Binding Effect of SC

2011 P L C (C.S.
) 273
[Sindh High Court]
Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ
ABDUL HUSSAIN KORAI and 82 others
Versus
PROVINCE OF SINDH through Chief Secretary Government of Sindh and 2 others
Constitutional Petition No.D-1302 of 2010, decided on 7th October, 2010.
(a) Constitution of Pakistan---
----Arts. 189 & 190---Decisions of Supreme Court are binding on all courts and under
Art.190 of the Constitution all executive and judicial authorities have been mandated to
act in the aid of Supreme Court---Words "legislative authority" have not been included in
Art.190 of the Constitution.
(b) Legislation---
----Provincial Legislature---No Province could be obliged to make a particular provision

merely on ground that another Province or Provinces had enacted similar provision---If
uniformity in Provinces in legislative domain would have been intended by legislature,
then there was no need for provincial autonomy and separate legislature for each
Province.
(c) Civil service---
----Contract employee released upon completion of project---Validity---Such release

could not be said to be without lawful authority.
Sarfraz Ahmed v. Government of Sindh, 2006 PLC (C.S.) 1304 distinguished.
Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR
1930; Naila Khalid v. Pakistan through Secretary Defence and others PLD 2003 SC 420;
Ateequr Rehman and others v. Federation of Pakistan and others Civil Petition No.246-K
of 2010 and Government of Balochistan, Department of Health, through Secretary, Civil
Secretariat, Quetta v. Dr. Zahida Kakar and 43 others 2009 PLC (C.S.) 206; WAPDA and
others v. Khanimullah and others, 2000 SCMR 879 and President United Bank Ltd. v.
Abdul Shamim Khan, PLD 1999 SC 990 rel.
Abdul Mujeeb Pirzada, Shabbir Ahmed Awan for Petitioners.
Nariandas C. Motiani for Respondent No.2.
Adnan Karim, A.A.-G.
Date of hearing: 5th October, 2010.
JUDGMENT
SHAHID ANWAR BAJWA, J--- For reasons to be recorded later, this Constitution
Petition was dismissed. Following are our reasons for the short order announced in open
Court:--
2. The petitioners were appointed on various posts on contract basis in Sindh On-Farm
Water Management Project (SOFWMP) in 2005. In the appointment letters it was
specifically stated that the employment shall be liable to termination before expiry of
project on giving one month's notice by either side or making payment in lieu thereof. It
Page No. 1 of 6
was further stated in Para-3 of the letter as under:--
"(3) He will be governed by the Sindh Civil Servants Rules as amended from time
to time and instructions in force relating to the services and the Sindh Civil
Servants Act 1973 and the rules there under."
3. By letter 1st June, 2009 petitioners were informed that the project was going to be
closed on 30-6-2009 and that the World Bank Mission had informed Government of
Sindh that the salaries of contract staff of SOFWMP would not be released after June,
2009. Consequently they were informed that in terms of para.4 of contract of their
employment, their employment shall terminate with effect from 30-6-2009. This
Constitution Petition has been filed to challenge the termination of employment.
4. Mr. Abdul Mujeeb Pirzada learned counsel for some of the petitioners made the
following submissions:--
(1) There were two projects one called Sindh On-Farm Water Management Project
(SOFWMP) which was managed by the Provincial Government and one National
Programme for Improvement of Watercourses (NPIW) which was managed by
the Federal Government. In a meeting held on 25-11-2005 it was decided to
merge two projects for the purpose of strengthening field teams. Learned counsel
submitted that while the persons appointed for SOFWMP have been removed
from employment. The persons employed on (NPIW) have not been so removed.
(2) Learned counsel referred to newspaper clipping (Dawn of June 7, 2009) to

contend that the Chief Minister had announced that (NPIW) has been extended
for three more years. He also referred to an interview by the Provincial Law
Minister wherein it was stated that Provincial Government intended to present a
bill in the Provincial Assembly for making contract employees as permanent
employees. In this regard learned counsel referred to a summary submitted
before the Chief Minister to state that the employees employed in (NPIW) and
(SOFWM) in Punjab and Sindh have been regularized and if Chief Minister so
decide a bill can be moved in the Provincial Assembly for regularization of
employees of (SOFWM).
(3) Learned counsel referred letter dated December 1st 2005 to say that some of the
employees were transferred (SOFWM) to (NPIW). Learned counsel also referred
to certain advertisement where the Agricultural Department has invited
applications for appointment.
(4) Learned counsel referred to an Aide Memoire dated April 30, 2009 wherein it is
stated that further improvement in the watercourses is required.
5. Mr. Shabbir Ahmed Awan learned counsel for some of the petitioners while adopting
arguments of Mr. Abdul Mujeeb Pirzada referred to the above quoted para of the letter of
appointment and contended that the petitioners are civil servants and are therefore not
contract employees. Learned counsel also submitted that since regularization has taken
place in Punjab and Balochistan the petitioners are also entitled to regularization. Learned
counsel referred to Sarfraz Ahmed v. Government of Sindh, 2006 PLC (C.S.) 1304.
6. Mr. Nariandas C. Motiani, learned counsel for respondent No.2 referred to the
comments submitted by respondent No.2 and contended that the petitioners were
employed on project internationally funded and which was for a period of 4 years and
was for completion of 4000 Watercourses in Sindh and was due to be closed in 2008 but
was extended till 30-6-2009 and after closure of the project employment of the petitioners
has been terminated. Regarding the Aide Memoire learned counsel submitted that it is
merely a wish of Provincial Government but no resources have been approved by any
international donors agency. Regarding merger of (NPIW) learned counsel submitted that
it was only for working purposes but the two projects remained distinct and separate all
along. Regarding contentions of the petitioners in terms of Para-3 of the notification of
appointment that they are civil servants, learned counsel submitted that if their contention
is accepted then the jurisdiction of this Court is barred under Article 212 of the
Page No. 2 of 6
Constitution. Learned counsel submitted that petitioners were contract employees and as
such they had no right to continue after completion of the project. Learned counsel relied
upon Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 SCMR
1930, Naila Khalid v. Pakistan, through Secretary Defence and others PLD 2003 SC 420-
and unreported judgment of the Supreme Court in the case of Ateequr Rehman and others
v. Federation of Pakistan and others Civil Petition No.246-K of 2010 decided on 20-9-
2010. Learned counsel submitted that no new recruitment in the category in which the
petitioners were employed has been effected on the projects after removal of the
petitioners.
7. Mr. Adnan Karim, learned A.A.-G. relied upon Government of Balochistan,

