1921) 37 TLR 961,
CA; Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. (1960) 3 All ER 617).
Though they may in such circumstances waive any irregularity in procedure under their implied
authority (Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. (1960) 3 All ER
617, (1960) 1 WLR 1243), they cannot by virtue of their changed functions alter from those conferred by
the original terms of reference either their authority (Re Fuerst Bros. & Co. Ltd. and Stephenson (1951) 1
Lloyd's Rep. 429, Rahcassi Shipping Co. SA. v. Blue Star Line Ltd. (1969) 1 QB 173, (1967) 3 All ER 301) or
that of the umpire (Kawasaki Kisen Kaisha Ltd. v. Government of Ceyloan (1962) 1 Lloyd's Rep. 424 at
429)....

590. Times and places of meetings.-It is the duty of arbitrator, when called upon to act pursuant to the
agreement of reference, to appoint times and places of meeting and to give due notice thereof to the
parties. Where the reference is to more than one arbitrator, they should all concur in appointing such
times and places and in doing all other acts in the course of the reference, unless the agreement for
arbitration provides that the decision of the majority is to be binding (Ives v. Medcalfe (1737) 1 Atk 63 at
64) .....

622. What constitutes misconduct.--It is difficult to give an exhaustive definition of what may amount to
misconduct on the part of an arbitrator or umpire ....But even if the arbitrator fully complies with those
terms, he will be guilty of misconduct if he makes an award which on grounds of public police ought not
to be enforced .....

1896
(4) if there has been irregularity in the proceedings, as, for example, where the arbitrator failed to give
the parties notice of the time and place of meeting ....

27: In England, it is now established practice that where two arbitrators give a dissenting award they
become functus officio and are subsequently appointed by their parties to act before the umpire in
support of their respective cases. This aspect was considered by a learned Single Judge of this Court,
Nasir Aslam Zahid, J. (as his lordship then was) in the case of Fredrick E. Rose (Commodities) Ltd. London
v. Munsoor Ali Tanning Co., Karachi (NLR 1981 UC 175 at 190-191). In that case, reference was made to
the cases French Government v. Teuru Shima Maru ((1971) 37 TLR 961) and Wessanen's Koninklijke
Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. ((1960) 3 All ER 617). It was held that two principles
emerge from these cases i.e. (1) that hearing before the umpire is necessary, and (2) that in commercial
arbitration, a practice has been established in England that in case of disagreement between the patties'
nominated arbitrators, they become functus officio as arbitrators and then represented their respective
patties, who had nominated them, before the umpire. In the instant case, situation is different. Here,
both the arbitrators gave a consent award whereafter appeal was filed before the technical committee
directly by the respondent and subsequently to filing of such appeal, Mr. C.P. Bramble was appointed.
This fact was established during recording interrogatories at London.

28. Pursuant to the order of this Court, dated 20th August, 1978 whereby it was ordered that Mr. C.P.
Bramble be examined on commission, it appears from the perusal of evidence file that the matter of
examining these witnesses was placed before the High Court of Justice, England, Queen's Bench Division
where on 4th October, 1983, it was ordered by the Master in Chambers that both the witnesses namely,
Mr. C.P. Bramble and Mr. J.A. Wilson Smith will be examined by the District Registrar and accordingly
the entire record was forwarded with the certificate of Senior Master of the Queen's Bench Division as
provided under the Evidence (Proceedings in other jurisdiction) Act, 1975. During examination of Mr.
C.P. Bramble, some 112 questions were put. It was a very exhaustive examination. Mr. Bramble has
referred to several communications which he received from Pakistan and Hong Kong. He has also
produced these communications before the examining authority/District Registrar. One such letter was
exhibited and marked as C.P.B. 2 which is a letter, dated 23-8-1973 written by the Managing Director,
Nichimen Co. (Pakistan) Ltd. to Mr. C.P. Bramble. Through this letter, it was acknowledged that
respondent has received two copies of the award in respect of some other dispute. However, reference
was made to the present case and Mr. Bramble was asked to try his best that the dispute should remain
between Nan Fung and Yasin and not between N.F. and Nichimen Pakistan or Hong Kong. Then there is
another letter, dated 25th November, 1974 written by the respondent to the Director General, Liverpool
Cotton Association, England which is marked as J.W.S. 4 through which Mr. C.P. Bramble was appointed
as representative of respondent in place of another arbitrator. Prior to that the respondent had filed

1897
appeal before the Technical Committee directly but subsequently appointed Mr. C.P. Bramble as their
representative. There are correspondence earlier to that date.

29. The Secretary, Liverpool Cotton Association (LCA) Mr. J.W. Smith was also examined who stated that
he is Secretary to LCA since January, 1982. He told the examiner that no record of the arbitration
proceedings except the award itself are kept on the files of the Association. It was further stated by him
that the parties to an arbitration correspond directly with the arbitrators and any letters of appointment
are directly sent to such arbitrators. The Secretary, LCA had produced the letter from Nichimen & Co.
Pakistan Ltd. appointing Mr. C.P. Bramble as their representative on appeal which was marked as JWS-4.
He also admitted that respondent filed a direct appeal before the Technical Appeal Committee
but subsequently engaged Mr. C.P. Bramble as their representative. He also admitted that the original as
well as the award of the Technical Appeal Committee were against the respondent. The Secretary, LCA
has produced several documents from his file which include communications between LCA and the
respondent which also show that after the original award, the appeal was filed in person by the
respondent raising several allegations against their own arbitrator, Mr. C. P. Bramble but subsequently
they appointed him as their representative before the Technical Appeal Committee. This all shows that
the respondents acquiesced in the acts of their arbitrator. If there had been a genuine grievance to the
respondents in respect of the misconduct as allegedly committed by Mr. C.P. Bramble, their arbitrator,
why would have then again appointed him as their representative before the Technical Committee? This
act of subsequently engaging the services of Mr. C.P. Bramble at the appeal stage is fatal to the
objections of the respondent that Mr. C.P. Bramble was never appointed as one of the arbitrator. In
Pakistan it may be misconduct for an arbitrator who after giving a unanimous/consent award to appear
in another forum for the same patty against the award given by him. In this regard, I would like to refer
Rule 174, Chapter XII of Pakistan Legal Practitioners and Bar Councils Rules, 1976 which reads as follows:

"174. An advocate should not accept employment as an advocate in any matter upon the merits of
which he has previously acted in a judicial capacity .--- An advocate having once held public-office or
having been in the public employment, should not, after his retirement accept employment in
connection with any matter which he has investigated or dealt with while in such office, nor
employment except in support thereof.

30. In the instant case, the respondents want to take advantage of their own wrongs. Once they
have re-engaged the services of Mr. C.P. Bramble, they cannot be permitted to take the plea of
misconduct while seeking setting aside of the award and to deprive the petitioner of the fruits
thereof. If such acts of the respondents are upheld and the instant award is not made rule of the
Court, then, 'this will create a bad precedent and all such persons against whom a unanimous
award is passed, would ask their arbitrators to act on their behalf in appellate proceedings, in

1898
order to get the award frustrated. Whatever the arbitrator's conduct may be from the material
produced before this Court, it is clear that the party, appointing such arbitrator acquired in the
same. Now, such party is estopped from pleading the same before this Court. For this reason and
from the aforesaid conduct of the respondent, I am not inclined to hold that Mr. C.P. Bramble
committed any misconduct and that for this reason the award stands vitiated.

31. As a result of the above discussion, I am of the considered view that all the objections raised by the
respondents are not sustainable and they :Ire accordingly over-ruled. Result of such finding is that the

Award given by the Technical Committee of L.C.A. is made rule of the Court.

H.B.T./'N-105/K

Order accordingly.

1899
1997 P L C (C.S.) 1131

[Lahore High Court]

Before Faqir Muhammad Khokhar, J

MUHAMMAD ASIM and others

versus

TELECOMMUNICATION and others

Writ Petition No. 24389 of 1996, decided on 12th March, 1997.

(a) Constitution of Pakistan (1973)---

----Arts. 2A, 25, 27 & 199---Constitutional petition---Civil servant---

Termination of service---Petitioner's appointment on daily wages/ad hoc
or work-charge basis for number of years---Effect---Petitioners and
similarly placed employees had been discriminated against inasmuch as
number of other employees who were recruited like that of petitioner
but subsequent to petitioner and even other persons, who were not in
service, had been regularised/appointed on regular basis on political
considerations under directions of Prime Minister's Secretariat---Such
persons had been appointed without considering claim of sitting
employees with much more length of service for regularisation or
permanent appointment---Respondent's action in ignoring petitioners

1900
and other similarly placed employees was arbitrary and
discriminatory---Principle of first come, last to go was to be applied in
such cases---Fundamental rights of petitioners and other similarly placed
employees guaranteed under Arts. 2A, 25 & 27 of the Constitution were,
thus, grossly violated by respondent---Impugned action of respondent
against petitioners was declared to be without lawful authority and of no
legal effect---Process of termination of similarly placed employees was
also declared to be without lawful authority and of no legal effect
provided they were appointed before 1-1-1996 on daily wages/ad
hoc/work-charge basis with or without breaks---Respondent was directed
to formulate policy by specified date for purpose of consideration for
regularisation of service of employees Who were appointed before
1-1-1996 on daily wages etc. and had rendered service for 1,80 days or
more with or without artificial break.

Arif Ali v. Government of Pakistan 1994 PLC (C.S.) 178 and Amin Ahmad v.
Government of Pakistan PLD 1996 Kar. 27 ref.

(b) Constitution of Pakistan (1973)---

----Arts. 3, 14 & 199---Constitutional petition---Guarantees of social and

economic justice and Fundamental Rights---Entitlement---Company
created by statute--- Jurisdiction of High Court in respect of such
company---Duty of employer in matter of appointment of employees
stated. Constitution specifically provides for enforcement of Islamic
values and Islam being the State religion guarantees the social and
economic justice and fundamental freedoms and rights to the citizens.
The employer would not be allowed to dictate his terms of appointment
taking advantage of the absence of the bargaining power in the
employees and to force an employee to accept employment on take it or
leave it terms offered by the employer. The human dignity and better
conditions of work with proper remuneration has also been secured by
Articles 3 and 14 of the Constitution. The power of regularisation or
otherwise has to be free from arbitrariness. It is too late in the day to
take a position that Company which was created by Statute in
contradistinction of a Company created under a Statute was not subject

1901
to the jurisdiction of the High Court under Article 199 of the Constitution.
It is now well-settled that a Government Company created by the
provisions of the Statute itself was amenable to the jurisdiction of the
High Court.

Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lah. 840;

Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417;
Syed Mumtaz Shah v. Chairman, N.P.T. 1994 PLC (C.S.) 810 and State of
Haryana v. Payara Singh (1992) 4 SCC 118 rel.

Mushtaq Ahmad Qureshi for Appellants.

Hameed-ud-Din, Legal Adviser for Respondents.

Date of hearing: 12th March, 1997.

JUDGMENT

The petitioners were appointed on daily wages basis as Telephone

Operators in the Telephone and Telegraphic Department of the
Government of Pakistan in early 1990 and were adjusted in BPS-7. They
were continued in the service as Telephone Operators as on daily
wages/ad hoc of work charge since 1990 or on leave vacancy basis with
or without artificial breaks. By order dated 18-1-1997 the services of
petitioner No.2 were terminated by respondent No. 2. Similarly,
petitioner No. 1 was also threatened with the termination of service.
Both the petitioners moved the writ petition for securing their service
rights and calling in question the impugned action on the part of the
respondent.

1902
2. The learned counsel for the petitioners submitted that the
respondents were bound by law to regularise the services of the
petitioners as permanent workmen and to keep them as such in the
matter of their salary/wages/seniority and promotion, etc. He further
submitted that the petitioners and similarly placed employees had been
discriminated against in violation of Articles 25 and 27 of the Constitution
of Pakistan inasmuch as a number of other employees who were
recruited like that of the petitioners but subsequent to the petitioners
and even other persons who were not in service had been
regularised/appointed on regular-basis on political considerations under
the directions of the Prime Minister's Secretariat, Islamabad, during the
years 1995 and 1996. Not only that certain appointments were also made
in 1997 on regular-basis by the respondents by ignoring the petitioners
and other similarly placed employees in disregard of their seniority and
experience.

3. Ch. Hameed-ud-Din, Advocate, learned counsel for the petitioners

argued the case at length. He submitted that the Government
Department of Telephone and Telegraphic was converted into Pakistan
Telecommunication Corporation by Act No. XVIII of 1991 with effect from
15-12-1990 called the Pakistan Telecommunication Act. Subsequently,
there were some legislative changes introduced for the re-organization of
the Corporation and Ordinance No. XXIII of 1995 called the
Telecommunication Ordinance was promulgated with effect from
7-3-1995 whereby the organization was split into four authorities as
under:-

(i) Pakistan Telecommunication Authority;

(ii) Frequency Allocation Board;

(iii) National Telecommunication Corporation; and

1903
(iv) Pakistan Telecommunication Company Limited.

Under section 12 of the Ordinance, the employees of the Corporation

became the employees of Pakistan Telecommunication Company Limited
and ceased to be the employees of the Pakistan Telecommunication
Corporation from the date of the Company commenced its business, i.e.,
31-12-1995 when the Company was incorporated as a Public Limited
Company under section 154(2) of the Companies Ordinance, 1984, by the
Deputy Registrar of Companies, Islamabad. The learned counsel pointed
out that now Act No.XVII of 1996 called the Pakistan Telecommunication
(Reorganization) Act, 1996, has been enacted by the Parliament effective
from 31-12-1995 which is in the terms of Ordinance No. XXIII of 1995. The
learned counsel submitted that the petitioners were neither civil servants
nor were entitled to any legal protection in respect of their terms and
conditions of service as they had become employees of the Company. He
relied on the case of Arif Ali v Government of Pakistan (1994 PLC (C.S.)
178). He also referred to the case of Amin Ahmad v. Government of
Pakistan (PLD 1996 Karachi 27) wherein it was held that after the
completion of process of privatisation by the Government of Pakistan the
employees of the Government became the employees of the Company.
He further submitted that in any case all these employees who were
employed on or after 1-1-1996 were the employees of the limited
company to whom no legal protection was available in respect of the
service conditions. The General Manager, L.T.R. (South) (Muhammad
Aleem) was also called for to provide the details of the employees who
were otherwise appointed/regularised on permanent basis and were
either appointed on daily wages/ad hoc/against leave
vacancy/work-charge or otherwise subsequent to the petitioners with
lesser length of total service. List was also called for of permanent
incumbents who were not at all in service and were outsiders who were
appointed on regular basis during the years, 1995, 1996 and 1997. He
pointed out that in his Region about 481 employees were appointed on
regular basis in two phases during 1995-1996 out of whom 56 were
appointed/regularised as Telephone Operators. He admitted that most of
such employees were initially appointed on work-charge/daily wages/ad
hoc subsequent to the petitioners and a number of other employees with
more length of service without having regard to their dates of
appointments. He also admitted that a number of employees have been

1904
appointed during the years 1995, 1996 and 1997 from outside and that
the petitioners and similarly other employees continuing as workers since
1990 on daily wages/work-charge/ad hoc or against the leave vacancies
in various capacities were not considered for regularisation on
permanent basis against the permanent vacancies. He frankly conceded
that a number of other persons on daily wages/work-charge, etc. junior
to the petitioners and other employees were regularised on permanent
basis or even the persons who were not in service were appointed on
permanent basis on the directions of the Prime Minister's Secretariat
during the years 1995-1996. Mr.Attiq-ur-Rehman, Director (Rules,
Regulations and Recruitment) Headquarter, P.T.C., Islamabad, appeared
in Court and stated that about 3,500 appointments were made on
permanent basis in Punjab under the centralised scheme of recruitment
under the directions of the Prime Minister's Secretariat. Such
appointments were made of persons who were in service but without
having any regard to their dates of appointments on daily wages or
work-charged, etc., in various capacities such as Telephone Operators,
Lineman, Assistant Lineman, etc. He also stated that appointments of
8,500 persons were made for Pakistan in two phases during 1995-96. He
further disclosed that amongst these appointments 15 per cent were the
appointments which were recommended by the C.B.A. Union of the
P.T.C. irrespective of the seniority or original appointment position of the
employees/workers. Even the persons who were previously not in service
were also appointed. It was further pointed out that a number of
employees who were employed with or without artificial breaks for so
many years have been terminated or likely to be terminated shortly.

4. I have heard the learned counsel for the parties at length. It is a

shocking state of affairs to know that a large number of persons were
appointed in the Pakistan Telecommunication Corporation/National
Telecommunication Company Limited under the orders of the Prime
Minister's Secretariat in various capacities such as Telephone Operators,
Linemen, Assistant Linemen, etc. without considering the claim of the
sitting employees with much more length of service for regularisation or
permanent appointment. It was arbitrary and discriminatory on the part
of the respondents to have ignored to petitioners and other similarly
placed employees from being considered for appointment on regular
basis. The principle of first come first served or first come last go was to
be applied in such like cases. The petitioners and other such employees
who have rendered valuable service to the respondents could not be

1905
thrown out merely for the consideration that some other persons
yielding influence on the political side had managed to get themselves
appointed/regularised on permanent basis although they were either
junior to the petitioners and other employees or they were not in service
at all. The fundamental rights of the petitioners and other similarly placed
employees guaranteed under Articles 2A, 25 and 27 of the Constitution of
Pakistan were grossly violated by the respondents.

5. The question of regularisation in service is required to be

examined keeping in mind the historical as well as the Constitutional
perspective during the pre-partition colonial rule, the growth in the
country was trading and most of the large size industries were controlled
by the British interest. The relationship between the employer and the
employee was governed by the rule of hire and fire. Those were the days
of laissez fair when the contractual rights were placed above the human
rights. The concepts of dignity of labour and just remuneration for work
for workers were wholly alien. The workers were forced to work in
appalling conditions at low wages without any job security. But " under
our Constitution which specifically provides for enforcement of Islamic
values and Islam being the State religion guarantees the social, economic,
justice and fundamental freedoms and rights to the citizens. The
employer is not allowed to dictate his terms of appointment taking
advantage of the absence of the bargaining power in the employees and
to force an employee to accept employment on take it or leave it terms
offered by the employer. The human dignity and better conditions of E
work with proper remuneration has also been secured by Articles 3 and
14 of the Constitution. The power of regularisation or otherwise has to be
free from arbitrariness. It is too late in the day to take a position that a
Company which is created by a Statute in contradistinction of a Company
created under a Statute is not subject to the jurisdiction of the High Court
under Article 199 of the Constitution. It is now well-settled that a
Government Company created by the provisions of the Statute itself is
amenable to the jurisdiction of the High Court. See the cases of
Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lah. 840;
Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417;
Syed Mumtaz Shah v. Chairman, N.P.T. 1994 PLC (C. S.) 810. In the case of
State of Haryana v. Payara Singh 1992 (4) SCC (118), it was held that in
the case of long continuance in service of work-charge/casual/daily
wages workers, the presumption for regular need of service would arise
obliging the authority concerned to consider with a positive mind the

1906
feasibility of regularisation. The petitioners and other employees who
had rendered service with or without artificial breaks before 1-1-1996 on
daily-basis /work- charge/casual or leave vacancy, etc., are entitled to be
considered for permanent absorption in service. The termination of the
petitioners and such other employees would be/will be invalid.

6. At thin stage, the learned counsel for the respondents has

objected that this Court may not grant any relief sup motu to the persons
who are not the petitioners before this Court. I find that during the
course of these proceedings serious irregularities and violations of the
provisions of the Constitution have been noticed. There was no
justification for the respondents to deprive the employees of their
legitimate rights and expectations in service and to be passed over by
those, employees or outsiders who had either less length of service than
the petitioners o7 were not even in service were regularised under the
directions of the Prime Minister's Secretariat. This is not a case of
exercise of sup moor jurisdiction but the low paid employees have to be
protected for their due rights of service. Even otherwise it is not
conducive to the inexpensive dispensation of justice that each of such
employees should be forced to engage a lawyer to pay his fee and other
expenses for knocking at the doors of the Court when the same relief can
be granted in these proceedings. The objection of the learned counsel is,
therefore, overruled.

7. In this view of the matter, the impugned action if the

respondents against the petitioners is declared to be without lawful
authority and of no legal effect. The similar action on administrative
grounds otherwise than as a penalty against all other
employees/workmen Who save either been terminated from service
recently or in the process of termination is declared to be without lawful
authority and of no legal effect provided they were appointed before
1-1-1996 on daily wages/ad hoc/work-charge, etc., with or without
breaks.

8. The respondents are directed to formulate by 3(h of June, 1997, a

policy for the purpose of consideration for regularizing of service of

1907
employees/workmen under them who were appointed fore 1-1-1996 on
daily wages/ad hoc/leave vacancy, etc. and had rendered Service for 180
days or more with or without artificial break.

9. The writ petition is accepted with no order is to costs.

A.A./M-308/L
Petition accepted.

1908
PLD 1997 Karachi 306

Before Wajihuddin Ahmed, J

AMANULLAH---Petitioner

versus

Mst. HUSNA---Respondent

Constitutional Petition No. 5-1156 of 1994, decided on 22nd January, 1995.

(a) Mohammedan Law

---- Khula' ---Right of Muslim woman to claim Khula' ---Mode of exercising such right ---Khula'
cannot be pronounced unilaterally by wife---Such right could only come about upon intercession
of Qazi, where he had come to conclusion that parties, if made to live as husband and wife, were
not likely to observe limits of Allah.

Mst. Bilqis Fatima v. Najmul-Ikram Qureshi PLD 1959 Lah 566; Mst. Khurshid Bibi v. Babu
Mohammed Amin PLD 1967 SC 97; Rashida Bibi v. Bashir Ahmed PLD 1983 Lah. 549;
Mohammed Abbasi v. Mst. Sarnia Abbasi and others 1992 CLC 1973 and Akhlaq Ahmad's case
PLD 1983 SC 169 ref.

(b) West Pakistan Family Courts Act (XXXV of 19b4)--

----S. 5 & Sched.---Constitutionn of Pakistan (1973), Art.199---Constitutional petition---Quality

of evidence to be produced in support of right of Khula' --Conscience of Court must be satisfied
that if parties were made to live together, they were not likely to observe limits of Allah---For
obtaining relief of Khula' mere word of wife would be sufficient provided that same was firm

1909
and convincing---Testimony of number of witnesses in support of Khula', however. was liable to
be rejected where it was found that it was not an aversion, dislike. car disinclination of woman
herself gut was that of those around her who must have prevailed upon her or otherwise
contrived circumstances so as to make claim of Khula' inescapable---In free Muslim society,
where all human and fundamental rights were discoverable from tenets of Islam, no two persons
would be forced to live together muchless as husband and wife, professing Muslim faith---
Marriage under Muslim Law being contract contracting woman. would teat become subservient
to her husband---Where woman had developed aversion towards her husband and was seeking
Khula', all she had to show to Court was that she and her husband could not live together nor
could they satisfy limits of Allah---Right of Khula', however, was conditioned upon wife
returning property received by her from husband.

Abdul Jabber Soomro for Petitioner.

ORDER

Granted.

2 and 3. The learned Judge of the Family Court, upon a close examination of case-law touching
the concept of Khula' notably, Mst. Bilqis Fatima v. NajmulIkram Qureshi PLD 1959 Lahore
566; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, Rashida Bibi v. Bashir
Ahmed (PLD 1983 Lahore 549) and Muhammad Abbasi v. Mst. Samia Abbasi and others (1992
CLC 1973) has allowed dissolution of marriage to the respondent. The petitioner-husband has
preferred this Constitutional petition.

The learned counsel for the petitioner has urged that the Family Court has not applied mind on
the material issue viz. "Whether parties cannot live together within the limits of Almighty
Allah?" Short answer to that plea is that such issue has been dealt with under the head of Issues
Nos. 4 and 5 because the residuary Issue No. 5 namely. "What should the decree be?" has been
referred to twice in the impugned judgment manifestly showing a typographical error.

On merits it is contended, as said by Malik Muhammad Qayyum, J. in Muhammad Abbasi

v.Mst. Samia Abbasi ibid., that Khula' could not be equated with the right of a husband to
pronounce Talaq. There can be no cavil with the proposition that while Khula' is a right of

1910
Muslim wife it is distinct from the power of Talaq vested by Muslim law in a husband,
subscribing to that faith. Talaq can be pronounced unilaterally, the only constraint, apart from
procedure, being the all pervasive admonition from Allah that Talaq is the most abhorred of all
things made permissible by Him. On the other hand, and in consonance with the precepts of
Muslim Law, Khula' cannot be pronounced unilaterally by a wife but such can only come about
upon the intercession of the Qazi coming to the conclusion that the parties, if made to live as
husband and wife, are not likely to observe the limits of Allah. For this, as pointed out in Re:
Mst. Bilqis Fatima above there is a tradition of the Holy Prophet, where Khula' was ,accorded
upon the expression of firm aversion by a wife to live with her husband. To such purpose, as
affirmed in the case of Mst.-Khurshid Bibi ibid, Islam does not force on spouses a life of
disharmony and unhappiness and, if the parties cannot live together, permits a separation. I am
also in respectful agreement with the dictum of Javed Iqbal, J. (as he then was) in the matter of:
Rashida Bibi where it was observed that if a woman had decided not to live with her husband for
any reason and that decision was firm and final, the Court, after satisfying its conscience that not
to dissolve the marriage would mean forcing the woman to a hateful union, could accord Khula'.
For such purpose it is not necessary for the woman to produce evidence of facts and
circumstances to show the extent to hatred or aversion. None of this runs counter to the
observation of the Supreme Court in Re: Akhlaq Ahmad (PLD 1983 SC 169), that a Judge seized
of a matter touching the claim of Khula' has to take note of and suitably address the question
whether the parties if made to live as husband and wife could not live within the limits of God
and this has to be done also during the course of reconciliation proceedings and the trial and that
being so every factor contributing or detracting from such proposition is to be taken into account.

Thus, no hard and fast rule can be put down as regards the facts and circumstance which must be
shown to exist to obtain the relief of Khula'. All that seems to be required is that conscience of
the Court is saitisfied that if the parties are made to live together they are not likely to observe
the limits of Allah. For obtaining relief mere word of the wife may be sufficient provided that it
is firm and convincing. As against this testimony of a number of witnesses in support to Khula'
may be liable to be discarded if it is found that it is not the aversion, dislike or disinclination of
the woman herself but it is that. of those around her, who may have prevailed upon or otherwise
contrived circumstances so as to make the claim of Khula' inescapable what must, in such cases,
always be seen is that in a free Muslim Society, where all human and fundamental rights are
discoverable from the tenets of Islam, no two persons can be forced to live together, muchless as
husband and wife, professing the Muslim faith. Needless to add that marriage of a woman under
Muslim Law is not the equivalent of bondage. It is a contract and the contracting woman does
not become subservient to her husband. Therefore, she develops aversion towards him and seeks
Khula', all that she has to show to the Court is that she and her' husband cannot live together nor
can they satisfy the limits of Allah. If so, the right to Khula' matures and has to be accorded to
her, determining the marital tie. Such is, however, conditioned upon her making good the
property received by her from the husband.

1911
Keeping in mind all such requirements the learned Presiding Judge has made the following
observations in the impugned judgment:

"Plaintiff has clearly deposed that she hated the defendant and wanted dissolution of her
marriage on the basis of Khula'. The attitude of plaintiff towards the defendant was very much
hostile during the reconciliation proceedings, thus natural hatred was quite evident. The plaintiff
suffered much mental torture and faced agony which had resulted into hatred and evidence
brought on record showed that spouses could not live together within the limits prescribed by
Allah as relations between the spouses were beyond repair and there was no probability of their
living together."

Again:

"In the present case, the spouses were not able to pull on together amicably right from the
beginning. They are separated for last more than 12 years and could not reconcile. This is
indicative of the fact that the rift between them is irremediable these facts lend support to her
claim that she had developed profound hatred against the defendant and probability of their
living together.

"In the present case, the spouses were not able to pull on together amicably right from the
beginning. They are separated for last more than 12 years and could not reconcile. This is
indicative of the fact that the rift between them is irremediable these facts tend support to her
claim that she had developed profound hatred against the defendant and has strengthened the
petitioner's claim of aversion against her husband. Suffice it to say that in the facts and
circumstances of the present case the plaintiff's claim for dissolution of marriage on the ground
of 'Khula' is clearly made out."

In view of the foregoing,, I am satisfied that the impugned judgment was correctly and
fairly handed down and does not merit interference. Matters at Serial Nos. 1 and 2 dismissed.

A.A./A-101/K

Petition dismissed.