Department of Health, through Secretary, Civil Secretariat, Quetta v. Dr. Zahida Kakar
and 43 others 2009 PLC (C.S.) 206. He further submitted that petitioners are not civil
servants.
8. While exercising their right of reply Mr. Shabbir Awan submitted that either the
petitioners are civil servants or they are not. It is not available to the government
authorities to claim that petitioners are liable for the purpose of disciplinary action and
conduct just like civil servants as contended by A.A.-G. and not otherwise. Mr. Pirzada
submitted that same exercise has been carried on in the other Provinces.
9. We have considered the submissions made by the learned counsel and have also gone
through the record. Both Mr. Shabbir Awan and Mr. Pirzada have laid a lot of emphasis
on statement made in para.3 of the notification (para has been quoted above) which states
that the petitioners shall be governed by the Civil Servants Rules and Civil Servants Act.
Their contention was that by this statement the petitioners are entitled to all the protection
in this regard. The contention is obviously misconceived. Firstly because in the Sindh
Civil Servants Act a civil servant is defined in Section 2(b) and under clause (ii) thereof a
person who is employed on contract is ipso facto excluded from the definition of civil
servant. There is. no provision in the Sindh Civil Servants Act conferring a power on the
Provincial Government to make or declare a person as civil servant who does not fall
within the definition of the civil servant as given in Section 2(b) of the Civil Servants
Act. Therefore, since the petitioners were hired on contract and it is so obviously stated in
the notification itself the Provincial Government did not have power to make or declare
them a civil servant. It is in the light of this principle that Para-3 of the notification has to
be read.
10. Intent of the para, it has been argued by Mr. Adnan Karim, is only in respect of
requiring the petitioners to follow the principle relating to conduct and discipline and for
no other purpose. Mr. Shabbir Ahmed Awan vehemently contended that so could not have
been done. We are unable to agree if the Federal Government had hired a person on
contract that person is not a civil servant. Is not it available to every employer to lay
down the standard of conduct and discipline for his employees and unless such laid down
standard of conduct and discipline is found to be repugnant to any provision of law or any
principle having force of law the employer has right to enforce and this is, it is correctly
argued by Mr. Adnan Karim, exactly what was intended by para.3 of the notification.
11. Both the learned counsel for the petitioners emphasized that in the Punjab and
Balochistan contract employees have been regularized and therefore, the same practice
should be followed in the province of Sindh. Mr. Pirzada referred to the summary
submitted by the Law Minister to the Chief Minister that a bill be introduced in the
Provincial Assembly for such regularization. As far as submission of a bill in a Provincial
Assembly is concerned, it is as old a judicial principle as extra-ordinary writ jurisdiction
that no writ can be issued to the Legislature requiring it to legislate. It may be instructive
to note in this regard that under Article 189 of the Constitution decision of the Supreme
Court have been held to be binding on all Courts and under Article 190 of the
Constitution all executive and judicial authorities have been mandated to act in the aid of
Supreme Court. It is significant that word 'legislative authority' has not been included in
Article 190.
12. Pakistan is Federation having four provinces and legislative domains of the
Federation and the Provinces are clearly specified in the Constitution and there is no
Page No. 3 of 6
provision in the Constitution obligating a province to make a particular provision merely
on the ground that another province or provinces have enacted a provision. If uniformity
in the provinces in legislative domain would have been intended of the Legislature there
was no need to provide for provincial autonomy and need for separate Legislatures.
Therefore, mere fact that two Provinces have made similar provision is not sufficient,
though it may be a food for thought or reason for consideration for the provincial
executive, for issuance of a mandatory order to the Provincial Government of Sindh to do
the same.
13. Mr. Shabbir Awan relied upon Sarfraz Ahmed's case (supra). Facts of this case were
that the appellant was appointed as Assistant Director Labour initially for a period of six
months. Before expiry of that period his employment was terminated without assigning
any reason. The Supreme Court noticed that though petitioner was appointed for a period
of six months and though his employment was terminated within the period of six months
but in view of order by the Supreme Court order of termination was suspended and
notification in this regard was issued on 16-7-1997 and his services were continued from
1997 to 10th April, 2006 when the petition was heard by the Supreme Court. The
appellant all along remained in continuous employment. A notification dated 22-9-1998
was also placed before the Supreme Court evidencing that incumbent of the leave
vacancy on which the appellant was employed had been removed from employment and
therefore there was a clear vacancy and therefore, position of availability of vacancy as
specified in the order of the termination was no long available and, the Supreme Court
held that the appellant had a vested right to be appointed against the said vacancy. This
case is clearly distinguishable. It was not of contract employment but of appointment on a
leave vacancy.
14. On the other hand, Mr. Motiani relied upon Agha Salim Khurshid's case (supra). The
facts of that case were that appellant who was a practicing lawyer, was appointed as
Member, National Industrial Relations Commission (NIRC) for a period of three years.
Four months later the appointment of the petitioner was terminated. He challenged
termination in the High Court and then the matter went to the Supreme Court and the
Supreme Court held as under:--
"(5) The learned counsel for .the appellants has further contended that before
terminating their services, the appellants were entitled to notice and that the
appointment being statutory in nature, the Federal Government had no power to
terminate their service contract. We are unable to subscribe to the above
contention of the learned counsel for the appellants. The contract of service, under
which the two appellants were appointed, specifically provided that their
appointments shall be liable to termination on 3 months' notice or 3 months' salary
in lieu thereof on either side without assigning any reason. Such a contract, in our
view, does not create any vested right in the appointee so as to make him entitled
to notice before termination of the contract of service."
15. Mr. Motiani also relied upon Naila Khalid's case (supra). She was appointed as a
Lecturer in a college on adhoc basis for six months or till availability of Federal Public
Service Commission nominee. She was relieved after four years when the F.P.S.C.
nominee was selected. The Supreme Court observed as under:--
"He is right in stating that, in law, there is no concept of reinstatement of an ad

hoc employee whose services were dispensed with in accordance with the terms
and conditions of offer of appointment. Undoubtedly, the petitioner was appointed
as lecturer on adhoc basis as a stopgap arrangement for tenure of six months or till
the availability of a nominee by F.P.S.C. Ad hoc appointment of a person does not
confer any right or interest to continuous appointment, seniority, or promotion. It
is held by an incumbent till a person is regularly selected by the Public Service
Commission for the post held by an adhoc appointee. It is well settled that the
services of such employee can be dispensed with at any moment without
assigning any reason."
16. Mr. Adnan Karim referred to Dr. Zahida Kakar's case (supra). She was appointed as
Medical Officer on contract purely on temporary basis for a period of six months
Page No. 4 of 6
extendable for a period of 2 years. Last extension expired on 31-3-2000 and upon such
expiry her employment was terminated. It was however, notified that she may apply for
selection to Public Service Commission which had already advertised the posts. She
approached High Court and through an interim order she was allowed to continue. The
interim order was confirmed which confirmation was challenged in the Supreme Court.
The Supreme Court vacated the interim order observing that the respondents before it
were employed purely temporary basis and specifically on contract and such contract
stood terminated on the expiry of contract period or any extended period on choice of the
employer or appointment authority. It was held that Prima facie, it did not create any
vested right. In WAPDA and others v. Khanimullah and others, 2000 SCMR 879,
respondents were employed on a project in 1986 and on completion of the project they
were declared surplus and were accordingly discharged from service in 1992. The matter
meandered through the Courts in judicial hierarchy and eventually reached the Supreme
Court. The Supreme Court held that since they were employed on a project and were
released on completion of the project there was nothing wrong in such a release. Lastly
reference may be made to the unreported judgment of the Supreme Court in Ateequr
Rehman's case (supra). Petitioners were appointed on adhoc basis and condition was
specified in the letter that the appointment on the regular basis shall be made after they
have completed 5 months of training at the Audit and Accounts Training Institute and
passed requisite examinations. Before the Supreme Court it was argued that employment
was governed by Rule 6(3) of the Civil Servants Act read with Rule 21 of the
Appointment, Promotion and Transfer Rules and therefore the test was not a prescribed
requirement. This contention was rejected by the Supreme Court and it was observed that
since the petitioners failed to pass the test they were not entitled to become regular
employees.
17. In the present case, the petitioners were hired on contract for a project and were
released upon completion of the project (whether the project completed or not to that we
shall return later), therefore, their t release upon completion of the project cannot be said
to be without lawful authority and of no legal effect.
18. Mr. Abdul Mujeeb Pirzada referred to Aide Memoire dated April 30, 2009. In the last
para of the Aide Memoire itself the following is written:---
"The proposed Additional Financing is expected to go to Board for consideration