1912
1993 C L C 1989 [Karachi]

Before G.H. Malik J

RASHID KHAN and 8 others---Plaintiffs

versus

M. MURTAZA KHAN and 12 others---Defendants

Suit No. 30 of 1986, decided on 31st May, 1993.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

---S. 4---Constitution of Pakistan (1973), Arts. 2A, 199; 203-D & 203-6, 203-F & 203-B (c)---Repugnancy to
Injunctions of Islam---Validity of S.4, Muslim Family Laws Ordinance, 1961 on the touchstone of Art. 2A
of the Constitution---High Court has no power to declare any law invalid on the touchstone of Art. 2A of
the Constitution---Objectives Resolution having become substantive part of the Constitution by insertion
of Art. 2A in the Constitution, it would not have overriding effect vis-a-vis, the remaining provisions of
the Constitution---Effect of Art. 2A of the Constitution---Object of inserting Art. 2A in the Constitution
was that Objectives Resolution should no longer be treated merely as a declaration of intent but should
enjoy the status of a substantive provision an d become equal in weight and status as the other
substantive provisions of the Constitution---Where inconsistency was found to exist between the
provisions of the Constitution and the Objectives Resolution, same should be harmonised by the Courts
in accordance with the established rules of interpretation of Constitutional documents---Courts being
creatures of the Constitution could not annul any existing Constitutional provisions on the plea of
repugnancy with the provisions of Art. 2A of the Constitution---Courts being the creatures of the

1913
Constitution on no principle of law they could be allowed to cut the tree on which they were
perched---Role of Objectives Resolution, notwithstanding the insertion of Art. 2A in the Constitution
(whereby the Objectives Resolution has been made a substantive part thereof) has not fundamentally
transformed from the role envisaged for it at the outset; viz. that it should serve as beacon light for the
Constitution makers and guide them to formulate such provisions for the Constitution which reflect
ideals and the objectives set forth therein---Provisions of Art. 2A of the Constitution were never
intended at any stage to be self-executory or to be adopted as a test of repugnancy or of
contrariety---Courts were not empowered to apply the test of repugnancy by invoking Art. 2A of the
Constitution for striking down any other provision of the Constitution--Provisions of Arts. 203-D & 203-G
of the Constitution vesting exclusive jurisdiction in Federal Shariat Court and the Supreme Court
(Appellate Shariat Bench) prima facie create bar of various types for treating Objectives Resolution as a
self-executory instrument enforceable by the Courts for the change of existing statute law into Islamic
enforceable law, over and above the methods, envisaged in various Constitutional provisions---High
Court, thus, had no jurisdiction to declare any law invalid on the touchstone of Art. 2A of the
Constitution---Provision of S. 4, Muslim Family Laws Ordinance being applicable in matters of
inheritance covered by it would, therefore, govern the rights of the parties in the case.

Mst. Farishta v. The Federation of Pakistan PLD 1980 Pesh. 47; PLD 1981 SC 120; Muhammad Sarwar
and another v. The State PLD 1988 FSC 42; Sardar Ali and others v. Muhammad Ali and others PLD 1988
SC 287; Allah Banda v. Mst. Khurshid Bibi 1990 CLC 1683; Dr. Ashiq Hussain v. Ist Additional District
Judge and Family Appellate Court, Karachi East and 2 others PLD 1991 Kar. 174; Allah Ditta v. The State
PLD 1992 Lah. 45; Mst. Kaniz Fatima v. Wali Muhammad and another PLD 1989 Lah. 490 and Hakim
Khan and 3 others v. Government of Pakistan PLD 1992 SC 595 ref.

Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Government of N.-W.F.P. v. Malik Said Kamal Shah PLD
1986 SC 360; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Reference by the President of
Pakistan under Article 162 of the Constitution of Islaim Republic of Pakistan PLD 1957 SC 219 and
Bindra's Interpretation of Statutes, 7th Edn. rel.

(b) Constitution of Pakistan (1973)---

----Art. 2A---Object and effect of inserting Art.2A in the Constitution---Object of enacting Art.2A as
substantive provision in the Constitution was that Obectives Resolution should no longer be treated

1914
merely a declaration of intent but should have status and weight like other provisions---High Court,
however, has no jurisdiction to declare any law invalid on the touchstone of Art.2A of the Constitution.

Abdul Mujeeb Pirzada for Plaintiffs.

Abdul Majeed Khan for Defendants.

Date of hearing: 26th November, 1992.,

JUDGMENT

The plaintiffs have filed this suit for administration of the estate of the late M. Mustajab Khan. Two sons
of the deceased, namely, M. Mustafa Khan and Rais Ahmed Khan, died during his lifetime and the
plaintiffs Nos. 1 to 4 and the defendant No. 13 are the sons and daughters of the late M. Mustafa Khan
while plaintiffs Nos. 5 to 9 are the son and daughters of the late Rais Ahmed Khan.

The defendants have pleaded in their written statement, inter alias--

"That the plaintiffs and defendant No.13 are sons and daughters of -~'. predeceased sons Mustafa Khan
and Rais Ahmed Khan who died on 14-4-1978 and 15-10-1965 respectively so they are not entitled to
inheritance of the property of grandfather Muhammad Mustajab Khan who died on 7-5-1984. According
to Muslim Law i.e. Shariat, the claim of the plaintiffs is contrary to Injunctions of Islam..."

Issues in the suit were settled on the 28th September, 1986, and the suit came up for hearing of
evidence on the 11th December, 1990, when, at the request of the counsel for the parties, two
preliminary issues were framed and it was ordered that those issues be decided before recording the
evidence. One of those issues was whether the alleged gift of the property by the deceased can be

1915
challenged in the suit for administration. Subsequently, the parties agreed that there was no dispute
about the gift so that the above preliminary issue became redundant. The second preliminary issue
which was framed is:--

"Whether the Muslim Family Laws Ordinance under which the plaintiffs claim their share is contrary to
the Injunction of Islam and, if so, whether this Court can strike it down?

Mr. Abdul Majeed Khan submitted, firstly, that section 4 of the

Muslim Family Laws Ordinance, 1961, which provides as follows:--

In the event of the death of any son or daughter of the propositus before the opening of succession, the
children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive
a share equivalent to the share which such son or daughter, as the case may be, would have received if
alive."

is repugnant to the injunctions of Islam as held in the case of Mst. Farishta v. The Federation of Pakistan
(PLD 1980 Peshawar 47). The petitioner in that case had filed the petition under Article 203-B of the
Constitution for a declaration that section 4 of the Muslim Family Laws Ordinance was repugnant to the
Injunctions of Islam and a Shariat Bench of the Peshawar High Court held that section 4 of the Ordinance
was so repugnant. The objection that the High Court had no jurisdiction to decide the question in view
of the Explanation to Article 203-B of the Constitution providing that the word "Law" in Chapter 3-A of
the Constitution does not include Muslim Personal Law was overruled with the dictum that all that the
expression "Muslim Personal Law" conveys is the law as known to Shariah and not legislative
enactments which overrule that law. The decision of Peshawar High Court was, however, overruled by
the Supreme Court in PLD 1981 SC 120 where it was held that the expression "Muslim Personal Law"
means, in this special context, such codified or legislated law which is being applied to Muslim Residents
of Pakistan as or with the denomination "Muslim" which governs their person as such and as distinct
from the general law of the land which applies to everybody; and that, therefore, scrutiny of section 4 of
the Ordinance was outside the jurisdiction of the High Court. No opinion on the merits of the case was
expressed by the Supreme Court. It may here-be observed that Mr. Abdul Majid Khan did not advance
any argument in support of his above contention beyond citing the judgment of Peshawar High Court.
He, however, went on to argue, on the assumption that section 4 of the Ordinance is repugnant to

1916
Injunctions of Islam, that in view of Article 2-A of the Constitution, this Court must ignore that section
and hold that that the grand child, en of the deceased Mustajab Khan are not entitled to inherit any
share in his estate. He relied on the following cases:--

(i) Muhammad Sarvvar and another v. The State PLD 1988 FSC 42.

(ii) Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287.

(iii) Allah Banda v. Mst. Khurshid Bibi 1990 CLC 1683.

(iv) Dr. Ashiq Hussain v. Ist Additional District Judge and Family Appellate Court, Karachi East and 2
others PLD 1991 Karachi 174.

(v) Allah Ditta v. The State PLD 1992 Lahore 45.

Mr. Abdul Mujeeb Pirzada, on the other hand, submitted that the Shariat Petition filed by the
defendants challenging section 4 of the Ordinance and the right of the plaintiffs and the defendant
No.13 to inherit shares in the estate of the late Mustajab Khan was dismissed by the Federal Shariat
Court on the ground that the matter raised therein did not fall within the jurisdiction of that Court. He
has produced copies of the petition and the order which are on record. Mr. Pirzada Nubmitted further
that notwithstanding Article 2A of the Constitution, the Courts have to follow the "existing law" Article
268(7) of the Constitution and that Article 2A directed to the Legislature rather than to the Courts. He
relied on Mst. Kanrz Fatima v. Wali Muhammad and another (PLD 1989 Lahore 490) Khan and 3 others v.
Government of Pakistan (PLD 1992"SC 595).

In view of the recent pronouncements on the subject of the amplitude of Article 2-A of the Constitution
by the Supreme Court of Pakistan, it is not necessary to discuss all the cases cited by the counsel.

1917
The case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) the question involved related to the effect of
the judgment of the Supreme Court in its Shariat Appellate Bench in the case of Government of
N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) whereby certain provisions N.-W.F.P. and Punjab
Pre-emption Acts and MLR 115 regarding the right pre-emption were declared as repugnant to
Injunctions of Islam and which was to take effect on the 31st July, 1986. It was contended inter alia, that
the Objectives Resolution having become substantive part of the Constitution, the provisions of
pre-emption laws which were held to contrary to injunctions of Islam in Said Kamal's case have to be
ignored, notwithstanding the other provisions of the Constitution, and Article 2A would have to be
implemented as "self-executory" Constitutional instrument. Muhammad Afzal Zullah, J. (as he then
was), observed (at page 330):--,

"It has to be mentioned here that arguments on Article 2A of the. Constitution having been addressed
during the oral hearing, it was pointed out to all the learned counsel that the Constitution had provided
the mechanism and methodology of Islamisation of the existing laws in various provisions thereof. For
example Part III, Chapter 3-A (Federal Shariat Court and Shariat Appellate Bench of Supreme Court of
Pakistan and the Legislature); Part IX (Council of Islamic Ideology and the Legislature); Part II Chapter 2
(Implementation of the Basic Principles relating to Islamisation by the Executive and Legislative Organs
of the State). They were asked to reconcile the specific provisions which barred the jurisdiction of the
Courts regarding the process of Islamisation with their plea for direct application (by the Courts) of the
Islamic law in preference to Statute Law. The specific provisions which created difficulty in this behalf
were also pointed out to them."