around 25 June 2009. To meet this target, that the Negotiation should take place
between 15-20 May. The Bank will send out the invitation to negotiate in due
course."
This clearly indicates that the Aide Memoire is merely a wish of the Provincial
Government and it desired to approach international lending institutions. No material has
been placed on record that any loan was taken or has been granted for continuation of the
project. Mr. Pirzada relied upon advertisement published in "Daily Kawish' on June 6,
2009. That advertisement stated that the Federal Government has given an application for
additional loan for Sindh On-Farm Water Management Project. Such application has been
submitted to International Development Association (I.D.A) Through advertisement the
Provincial Government expressed its intent to initiate process of Supervisory and
Monitoring Consultancy Services and for that it invited applications from Consultancy
Firms/Consortium. The fact that the applications have been invited from consultancy
firms etc. cannot be taken to mean that project has commenced and loans have been
granted by any international lending agency. It is clearly stated by respondent No.2 that
project has come to an end no material has been produced that further loan has been
received an end no material has been produced that further loan has been received and the
project is otherwise continuing. Therefore, the available record indicates that the project
Sindh On-Farm Water Management Project has concluded.
19. Mr. Pirzada also referred to letter dated 1st December, 2005 which indicates that
some of the officers from (SOFWM) project were transferred to (NPIW) in 2005. If they
were transferred in 2005 it cannot be said to be a malafide transfer because the present
petitioners' contract was terminated in June, 2009. A decision taken four years earlier
cannot be said to be mala fide by merely alleging that the authorities were intending to
remove others in 2009. If any authority in this regard is needed, one may refer to
Page No. 5 of 6
President United Bank Ltd. v. Abdul Shamim Khan, PLD 1999 SC 990.
20. Result of the above discussion is that this Constitution Petition is dismissed in limine.
Listed application is also disposed of. The above are our reasons for the short order
announced in open Court on 5-10-2010.
S.A.K./A-114/K Petition dismissed.
Page No. 6 of 6
2 0 11 S C M R 437
[Supreme Court of Pakistan]
Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ
IFFAT JABEEN---Appellant
Versus
DISTRICT EDUCATION OFFICER (M.E.E.), LAHORE and another---

Respondents
Civil Appeal No. 592 of 2006, decided on 2nd October, 2009.
(On Appeal from the judgment, dated 22-7-2005 passed by the Punjab Service
Tribunal, Lahore, in Appeal No.2396 of 2003).
(a) Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr. 5 & 6---Constitution of Pakistan, Art.212(3)---Leave to appeal was granted by

Supreme Court to consider the contention of petitioner that she was graduate at the time
of her appointment and thereafter, she further improved her educational qualification as
M.A., B-Ed and C.T. during her service and order passed by authorities of removal of
petitioner from service was not sustainable at law inasmuch as there was no concealment
or misrepresentation of any material fact o n the part of her who had rendered
satisfactory service before removal from service and further contended that quantum of
punishment did not commensurate the nature of charge.
(b) Government Servants (Efficiency and Discipline) Rules, 1973---
---Rr. 5 & 6---Removal from service---Imposing of major penalty---Concealing of facts---

Civil servant was appointed as untrained teacher ' but she received salary of regular
teacher---Authorities removed the civil servant from service on the allegation of securing
"service by playing fraud with authorities---Validity---During her service, civil servant
improved her qualification as M.A., B.Ed. and C.T. and also gained experience as a
teacher for ten years---Service Tribunal decided the case in violation of dictum laid down
by Supreme Court and even without perusing record after application of mind, as the
same was a condition precedent for passing a decision---Supreme Court set aside the
judgment passed by Service Tribunal and reinstated the civil servant in service without
back-benefits in accordance with law, as she did not perform any duty---Appeal was
allowed.
Zulfiqar Ali's case 2006 SCMR 678; Abdul Waheed's case 2004 SCMR 303; Secretary to
Government of N.-W.F.P.'s case 1996 SCMR 413; Abdul Hafeez Abbasi's case 2002
SCMR 1034; G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD
1970 SC 173 rel.
(c) Constitution of Pakistan---
----Arts. 189 & 190-Judgment of Supreme Court is binding on each and every organ of
State.
(d) Administration of justice---
----Application of correct law---Improper advice of counsel---Effect---Judge must wear

all laws of country on the sleeves of his robe and failure of counsel as to properly advise
him is not a complete excuse in the matter.
Muhammad Sarwar's case PLD 1969 SC 278 rel.
Mian Mahmood Hussain, Advocate Supreme Court for Appellant.
Page No. 1 of 3
Saeed Yousaf Khan, Additional Advocate-General Punjab, Ch. Muhammad Aslam, Law
Officer/Assistant Education Officer, D.E.O. Office, Lahore for Respondents.
Date of hearing: 2nd October, 2009.
JUDGMENT
CH. IJAZ AHMED, J.---Appellant filed C.P. No.2019-L of 2005 wherein appellant has
sought leave to appeal against the judgment of the Punjab Service Tribunal, Lahore dated
22-7-2005 wherein order of her removal by the competent authority and rejection of her
representation by the appellate authority were not set aside. The petition was fixed before
this Court on 21-3-2006 and leave was granted in the following terms:--
"The learned counsel for the petitioner argued that the petitioner was graduate at
the time of her appointment. Thereafter, she further improved her educational
qualification as M.A., B.Ed. and C.T. during her service. The order dated 4-7-
2003 passed by respondent No.1 of the removal of the petitioner from service was
not sustainable at law inasmuch as there was no concealment or misrepresentation
of any material facts on the part of the petitioner who had rendered satisfactory
service before her removal from service on 4-7-2003. It was lastly submitted that
the quantum of punishment did not commensurate the nature of the charge.
Leave to appeal is granted to consider, inter alia, the above and other submissions
of the learned counsel."
2. Learned counsel for the appellant submits that impugned judgment is not sustainable in
the eyes of law in view of the inquiry report submitted by the Inquiry Officer against her.
Inquiry was conducted in violation of mandatory provisions of Efficiency and
Disciplinary Rules. The appellant was inducted in the service by the competent authority
in accordance with the law as is evident from the inquiry report and she was removed
from service after 10 years. This fact was not considered by Service Tribunal in the
impugned judgment.
3. Learned Law Officer submitted that appellant secured her appointment by playing
fraud with the Department as her appointment letter did not exist in their record. He has
vehemently supported the impugned judgment.
4. We have given our anxious consideration to the contentions of the learned counsel of
the parties and perused the record. It is better and appropriate to reproduce the operative
part of the impugned order dated 4-7-2003 wherein the appellant was removed from
service.
"Whereas Mst. Raheela Arjumand, SST/Headmistress, Government Shah Din

Aslam Middle School Shad Bagh, Lahore was appointed as Enquiry Officer. The
Enquiry Officer after conducting the enquiry sent her report with the
recommendation that Service Record of the teacher found bogus, i.e. she was
appointed PTC regular by Mirza Muhammad Shafi the then Deputy District
Education Officer (M) Lahore City vide No.1020/E-I dated 10-5-1993 while she
was untrained but not verified and she received salary as regular teacher. The
appointment orders are not verified by the Deputy District Education Officer
concerned, domicile was not available."
5. Mere reading of the aforesaid order clearly envisages that appellant was appointed as
untrained teacher but she received salary for regular teacher. During her service she had
improved her qualification as M.A., B.Ed. and C.T. and also gained experience as a
teacher for 10 years. The impugned judgment is not in consonance with the law laid
down by this Court in various pronouncements. See:
(i) Zulfiqar Ali's case (2006 SCMR 678)
(ii) Abdul Waheed's case (2004 SCMR 303)
Page No. 2 of 3
(iii) Secretary to Government of N.-W.F.P.'s case (1996 SCMR 413)
(iv) Abdul Hafeez Abbasi's case (2002 SCMR 1034)
The relevant observation from the Abdul Hafeez Abbasi's case is as follows:
"We have noted in number of cases that Departmental Authorities do show haste
at the time of making such appointments when directives are issued to them by
the persons who are in the helm of affairs without daring to point out to them that
the directions are not implementable being contrary to law as well prevalent Rules
and Regulations. In fact such obedience is demonstrated by the concerned officers
of the Departments to please the Authorities governing the country just to earn
their time being pleasures but on the change of regime they do show speed in
undoing illegal actions which they themselves have accomplished in the previous
regime and due to their such illegal acts the employees who were appointed suffer
badly without any fault on their part and then even nobody bothers for their future
career. Therefore, we are of the opinion that in such situation besides proceedings
against the beneficiaries of so-called illegal appointments the officers who were
responsible for implementing illegal directives should also be held equally
responsible and severe action should be taken against them so in future it may
serve as deterrent for other like-minded persons. This Court in an identical case
declined to grant leave to appeal in the case of Secretary to Government of N.-
W.F.P. 1996 SCMR 413-and observed that it is disturbing to note that in this case
petitioner No.2 had himself been guilty of making irregular appointment on what
has been described "purely temporary basis". The petitioners have now turned
around and terminated his service due to irregularity and violation of rule 10(2)
(ibid). The premise, to say the least, is utterly untenable. The case of the
petitioners was not that the respondent lacked requisite qualification. The
petitioners themselves appointed him on temporary basis in violation of the rules
for reasons best known to them. Now they cannot be allowed to take benefit of
their lapses in order to terminate the services of-the respondent merely because
they have themselves committed irregularity in violating the procedure governing'
the appointments."
6. It is settled proposition of law that judgment of this Court is binding on each and every
organ of the State by virtue of Articles 189-190 of the Constitution. It is settled law that
Judge must wear all the laws of the country on the sleeve of his robe and failure of the
counsel as to properly advise him is not a complete excuse in the matter as law laid down
by this Court in Muhammad Sarwar's case (PLD 1969 SC 278).
7. The learned Service Tribunal had decided the case in violation of the dictum laid down
by this Court in the aforesaid judgments and even without perusing the record after
application of mind as evident from the operative part of the order of department dated 4-
7-2003 reproduced hereinabove. Mere reading of the impugned judgment, it is crystal
clear that the learned Service Tribunal had decided the case without application of mind
which is condition precedent in view of law laid down by this Court in G.M. Sikdar's
case (PLD 1970 SC 158) and Mollah Ejahar Ali's case (PLD 1970 SC 173).
8. In view of what has been discussed above this appeal is accepted and the impugned
judgment of the Service Tribunal is set aside and the respondents are directed to reinstate
the appellant without back-benefit of any salary as she did not perform any duties.
However, she is entitled other benefits in accordance with law, if any.
M.H./I-21/SC Appeal allowed.
Page No. 3 of 3
2010 P L C (C.S.) 641
Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ
SECTION OFFICER, GOVERNMENT OF PUNJAB, FINANCE