His Lordship then went on to observe:-- `

"It has to be noted that no serious attempt has been made by any of the learned counsel to face the
difficulty presented by the afore-quoted provisions, of the Constitution in the acceptance of their
contention regarding the direct operation of the Resolution, so as to annul the enacted provisions of
statute law. While making this remark we should not be understood to have minimised its Constitutional
position by virtue of Article 2A or even without its becoming a formal part of the Constitution. What is
being emphasised is that no argument suggesting a reasonable and acceptable reconciliation of the
aforestated barring provisions has been advanced. They prima facie create bar of various types for
treating the 1949 Resolution as a self executory instrument enforceable by the Courts, for the change of
the existing statute law into Islamic enforceable law, over and above the methods envisaged in various
Constitutional provisions, Article 30(2); 203-G; and 227(2); it cannot be ignored, do at least prima facie
create '` direct bar of the type aforementioned regarding Islamisation of Laws and the Constitution; as
distinguished from their interpretation and enforcement even in the existing form, with the help of

1918
Islamic principles. Moreover, a question of great Constitutional importance arises with regard to the
conferment of the special jurisdiction on the two forums created under Chapter 3-A in this behalf---the
Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It may be argued that an
indirect bar is also contained in Article 203-A. It gave an overriding effect, vis-a-vis the remaining
Constitution, to the Islamisation process envisaged in Chapter 3-A. An VU important question, for
example, would arise whether, the fields kept '~"r out of jurisdiction of the Federal Shariat Court and the
Supreme Court in their Islamisation jurisdiction under Articles 203-D and 203-F by virtue of the
definition of law in Article 203-B (c), were intended to be included in the jurisdiction of all the
Courts--say, civil judges and the other forums including revenue, under MLR-115. And that too when the
former's jurisdiction is exclusive under Article 203-G. It will have to be determined as to whether in the
matter of Islamisation, when keeping the excluded laws out of the jurisdiction of the forums created in
this behalf, by the Constitution itself under Chapter 3-A, the same object was intended to be achieved
through other Courts, tribunals or functionaries. In this respect no attempt has been made even to
visualise any answers to these questions nor any reason for bypassing the specific afore quoted barring
provisions and Chapter 3-A (as interpreted earlier), except for the claim that the Resolution would
override the same. These questions need to be answered notwithstanding the fact that the superior
Courts in Pakistan have since long applied the Muslim Law and principles m field of interpretation as
distinguished from the change of statue law on that basis."

"38. The generalisation in some of the submissions that all these provisions are to be read with the
Resolution, has no proved to be of much help. The Courts are required to act in accord with the
constitution and cannot ignore altogether the limitations mentioned above. They have to be reconciled.
An attempt has been made in some recent judgments by the Sindh High Court to rely on Article 268 of
the Constitution for the proposition that the Resolution having become a part of the Constitution,
`adaptations' can be made under clause (6) thereof by the Courts, `as are necessary to bring them in
accord with the provisions of the Constitution'. It is remarked that, prima facie this power existed for the
transitional period, only for `adaptation' by not only the Courts but also by all `Tribunals' and
`authorities', concerned with the enforcement of the laws. Such an interpretation of Article 268(6)
cannot be upheld without a fuller examination and proper assistance. Moreover, this or similar other
exercise has, for the same reasons, to be deferred till that type of cases come before the Court."

In the case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) the question for consideration
was whether Article 2A resulted in denuding the President of the power of commuting the sentence of
death conferred on him by Article 45 of the Constitution. Nasim Hasan Shah, J. (as he then was) analysed
the history of the Objectives Resolution and the relevant judgments and observed:--

1919
"Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that
it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent
and meaning of any particular provision. And where any apparent repugnancy appears to exist between
its different provisions; the Court should harmonise them, if possible (See Reference by the President of
Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 219 at p.
235).

This rule of interpretation does not appear to have been given effect to in the judgment of the High
Court on its view that Article 2-A is a supra-Constitutional provision. Because, if this be its true status
then the abovequoted clause would require the framing of an entirely new Constitution. And even if
Article 2-A really meant that after its introduction it is to become in control of the other provisions of
the Constitution, then most of the Articles of the existing Constitution will become questionable on the
ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the
opening clause of this Resolution the authority which Almighty Allah has delegated to the State of
Pakistan is to be exercised through its people only "within the limits prescribed by Him". Thus all the
provisions of the existing Constitution will be challengeable before Courts of law on the ground that
these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law
regarding political parties, mode of election, the entire structure of Government as embodied in the
Constitution, the powers and privileges of the President and other functionaries of the Government will
be open to question. Indeed, ,the very basis on which the Constitution is founded namely the
trichotomy of powers i.e. that the three great organs of the State have their own particular spheres of
authority wherein they exercise their respective powers or the system of checks and balances could be
challenged, alongwith all the ancillary provisions embodied in the 1973 Constitution in relation thereto.
Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of Article 2A,
namely that it is in control of all the other provisions of the Constitution would result in undermining it
and pave the way. for its eventual destruction or at least its continuance in its present form. This
presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2A in the
Constitution under the Revival of the Constitution Order, 1985 (President's Order No.14/1985). It
certainly was not the intention of the law-makers who enacted Article 270-A (vide section 19 of the
Constitution (Eighth Amendment) Act, 1985) which provision affirmed and adopted, inter alia, P.O.
14/1985 (whereby article 2A was inserted in the Constitution). Their intention simply was that the
Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the
status of a substantive provision and become equal in weight and status as the other substantive
provisions of the Constitution. In case any inconsistency was found to exist between the provisions of
the 1973Constitution and those of the Objectives Resolution, it would, they expected, be harmonised by
the Courts in accordance with the well established rules of interpretation of the Constitutional
documents already mentioned. Being creatures of the Constitution it was not visualised that they could
annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article
2A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice
(Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject

1920
of "the Shariat Bill and its implications" PLD 1986 Journal 327, "The Courts are the creation of the
Constitution and on no principle of law can they be allowed to cut the tree on which they are perched."

His Lordship then went on to observe and to hold as follows:--

"In this connection, the submissions made before us by Dr. Abdul Basit (learned counsel for respondents
Nos.10 and 11 in Civil Appeal No.39 of 1992) are very pertinent. According to him the concept of Divine
Sovereignty enunciated in the Objectives Resolution namely that all sovereignty vests in Allah Almighty
which has been delegated to the State of Pakistan through its people to be exercised through his
chosen representatives shows that idea of State, in the Objectives Resolution, has been linked with that
of people and this, in turn is linked with that of "Chosen Representatives". Thus, the only authentic
expression of the Delegated Sovereignty is expressed through the chosen representatives of the People
of Pakistan. The result in the ultimate analysis is that the Legislative Body, becomes the exclusive
repository of the delegated Divine Sovereignty in Pakistan, since this is the body which has been elected
on the basis of adult franchise and consists of the chosen representatives of the people.

Thus, in the above concept (in relation to the exercise of sovereignty in the State of Pakistan) the
people's representatives having been made the repository of the Divine Sovereignty the Courts do not
have the jurisdiction to declare any law invalid on the ground of it not being within the "limits prescribed
by Allah Almighty".

The submission of Dr. Basit is that while the Superior Courts undoubtedly will continue to exercise the
power and have the jurisdiction to declare laws void on the basis of the other criterion as provided for in
the Constitution, but the particular criterion contained in Article 2A of ensuring that no man-made law
transgresses the limits prescribed by Allah and is invalid if it does so, is not within the scope of judicial
review. In other words, if an Article of the Constitution or any existing statutory provision is alleged to
fall outside the limits prescribed by Allah and needs to be invalidated on that score, such a plea would
furnish a ground for legislative but not judicial review, because the limits to be observed in this regard
have been addressed to the chosen representatives of the people and not to the Courts. Hence they
furnish grounds for legislative and not judicial review. However, the Courts shall retain full powers to
identify and apply the proper law to concrete facts situations which are brought before them for
adjudication.

1921
This submission undoubtedly has force:'

and

"The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of
Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part
thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely
that it should serve as beacon light for- the Constitution-makers and guide them to formulate such
provisions for the Constitution which reflect ideals and the objectives set forth therein."

Shafiur Rahman, J. agreed with the conclusion arrived at by Nasim Hasan Shah, J. (as he then was) and
observed:

"Through an individualised dispensation (P.O. No.14 of 1985) which of course received subsequently the
approval of the Parliament, among others, two important amendments in the Constitution of 1973
(relevant to the present discussion) were made. One such amendment (Article 2A) at first sight appears
to 'be formal, not very consequential, declaratory in nature, inoperative by itself. But in our milieu it has
given rise to a controversy and a debate which has had no parallel; shaken the very Constitutional
foundations of the country, made the express mandatory words of the Constitutional instrument yield
to nebulous, undefined, controversial juristic concepts of Islamic Fiqh. It has enthused individuals,
groups and institutions to ignore, subordinate and even strike down at their will the various Articles of
the Constitution by a test of what they consider the supreme Divine Law, whose supremacy has been
recognized by the Constitution itself. What does the Objectives Resolution contain? It has three
separate distinct components. The first is purely structural feature of it that the sovereignty of Almighty
descending on the people of Pakistan constituting State of Pakistan is to be exercised through their
chosen representatives. So the people operating through their chosen representatives and the Almighty
Allah at the Appex exhaust the pristine, devolution, distribution and sharing of Divine Sovereignty: The
individuals, the authorities, the institutions, the Courts, do not figure in this structure. They make their
appearance on terms, with limitation as a result of further delegation of authority expressly made or
impliedly conferred.

1922
The second is its qualitative feature. The sovereignty shared or enjoyed is delegated, capable of further
delegation, is by its very nature a sacred trust and has to be exercised within the limits prescribed by the
Almighty Allah.

The third is its normative feature. The norms, the goals, the ideals, mostly mundane in nature are spelt
out with particularity which have to be achieved through the Constituent Assembly and by the process
of framing a Constitution.

11. Nowhere in the Objectives Resolution, either expressly or impliedly do I rind either a test of
repugnancy or of contrariety, nor empowering of an individual or of an institution or authority or even a
Court to invoke, apply and declare Divine limits, and go on striking everything that comes in conflict with
it by reference to Article 2A. Such an interpretation of Article 2A of the Constitution and appropriation
of authority so to do amounts to usurpation. It would indeed be so when the amplitude of power
reserved for the Parliament in the same Constitutional instrument is kept in view.