DEPARTMENT and others
Versus
GHULAM SHABBIR
Civil Appeal No.381-L of 2009, decided on 5th April, 2010.
(Against the judgment dated 24-11-2008 passed by the Lahore High Court,
Bahawalpur Bench in Writ Petition No.3300 of 2008).
(a) Constitution of Pakistan (1973)---
----Art. 185 (3)---Leave to appeal was granted by Supreme Court to consider the
contentions of employer/bank that High Court had erred in law in allowing employee's
constitutional petition as he could not have withdrawn his request for retirement after
availing leave preparatory to retirement and that if order passed by High Court would be
allowed to remain in field it would be taken as precedent and entire fabric of service
would be punctured, while the employee contended that petition was barred by time and
before completion of leave preparatory to retirement, he had lawfully withdrawn his
request for retirement.
(b) Punjab Civil Services Pension Rules, 1955---
----R. 3.5, Note-I---ESTACODE, 2003 Edition (Punjab), page 690---Leave preparatory

to retirement---Withdrawal---Respondent was employee of bank, who applied for
voluntary retirement and had availed leave preparatory to retirement---After availing
almost full period of leave preparatory to retirement, employee withdrew his option of
retirement---Bank did not allow the employee to. withdraw his option of retirement but
High Court in exercise of constitutional jurisdiction directed the bank to let the employee
withdraw his option of retirement---Validity---Employee availed leave preparatory to
retirement for almost 365 days in view of his acceptance of retirement by bank vide order
dated 16-6-2006 coupled with the fact that employee had submitted application for
withdrawal of his voluntary retirement just five days before his actual retirement on 30-6-
2007---Employee had taken benefit of order dated 16-6-2006 and had mentioned his
intended date of retirement as 30-6-2007--On 19-5-2008, competent authority dismissed
his application for withdrawal of his resignation with cogent reasons in terms of law on
the subject---Employee had failed to point out any illegality in the order passed by
bank---High Court accepted constitutional petition filed by employee, without adverting
to relevant rules on the subject---Judgment passed by High Court was set aside by
Supreme Court while the order dated 19-5-2008, passed by authorities was upheld---
Appeal was allowed.
(c) Administration of justice---
----Judge must wear all laws of the country on the sleeves of his robe and failure of
counsel to properly advise is not a complete excuse in the matter.
Muhammad Sarwar's case PLD 1969 SC 278 and Shamoon Bahadur's case PLD 1979 SC
835 rel.
(d) Constitution of Pakistan (1973)---
----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of

Supreme Court is binding on each and every organ of the State by virtue of Arts.189 and
Page No. 1 of 3
190 of the Constitution.
Muhammad Iqbal's case 1984 SCMR 334 rel.
Muhammad Hanif Khattana, Additional Advocate-General for Appellants.
Mian Shah Abbas, Advocate Supreme Court for Respondent.
Date of hearing: 5th April, 2010.
JUDGMENT
CH. IJAZ AHMED, J.--- Necessary facts out of which the present appeal arises are that
respondent was appointed by the appellants as Junior Clerk in Agricultural Department.
He had completed 26 years and 3 months service qualifying for pension. Respondent
submitted an application before Appellant No. 3 for voluntary retirement. He also
submitted an application for securing LPR w.e.f. 1-7-2006 to 30-6-2007 before appellant
No.3 who accepted the same vide order dated 16-6-2006. Notification also contained the
following para:---
"He shall stand retired from Government Service with effect from 30-6-2007
(after noon)".
2. Respondent submitted an application under the subject `request for cancellation of

LPR Ghulam Shabbir, LC." on 24-6-2007 which was received in the office of the
appellants on 25-6-2007 and the same was forwarded by his parent department to the
Finance Department. The same was declined in the light of note No.1 beneath Rule 3.5.
of the Punjab Civil Services Rules. Respondent being aggrieved filed Constitutional
Petition No.3300 of 2008 in the Lahore High Court, Bahawalpur Bench which was
accepted vide impugned judgment.
3. On 29-5-2009, this Court granted leave to the petitioners/ appellants, relevant para
therefrom is reproduced hereunder:---
"Learned Law Officer, on merits, submitted that the respondent voluntarily

applied for retirement, the Department allowed his application, vide order dated
16-6-2006 and sanctioned LPR, which was to expire on 30-6-2007 on which date
he was to retire but the respondent after availing total period of LPR applied for
withdrawal of his request for retirement; that the learned High Court erred in law
in allowing respondent's constitutional petition as the respondent could not have
withdrawn his request for retirement after availing LPR and that if the impugned
order is allowed to be remained in field it will be taken as precedent and the entire
fibre of service will be punctured. Conversely, learned AOR for the respondent,
submitted that the petition was barred by time and that the respondent before
completion of LPR lawfully withdrew his request for retirement. Having heard
learned Additional Advocate General and the learned AOR for the respondent, we
grant leave to appeal to the petitioners, to inter alia, consider the afore-noted
contentions, subject to the bar of limitation, which question will be decided at the
time of hearing the appeal."
4. Learned Additional Advocate General submits that impugned judgment is not in