12. Apart from these broad features noted by me, there- are settled, classic, accepted principles of
interpretation of Constitutional provisions. They should not be lost sight of, ignored or violated in our
euphoria for instant Islamization of Constitution, Government and society."

His Lordship then noted the numerous cases in which Article 2A of the Constitution was considered by
the superior Courts of this country and referred to Bindra's Interpretation of Statutes, 7th Edition; and
held: .

"The ascertainment of the absolute principles of Islamic Law with regard to political power, its
distribution and delegation and financial institutions is itself a matter requiring detailed study, thorough
research and meaningful debate before acquiring concrete shape so as to be adopted as a test of
repugnancy of the Constitutional provisions. It cannot summarily be done. Such an exercise can more
appropriately be undertaken under the control and supervision of the legislature and the expert bodies
like the Islamic Ideology Council and Islamic Research Institute. The provisions of Article 2A were never
intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety. It
was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the
Constitution for striking down any other provision of the Constitution (Article 45):"

1923
1n view of the dicta of their Lordships of the Supreme Court in Sardar Ali's case and Hakim Khan's case,
it is clear that this Court has no power to declare any law invalid on the touchstone of Article 2-A of
Constitution. Section 4 of the Muslim Family Laws Ordinance will, therefore, govern the rights of the
parties in this case. The preliminary issue set out above is decided accordingly.

AA./R-246/K Order accordingly.

1924
1991 M L D 250 [Lahore]

Before Fazal Karim and Mian Allah Nawaz, JJ

Mst. ARJUMAND BANO--Appellant

versus

Ch. ALI MUHAMMAD--Respondent

Regular First Appeal No. 58 of 1989, heard on 30th October, 1990.

(a) Partition Act (IV of 1893)---

----S.4---Expression "undivided family"---Meanings---Application of S.4---Test for application

of S. 4 was not that the house in question should be an undivided dwelling house but was that it
must belong to an undivided family and the person who undertook to purchase the share of the
transferee must be a member of that undivided family.--[Words and phrases].

It is necessary for the application of section 4 of the Partition Act, 1893 that the dwelling house
in question is joint and undivided, for if a dwelling house has been divided among its co-sharers
and each co-sharer is in possession of his divided share, then no occasion for its partition would
arise. In other words, it is necessarily implied by reason of the subject-matter of the Partition Act
in general and section 4 in particular that that section applies only to an undivided dwelling
house. This highlights the importance of the expression "undivided family". The expression
"undivided family" does not mean undivided qua the dwelling house in question and it is
sufficient for the application of section 4 that the family owns the house jointly and has not
divided it. This view of section 4 fails to give any meaning to the expression "undivided family".
Therefore, the test is not that the house in question is an undivided dwelling house; the test must
be that the house belongs to an undivided family. It is also apparent from the plain words of

1925
section 4 that not only should the dwelling house belong to an undivided family, but also the
person who undertakes to purchase the share of the transferee must be a member of that
undivided family.

Sundari Bewa v. Ranka Behara and others AIR 1968 Orissa 134; Sultan Begum v. Debi Prasad
(1908) 30 All. 324; Sivaram Ayya v. Venkata Subbamma and others AIR 1930 Mad. 561; Nil
Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 IC 67; J.C. Chitterji and others v. Maung
Mye and another AIR 1940 Rang. 53; Muhammad Habibullah and another v. Maulvi Saleh
Ahmed Chowdhury PLD 1968 Dacca 12; Md. Mogdu Bhuiya alias Magdu Bhuiya v. Jabban
Huq and others 11 PLR 355 and Abinash Chandra Chakarvarty v. Sm. Kamal Devi AIR 1953
Pat. 344 ref.

(b) Partition Act (IV of 1893)---

----S.4---Word "family" and expression "undivided family'---Connotation: -[Words and phrases].

There are many general words in common usage in the law which have no precise or constant
meaning but few have been used with so many shades of meaning in different contexts or have
so freely acquired new meanings with, the development of the law as the word `family'. It is a
popular and not a technical expression and indeed much turns upon the context in which it has
been used. This is so because the family is a social unit and its meaning has changed from age to
age and society to society. In its broad general sense, the ward `family' means a group of persons
consisting of parents and children; a collective body of persons who live in one house and under
one head or management.

Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 IC 67 and Black's Law Dictionary,
Fifth Edn. ref.

(c) Hindu Law---

---- Joint family, connotation of---Classes of division of property under Hindu law enumerated.--
[Words and phrases].

1926
The concept of a, joint family is very well known to the Hindu law. The joint and undivided
family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint
not only in estate but also in food and worship. The existence of joint estate is not an essential
requisite to constitute a joint family and a family which does not own any property may
nevertheless be joint. Further, the conception of a joint Hindu family constituting a coparcenary
is that of a common male ancestor with his lineal descendants in the male line within four
degrees counting from and inclusive of such ancestor. No coparcenary can commence without a
common male ancestor, though after his death it may consist of collaterals, such as brothers,
uncles and nephews, cousins etc. and the essence of a coparcenary under the Mitakshara law is
unity of ownership. The ownership of the coparcenary property is in the whole body of
coparceners. According to the true notion of an undivided family governed by the Mitakshara
Law, no individual member of that family, whilst it remains undivided, can predicate, of the joint
and undivided property, that he, that particular member, has a definite share, one-third or one-
fourth. No family can b6 a coparcenary under that law. In fact, the property, according to the
Hindu law, is divided into two classes, namely, (1) joint family property, and (2) separate
property and a joint family or coparcenary property is that in which every coparcener has a joint
interest and a joint possession. The principal incidents of joint family or coparcenary property
are that (a) it devolves by survivorship, not by succession and (b) it is property in which the male
issue of the coparceners acquires an interest by birth.

Mulla's Principles of Hindu Law, Tenth Edn., Chap. 12, paras. 212, 213, 214, 216, 217, 220 &
221 ref:

(d) Hindu Law---

----Joint family ---Female's right on property under Hindu Law stated.

The position of a female in Hindu law is that of perpetual tutelage. There are different sorts of
stridhan properties in Hindu law; broadly speaking, one over which a female has absolute right
of ownership and which she can use, give, or sell quite independently of her husband's control,
the other over which her powers arc subject to her husband's consent.

(e) Islamic Jurisprudence---

1927
---- Islam does not allow the conception of a family life to overshadow its fundamental principle,
namely, individual responsibility and liberty---Each member. of the family is endowed with full
legal capacity and law does not sanction. any joint family. system of holding property as
prevalent among Hindus---Whatever authority the law vests in the head of the family is based
either on contract or on necessity for the protection of those members of the family who are
unable to take care of themselves---Muslim's estate legally and judicially vests immediately on
his death in his or her heirs and their rights respectively conic into separate existence forthwith.

Principles of Muhammadan Jurisprudence by Sir Abdur Rahim p. 326 and Ghulam Ali and 2
others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC i ref.

(f) Partition Act (IV of 1893)---

----S.4---Where parties are Muslims, expression "undivided family" in- S. 4 has to be understood
in the context of an Islamic Society and if need be, re-interpreted accordingly---Concept of
"undivided family" as understood in Hindu Law, would have no relevance in an Islamic Society.

(g) Partition Act (IV of 1893)---

----S.4---Undivided family---Meaning---Where group of persons, though descended from the

same ancestor and related in blood, were living in the same dwelling house as independent
families; they were separate establishments; they had separate living and cooking facilities and
did in fact live separate and apart-Such families, held, would not, be within the expression
"undivided families".-[Words and phrases].

(h) Partition Act (IV of 1893)---

----S.4---Family dwelling house---Record showed that house in suit devolved upon the two
sisters many years ago, they were married and with their marriage each sister became a member

1928
of the family of her husband---Whatever status said sisters before marriage had, they, held,
ceased after their marriage, to be the members of the same family.

(i) Partition Act (IV of 1893)---

----S.4---Family dewelling house---Where co-sharer of the house had rented out the portion of
the house, such house could not be regarded to be a family dwelling house and person occupying
the portion did not occupy said property. as a member of the family.

Ch. Mohammad Yasin for Appellant.

Abdul Hayee Mansoor for Respondent.

Dates of hearing: 28th and 30th October, 1990.

JUDGMENT

FAZAL KARIM, J.---The facts giving rise to this regular first appeal by the defendant, Mst.
Arjumand Bano, shortly stated, are as follows:--

2. The house in suit, namely, house No. SI-105-S-6, a double storeyed building, is situate in Shah
Abul Muali, Lahore; it was owned by the two sisters, namely, Mst. Arjumand Bano, defendant,
and Mst. Balqis Jchan Begum in equal shares. Mst. Balqis Jehan Begum transferred her share by
means of a deed of sale dated 16-6-1982 to the plaintiff, Ch. Ali Muhammad. The latter brought
this suit for the partition of the house in June, 1934. A preliminary decree for partition was
passed in his favour on 19-7-1987. The defendant preferred no appeal against that decree. The
learned Civil Judge then appointed a Local Commissioner to suggest the mode of partition and to
determine the valuation of the house. By his report dated 10-12-1937, the Local Commissioner
reported that the house was partitionable and this fact is no more in dispute. However, both the
parties felt aggrieved by the mode of partition suggested by the Local Commissioner. As it is the

1929
defendant who has come in appeal against the judgment of the learned Civil Judge dated 30-1-
1989, it is not necessary to notice the plaintiffs objections. The defendant's objections were that
the Local Commissioner had not prepared the building plan himself and had engaged a
Draftsman for the purpose; that the Local Commissioner had not taken into consideration the
market rate of the property, namely, Rs. 30/35,000 per marla on the front and Rs. 20/25,000 at
the back. In determining the value of the property, the Local Commissioner had taken into
consideration the valuation notified by the Government for the purposes the Registration Act and
the objection of the defendant was that the valuation so notified was not conclusive. It was also
said that the plaintiff had a wider approach, the passage serving him being as wide as `17-1/2' to
9' and the passage serving the defendant being 3'-10" and 3'-6" only. According to the defendant,
the Local Commissioner was wrong in treating the entire building and plot at a par value and
should have assessed the area in the front differently from the one situate at the back.