consonance with Punjab Civil Service Pension Rules, 1955 particularly note-I of rule 3.5
under the heading retiring pension. He also urged that impugned judgment is not in
consonance with the law laid down by this Court in various pronouncements.
5. Learned counsel for the respondent has supported the impugned judgment.
6. We have given our anxious consideration to the contentions of learned counsel for the
parties and perused the record. It is better and appropriate to reproduce basic facts
alongwith note-I in rule 3.5 retiring pension of said rules to resolve the controversy
between the parties:
Page No. 2 of 3
(i) Respondent submitted application for voluntary retirement alongwith another
application to secure LPR w.e.f. 1-7-2006 to 30-6-2007 which was accepted vide
order dated 16-6-2006 alongwith the observation that respondent would stand
retired from service w.e.f. 30-6-2007 (after noon).
(ii) Respondent submitted an application 4/5 days before his actual date for
withdrawal of his voluntary resignation to the appellants on 26-6-2007 which was
forwarded by the appellants to the Finance Department and the same was rejected
vide order dated 19-5-2008.
PUNJAB ESTACODE, RULE 3.5 NOTE-I:
{Note (1) Subject to the provisions of the Essential Services Maintenance Act, all
government servants shall have the right to retire on a retiring pension after
completing 25 years qualifying service; provided that a government servant, who
intends to retire before attaining the age of superannuation, shall, at least three
months before the date on which he intends to retire, submit a written intimation
to the authority which appointed him, indicating the date on which he intends to
retire. Such an intimation, once submitted, shall be final; provided that if a
government servant withdraws his application for voluntary retirement, or
modifies the date of such retirement, before its acceptance by the competent
authority, the application or the date of retirement shall be deemed to have been
withdrawn or modified, as the case may be.
7. In case the aforesaid facts and the Note-I of Rule 3.5 of the Punjab Civil Services
Pension Rules, 1955 (Punjab ESTACODE 2003 page 690) are put in a juxtaposition, then
respondent had availed LPR almost 365 days in view of his acceptance of his retirement
by the appellants vide order dated 16-6-2006 coupled with the fact that the respondent
had submitted an application for withdrawal of his voluntary retirement just five days
before his actual retirement on 30-6-2007. This fact brings the case of the respondent that
the respondent had taken the benefit of the order dated 16-6-2006. The respondent had
mentioned his intended date of retirement as 30-6-2007. The competent authority had
dismissed his application for withdrawal of his resignation with cogent reasons in terms
of laws on the subject as mentioned above vide order dated 19-5-2008. Respondent had
failed to point out any illegality in the impugned order of the appellate dated 19-5-2008.
The learned High Court had accepted the constitutional petition without adverting to the
relevant rules on the subject as evident from the contents of the impugned judgment. It is
a settled law that a Judge must wear all the laws of the country on the sleeve of his robe
and failure of the counsel to properly advise is not a complete excuse in the matter as law
laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278. The question of
law has settled down by this Court since long in Shamoon Bahadur's case PLD 1979 SC
835. The relevant observation in as follows:--
"Nonetheless when the LPR was about to come to an end the respondent, by an
application dated 3rd of June 1971 showed his desire to withdraw his request
which apparently was misconceived as on that date an effective order for his
retirement has already been passed. The option having been once exercised it did
not lie in his mouth to go back on it in the context of the finality of the
consequences ensuing therefrom by its acceptance"
8. The said view was approved by this Court in Muhammad Iqbal's case 1984 SCMR
334. The impugned judgment is not sustainable in the eyes of law on any canon of
justice. It is a settled law that judgment of this Court is binding on each and every organ
of the State by virtue of Articles 189-190 of the Constitution but the learned High Court
had accepted the constitutional petition of respondent in violation of law laid down by
this Court in the aforesaid judgment.
9. In view of what has been discussed above, appeal is allowed as a result whereof
impugned judgment is set aside with no order as to costs.
M.H./S-17/SC Appeal allowed.
Page No. 3 of 3
2010 P L C (C.S.) 297
Present: Sardar Muhammad Raza Khan, Raja Fayyaz Ahmed and Mahmood
Akhtar Shahid Siddiqui, JJ
HAMIDA BEGUM
Versus
GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through Secretary

and others
Civil Petition No.1587 of 2008, decided on 4th August, 2009.
(On appeal from the judgment, dated 11-11-2008 of the Islamabad High Court, Islamabad
passed in I.C.A. No.93 of 2004).
Civil Servants Act (LXXI of 1973)---
----S. 10---Constitution of Pakistan (1973), Arts.185(3)---Deputation---Repatriation to

parent department---Civil servant was employee of Provincial Government and was on
deputation in Education Department, Government of Pakistan.--Authorities issued order
for repatriation of civil servant to her parent department but she wanted to be absorbed
permanently---Validity---Civil servant held lien in her parent department of the province
and could not be absorbed permanently for want of concurrence of Provincial
Government, but such concurrence was not conveyed to Federal Government---Civil
servant was repatriated to her parent department but no response was shown by her parent
department nor concurrence of Provincial Government for permanent absorption of civil
servant was conveyed in absence whereof, service of civil servant could not be absorbed
in the concerned department of Federal Government even if she held requisite
qualification and eligibility for such absorption---Civil servant also did not approach to
Provincial Government for the purpose of grant of "No Objection Certificate" and.
consequently in terms of an earlier order passed by Supreme Court, the office order
issued by Federal Government for repatriation of civil servant held the field---Judgment
passed by High Court was not open to any exception and Supreme Court declined to
interfere in the same---Leave to appeal was refused.
Raja Abdul Ghafoor, Advocate-on-Record/Advocate Supreme Court for Petitioner.
Shah Khawar, D.A.-G., Arshad Anjum, A.D. (FDE), Hadayatullah S.O. (Education),
Peshawar for Respondents.
Date of hearing: 4th August, 2009.
JUDGMENT
RAJA FAYYAZ AHMED, J.--- In the earlier round of litigation culminating in the filing
of Civil Petitions Nos.918, 920, 921, 922, 923, 924, 925, 926, 927, 928, 929, 984, 996,
961, 1142, 1143 and 1230 of 1998 by the petitioner and others against the orders, dated
25-5-1998, 26-5-1998 and 16-7-1998, whereby I.C.As. Nos.40 to 48 of 1998, 50, 52, 55,
53, 59, 61 and 94 of 1998 dismissed by the learned High Court, Rawalpindi Bench,
Rawalpindi were disposed' of by this Court vide order, dated 4-12-1998 in the terms
specified therein reproduced hereunder in extenso:---
"Ajmal Mian, C.J.--- Petitioners in above petitions are School Teachers who were
on deputation in the Federal Ministry of Education, Islamabad, from the
Provinces of Punjab, Sindh and N.-W.F.P. Their husbands are working in various
Government Departments at Islamabad/Rawalpindi. The deputation period of the
petitioners have expired. They do not wish to go back to their respective
Provinces on the ground that their husbands are still posted at
Page No. 1 of 4
Islamabad/Rawalpindi. Mr. Abdul Karim Khan Kundi, Advocate Supreme Court
appearing the petitioners has produced a copy of Office Memorandum No.10/184-
R-5, dated 26th November, 1998 issued by the Government of Pakistan, Cabinet '
Secretariat, Establishment Division, Islamabad, addressed to the Ministry of
Education, Islamabad, which reads as follows:---
Office Memorandum
Subject: Absorption of Female Teachers on Deputation to Federal Government