3. The learned Civil Judge dealt with the parties' objections as follows:--

"The perusal of record of local commission shows that he has drawn the line of partition in such-
a way that each party will get the area under the house in equal share. In my opinion, it is not in
the interest of justice that the land of the house be divided equally without giving considerations
to other factors namely the better location, covered area and the better construction. The local
commissioner has held that the portion in possession of the defendant is better constructed and
located than the plaintiff. The perusal of plan attached with the report of local commissioner
shows that he has. shown partition wall in the suit property as A to B. thus partitioning two small
rooms whereas the site plan produced by the plaintiff alongwith its objection petition shows that
partition-wall as "A to A" will be more suitable than the partition wall as "A to B" shown by the
local commissioner. In this way, the defendant will get more covered area and better constructed
portion and the plaintiff will be compensated by giving a little bit more land. This will also avoid
the partition of small rooms. It is note-worthy that parties to the suit have not-objected to the
partition of sewerage, water pipe and Sui gas pipe. According to my above discussion, the report
of local commissioner is amended to the extent of demarcation of partition wall showing as "A to
A" instead of A to B" in. the site plan. The portion in green colour will fall in share of. the
plaintiff, whereas portion shown in the yellow colour will fall in defendant's share. According to
the report of local commissioner. the total value of the suit property is Rs. 4,10,000. Local
Commissioner has valued the property according to the rates as notified by the Board of Revenue
for the purposes of registration of sale deeds. So in my opinion Local Commissioner has properly
valued the suit property and the value of the respective shares of each party comes Rs. 2,05,000".

4. Learned counsel for the appellant pressed only two grounds before us;

1930
(i) that the Local Commissioner should not have delegated the function of preparing the site-plan
to the Draftsman and (ii) that the portion given to the plaintiff was more valuable because it had
the advantage of a wider passage. Learned counsel for the plaintiff supported the conclusion
come to by the learned trial Judge; according to him, the learned trial Judge had not acted upon
the Local Commissioner's report i its entirety and had divided the house in a just and equitable
manner.

5. Having heard the parties' counsel, and perused the Local Commissioner's report and the
parties' objections, we find no merit whatever in the contentions raised by the appellant's
counsel. It will have been noticed that the mode suggested by the Local Commissioner would
have produced the result of partitioning two small rooms; to avoid this result, the learned trial
Judge thought and-in our view, for good reasons, that the line of partition should be AA and not
A-B. That in this way; the defendant got more covered area and better constructed portion is not
denied. Accordingly, to compensate the plaintiff, he was given "a little bit more land." It is,
therefore, wrong to say that the learned trial Judge had not taken into consideration the situation
of the portions allotted to the parties. Nor do we think that in engaging an expert to prepare the
building plan, the Local Commissioner committed any irregularity. By so doing, he did not
delegate his functions as Local Commissioner to the Draftsman; all that he did was to use the
services of an expert for the purpose.

6. Alongwith her appeal, the appellant has made an application under section 4 of the Partition
Act, 189.3; it is stated that the house in suit is a dwelling house originally belonging to an
undivided family, 1/2 share whereof has been transferred by one co-sharer to the respondent who
is a stranger; that the plaintiff, respondent herein, "is not a member of the undivided family
owning the house in question'". It is therefore, prayed that "this honourable Court may kindly be
pleased to evaluate 1/2 share of the respondent/decree holder and grant permission to the
petitioner to make payment thereof to the respondent/decree holder".

7. Section 4 of the Partition Act runs as under:--

"(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to
a person who is not a member of such family and such transferee sues for partition, the Court
shall, if any-member of the family being 'a shareholder shall undertake to buy the share of such
transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of
such share to such shareholder, and may give all necessary and proper directions in that behalf.

1931
(2) If in any case described in subsection (1) two or more members of the family being such
share-holders severally undertake to buy such share, the Court shall follow the procedure
prescribed by subsection (2) of the last foregoing section'.

8. Learned counsel for the appellant contended that the right conferred by section 4 of the
Partition Act can be exercised by a member of an undivided family at any stage of the suit; that
the section applies to an undivided family whether the family be a Muslim or a Hindu family and
that as the house in suit belonged to the two sisters, it was at the date of the sale in favour of the
plaintiff, a dwelling house belonging to an undivided family and, therefore, the appellant is
within her right to invoke the provisions of the section to her aid. Learned counsel for the
respondent on the other hand maintained that the question whether the house in suit was a
dwelling house belonging to an undivided family involves a question of fact, namely, that it was
a dwelling house and that it belonged to an undivided family and this is not the stage to allow
this question of fact to be raised and decided. According to him, it is in the evidence of
Muhammad Amjad, a. son and attorney of the appellant, that as many as six rooms of the house
in suit had been let to tenants by Mst. Arjumand Bano; and long before the sale in favour of the
respondent by Mst. Balqis Jehan Begum, the tatter's share had been in occupation .of the
plaintiff, respondent herein, as a tenant and that it cannot, therefore, be said that the house in suit
was a family dwelling house.

9. We were helpfully referred to a number of precedent cases of the pre-Partition India; some of
the cases decided by the Indian Courts after the Partition of the Sub-Continent were also referred
to. In Sundari Bewa v. Ranka Bchara and others AIR 1968 Orissa 134, reference was made to the
statement of objects and reasons which is as follows:-- .

"It is proposed in the Bill to give the Court the power of compelling a stranger who has acquired
by purchase a share in a family dwelling house when he seeks for a partition to sell his share to
the members of the family who are the owners of the rest of the house at a valuation to be
determined by the Court. This provision is only an extension of the privilege given to such share
holders by Section 44, para 2 of the Transfer of Property Act, and is an application of the well
known rule which obtains among Mohemedans everywhere and customs also among Hindus in
some parts of the country". .

On the meaning of the expression "undivided family" in section 4 perhaps the leading authority
is the Full Bench case of the Allahabad High Court Sultan Begum v. Debi Prasad (1908) 30 All.
324. In that case, it was contended on the one hand that the expression means a joint family and
was conned to Hindus or to Muslims who had adopted the Hindu rule as to joint family property.
On the other hand, the contention was that the expression was of general application and meant a

1932
family, whether Hindu, Muslim or Christian, possessed of a dwelling house which had not been
divided or partitioned among the members of the family. It was held that the purpose of section 4
was to prevent a transferee of a member of a family who is an outsider from forcing his way into
a dwelling house in which other members of his transferrer's family have a right to live and that
the expression undivided family means "undivided qua the dwelling house in question and to be
a family which owns the house but has not divided it". This case was followed. in Sivaram Ayya
v. Venkata Subbamma and others AIR 1930 Mad. 561. In this connection, reference may also
profitably be made to Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 I.C. 67 where
Mukerji, J reviewed almost all the available case law on the subject and observed:

"These decisions lay down that the word `family' as used in the section ought to be given a
liberal and comprehensive meaning and it includes a group of persons related in blood, who live
in one house under one head or management; that it is not restricted to a body of persons who
can trace their descent from a common ancestor; that it is not necessary for the members to
constitute an undivided family that they should constantly reside in the dwelling house, nor is it
necessary that they should be joint in mess; that it is sufficient if the members of the family are
undivided qua the dwelling house which they own; that it is the ownership of the dwelling house
and not its actual occupation which brings the operation of the section into play; and that the
object of the section is to prevent a transferee of a member of a family who is an outsider from
forcing his way into a dwelling house in which other members of his transferor's family have a
right to live".

The observations were adopted and followed in J. C. Chitterji and others v. Maung Mye and
another AIR 1940 Rangoon 53.

10. In this connection, learned counsel for the appellant also referred to Muhammad Habibullah
and another v. Maulvi Saleh Ahmad Chowdhury PLD 1968 Dacca 12. It was held that the pre-
requisites to the applicability of section 4 of the Partition Act, 1893 are:

(1) The property must be a dwelling house.

(2) It must belong to an undivided family:

(3) There must be transfer of a share of the dwelling house.

1933
(4) The transferee must be a person who is not a member of the undivided family.

(5) There must be a suit for partition.

(6) One or more members of the undivided family must undertake to purchase the share of the
transferee.

Section 4; it was observed, "was enacted to afford protection to the members of an undivided
family against a stranger purchaser. Its simple object was to prevent intrusion into the dwelling
house of an undivided family by strangers on the basis of purchase of some share in such
dwelling house," and that "in order to get the benefit of section 4 of the Partition Act, it is not
necessary that a person must live in the family dwelling house. It is not the residence but the
ownership of the family dwelling house that entitles a person to apply under section 4 of the
Act". Support for this view was gained from Md. Mogdu Bhuiya alias Magdu Bhuiya v. Jabban
Huq and others 11 PLR 355.

11. For his contention that when a house or a part of it has been let to tenants, it ceases to be a
family dwelling house, learned counsel for the respondent- referred to Abinash Chandra
Cahkarvatty v. Sm. Kamal Devi AIR 1953 Patna 344 and J. C. Chitterji and others v. Maung
Mye and another AIR 1940 Rangoon 53.

12. It is evident that it is necessary for the application of section 4 of the Partition Act that the
dwelling house in question is joint and undivided, for if a dwelling house has been divided
among its co-sharers and each co-sharer is in possession of his divided share, then no occasion
for its partition would arise. In other words, it is necessarily implied by reason of the subject-
matter of the Partition Act in general and section 4 in particular that section applies only to an
undivided dwelling house. This highlights the importance of the expression "undivided family".
With great respect, therefore, we are unable to adopt the view that the expression" undivided
family" means undivided qua the dwelling house in question and that it is sufficient for the
application of section 4 that the family owns the house jointly and has not divided it. This view
of section 4, in our opinion, fails to give any meaning to the expression "undivided family". In
our judgment, therefore, the test is not that the house in question is an undivided dwelling house;
the test must be that the house belongs to an undivided family.

1934
13. It is also apparent from the plain words of section 4 that not only should the dwelling house
belong to an undivided family, but also the person who undertakes to purchase the share of the
transferee must be a member of that undivided family.

14. The crucial question, therefore, is what is a `family' and what was intended to be conveyed
by the expression "undivided family".

15. There are many general words in common usage in the law which have no precise or constant
meaning but few have been used with so many shades of meaning in different contexts or have
so freely acquired new meanings with the development of the law as the word `family'. It is a
popular and not a technical expression and indeed much turns upon the context in which it has
been used. This is so because the family is a social unit and its meaning has changed from age to
age and society to society.

16. In its broad general sense, the word `family' means a group of person consisting of parents
and children; a collective body of persons who live in on house and under one head or
management. (Per Mukerji J in Nil Kamal case also see Black's Law Dictionary, Fifth edition).

17. The concept of a joint family is very well known to the Hindu law. The joint and undivided
family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint
not only in estate but also in food and worship. The existence of joint estate is not an essential
requisite to constitute a joint family and a family which does not own any property may
nevertheless be joint. Further, the conception of a joint Hindu family constituting a coparcenary
is that of a common male ancestor with his lineal descendants in the male line within four
degrees counting from and inclusive of such ancestor. No coparcenary can commence without a
common male ancestor, though after his death it may consist of collaterals, such as brothers,
uncles and nephews, cousins etc. and the essence of a coparcenary under the Mitakshara law is
unity of ownership. The ownership of the coparcenary property is in the whole body of
coparceners. According to the true notion of an undivided family governed by the Mitakshara
law, no individual member of that family, whilst it remains undivided, can predicate, of the joint
and undivided property, that he, that particular member, has a definite share, one-third or one-
fourth. No family can be a coparcenary under that law. In fact, the property, according to the
Hindu law, is divided into two classes, namely, (1) joint family property, and (2) separate
property and a joint family or coparcenary property is that in which every coparcener has a joint
interest and a joint possession. The 'principal incidents of joint family or coparcenary property
are that (a) it devolves by survivorship, not by succession and, (b) it is property in which the

1935
male issue of the coparceners acquires an interest by birth. (See Mulla's Principles of Hindu Law
(Tenth edition) Chapter 12, paras 212, 213, 214, 216, 217, 220 and 221). Then the position of a
female in Hindu law is that of perpetual tutelage. There are different sorts of stridhan properties
in Hindu law; broadly speaking, one over which a female has absolute right of ownership and
which she can use, give, or sell quite independently of her husband's control, the other over
which her powers are subject to her husband's consent. Ghulam Ali and 2 others v. Mst: Ghulam
Sarwar Naqvi PLD 1990 S C 1,15.

18. In sharp contrast to the well recognized conception of an undivided Hindu family, the Islamic
law "does not allow the conception of a family life toy overshadow its fundamental principle,
namely, individual responsibility and liberty. Each member of the family is endowed with full
legal capacity and the law does not sanction any joint family system of holding property as is
prevalent among the Hindus. Whatever authority the law vests in the head of the family is based
either on contract or on necessity for the protection of those members of the family who are
unable to take care of themselves". (The Principles of Muhammadan Jurisprudence by Sir Abdur
Rahim at page 326). This is because "as soon as an owner dies, succession to his property opens.
There is no State intervention or clergy's intervention needed for the passing of the title
immediately to the heirs. Thus it is obvious that a Muslim's estate legally and judicially vests
immediately on his death in his or her heirs and their rights respectively come into separate
existence forthwith.”

Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, 12,

19. In the present day western civilization, there are some societies in which the law recognizes a
body of persons consisting of a man and woman, living as husband and wife, though not legally
married, and their illegitimate children as a family. Indeed, this is inconceivable in our society.

20. In view of what has been said above, particularly the conception of an undivided Hindu
family, we are left with the impression that section 4 'of the ' Partition Act smacks of the
influence of Hindu law. In any case, the parties here being Muslims, the expression must be
understood in the context of an Islamic society, and if need be, re-interpreted accordingly, for, to
quote from the preamble of the Constitution of the Islamic Republic of Pakistan, "it is the will of
the people of Pakistan to establish an order ……….wherein the Muslims shall be enabled to
order their lives in the individual and collective spheres in accordance with the teachings and
requirements of Islam as set out in the Holy Quran and Sunnah". We do not, therefore, think that
the concept of "undivided family", as understood in Hindu law, has any relevance in an Islamic
society.

1936
21. It was said that the right given by section 4 of the Partition Act is assimilable to the right of
pre-emption, its object being to exclude the intrusion of strangers into a family dwelling house.
This contention overlooks the Islamic pre-emption law, under which a co-sharer has a right to
purchase the share of another co-sharer in preference to a stranger. This right has received
legislative recognition in the recently enacted Punjab Pre-emption Ordinance, 1990.

22. There may be cases in which a family consists of a father and married sons and daughters
living under the same roof, the father being the head of the family. But it will cease to be a
`family' when the father dies, the house devolves upon his children in definite shares, and the
married sons and daughters, start living with their families independently of each other.

23. As the legislature has used the adjective "undivided" with the expression "family" and as the
law must be presumed to intend to mean what it says, this was not without significance. The
question must, therefore, be asked-- undivided in what? One need not strain one's imagination to
conjure up cases, for there are many, in which a group of persons, though descended for the same
ancestor and related in blood, are living in the same dwelling house as independent families; they
have separate establishments; they have separate living and cooking facilities and do in fact live
separate and apart. Such families would not, in our opinion; be within the expression "undivided
families".

24. We now proceed to apply these tests to the facts of this case. It is in evidence that the house
in suit devolved upon the two sisters many years ago. They were married and it is obvious that
with their marriage, each sister became a member of the family of her husband. In other words,
whatever their status before their marriage, the two sisters ceased, after their marriage, to be the
members of the same family.

25. Assuming that this was a family dwelling house atone time, Muhammad Amjad, a son and
attorney of Mst. Arjumand Bano, admitted in his evidence that the plaintiff, now respondent,
lead been living in the portion of Mst. Balqis Jehan Begum as a tenant since long before the sale
in 1982 and also that Mst. Arjuinand Bano had rented out as many as six rooms of her portion of
the house to tenants. Before us, learned counsel for the appellant candidly admitted that four of
the rooms on the ground floor in the appellant's portion are with tenants and that those tenants
are using their rented premises for commercial purposes.' In the circumstances, we cannot regard
the house at the date of the sale in the respondent's favour to be a family dwelling house. When
the respondent occupied the portion of Mst. Balqis Jehan Begum as her tenant; he did not do so
as a member of the family. Similarly, the tenants of the appellant Mst. Arjumand Bano could

1937
also not be regarded as the members of the parties' family and the fact that a portion of the house
is being used by, the tenants for, commercial purposes also strongly militates against the house in
question being a family dwelling house.

26. For these reasons, we do not think that there is any merit in the appeal or that the application
under section 4 of the Partition Act is entitled to succeed. The appeal and the application are
dismissed with costs.

M.B.A./A-1131/L Appeal dismissed.

1938
1939
1940
BOOKS AND ARTICLES ON HUMAN
RIGHTS WRITTEN BY PAKISTANI
AUTHORS
During the last 65 years, Pakistan has not
remained behind in sharing and contributing
knowledge on various subjects and the
subject of human rights has also been
properly dealt with by way of articles and
books on it.
Some of the books and articles are
mentioned below:
Books:
Human Rights, Justice Dr. Munir Ahmad
Mughal, Lahore: Muneeb Book House

1941
Articles:
1. Pakistan’s Islamic Ideology, S. M.
Haider9
2. Human Rights Origins and Growth,
Parvez Hassan10
3. Human Rights, Niazul Haq Khan11
4. The Ethical Basis of Democracy
and Human Rights in Islam, A. R.
Cornelius12
5. Islamic Concept of Human Rights,
Fakhruddin Malik13

9
Islamic Concept of Human Rights, Dr. S. M. Haider, Lahore: the Book House, 1978, pp. 1-6.
10
Ibid, pp. 7-13.
11
Ibid, pp. 14-28.
12
Ibid, pp. 29-47.
13
Ibid, pp. 48-68.

1942
 6. Islamic Concept of Human Rights,
Munir Ahmad Mughal14
7. Islamic Concept of Human Rights,
Saghir Hasan Masumi15
8. Islamic Concept of Human Rights,
Mohammad Ahmad Hassan Khan16
9. Islamic Concept of Human Rights,
M. A. Saeed17
10. Evolution of Concept of Human
Rights and the Role of the United
Nations, M. Yousaf Saraf18

14
Ibid, pp. 69-82.
15
Ibid, pp. 83-92.
16
Ibid, pp. 93-105.

17
Ibid, pp. 106-111.
18
Ibid, pp. 112-147.

1943
 11. Evolution of Concept of Human
Rights and the Role of the United
Nations, Mrs. Nafisa Ahmad19
12. Evolution of Concept of Human
Rights and the Role of the United
Nations, Naeem Mirza20
13. Evolution of Concept of Human
Rights and the Role of the United
Nations, Harunur Rashid21
14. Evolution of Concept of Human
Rights and the Role of the United
Nations, A. Rashid Shaikh22

19
Ibid, pp. 148-164.
20
Ibid, pp. 165-178.
21
Ibid, pp. 179-192.
22
Ibid, pp. 193-203.

1944
 15. Evolution of Concept of Human
Rights and the Role of the United
Nations, Syed Zamir Hamid Jafry23
16. Equality Before Law and Equal
Protection of Law as Legal
Doctrine for the Prevention of
Discrimination and Protection of
Minorities, S. M. Haider24
17. Due Process of Law: Process of
Shari’ah, Hidayat Hussain25
18. Islamic Concept of Human Rights,
A. R. Cornelius26
19. Concept of Justice in Islam, A. R.
Cornelius27
23
Ibid, pp. 204-212.
24
Ibid, pp. 213-237.
25
Ibid, pp. 238-248.
26
Ibid, pp. 249-268.

1945
27
Ibid, pp. 269-290.

1946