Schools, Islamabad from Provincial Education Departments.
The undersigned is directed to refer the Ministry of Education's O.M. No.D-

1281/98-CEI, dated 12th October, 1998, on the above subject and to request that
the following information/ documents may be supplied to this Division:---
(i) A copy of formal concurrence of the Provincial Governments to the permanent

absorption of its employees in the Federal Government.
(ii) A certificate/confirmation to the effect that husbands of the lady teachers

proposed to be absorbed are working under the Federal Government at Islamabad.
(2) The proposal in regard to absorption of TUGT's. and MTT's who do not carry
the pay scales at par with these of the Federal Government for similar posts,
cannot be accepted because under Rule 9 of the Civil Servants (Appointment,
Promotion and Transfer) Rules, 1973, appointment by transfer is permissible only
from persons servings in the same Basic Pay Scale. Ministry of Education is
requested to furnish its comments, if any, on this point.
(Sd.) (Muhammad Arshad)

Section Officer
(3) When the above petitions came up for hearing before this Court on 26-11-
1998, Mr. Abdul Karim Khan Kundi, Advocate Supreme Court, has pointed out
that Provincial Governments are not accepting the petitioners as their employees.
We had issued notices to the learned Deputy Attorney-General, Advocate-
Generals of the Provinces. In response to the above notice Maulvi Anwarul Haq,
Dy. A.-G., Mr. M. Sardar Khan, A.-G. N. -W. F. P., and Mr. Muhammad Zaman,
Advocate Supreme Court representing A.-G. Punjab, are present. They state that
the petitioners have still lien over their respective posts in the Provinces.
(4) In our view, it will be appropriate if no further action is taken against the
petitioners for a period of three months. In the meantime, if some action is taken
pursuant upon above OM the same may be implemented, otherwise they will be
repatriated to their respective Provinces. Petitions are disposed in the above
terms."
2. Vide Office Order, dated 3-10-2003 the petitioner was repatriated to her parent
Department and relieved from duty with immediate effect by the Federal Directorate of
Education, Government of Pakistan. The contents of the Office Order read as under:---
Consequent upon the decision of Supreme Court on Civil Petition No.984 etc.
dated 4-12-1998 and amended in Recruitment rules for absorption/appointment
through transfer Mrs. Hamida Begum, PTI, (Junior) (Deputationist) Federal
Government Girls Primary School, Humak (FA), Islamabad is hereby repatriated
to her parent department and relieved from duty with immediate effect.
(2) As she has been on deputation since 2-6-1994 i.e. more than 9 years and she
could not be retained/absorbed for further period as she is not qualified according
to the recruitment rules i.e. FA/FSc IInd Division with junior diploma in physical
Education.
(3) This is issued with the approval of the Competent Authority."
Page No. 2 of 4
3. Petitioner Hameeda Begum was working as Physical Education Teacher (PET) in the
Government Girls High School, Nakot, District Mansehra and was taken on deputation
from N.-W.F.P. as PTI for a period of 3 years. She joined Federal Directorate of
Education on 2-6-1994. On completion of her tenure she was repatriated to her parent
department on 22-5-1997. Thereupon, she challenged her repatriation order in writ
petition before the learned Lahore High Court, Rawalpindi Bench, Rawalpindi. She was
allowed to continue her duty in the light of the stay order issued by the said learned
Court. Eventually, her Writ Petition No.3093 of 2003 was dismissed vide judgment, dated
14-5-1997 whereafter, her repatriation order with effect from 20-7-1998 were again
issued which was unsuccessfully, assailed in I.C.A., before the learned Division Bench of
.the Lahore High Court. After the dismissal of her I.C.A. as above-noted, the petitioner
along with others filed civil petitions before this Court which were disposed of vide
order, dated 4-12-1998. Subsequently, vide Office Order dated 3-10-2003 the Federal
Directorate of Education, Government of Pakistan repatriated the petitioner to her parent
department on the ground that she remained on deputation for a period of 9 years could
not be retained/absorbed for further period as she is not qualified according to the
recruitment rules i.e. FA/FSc 2nd Division with Junior Diploma in Physical Education.
This order was challenged in Writ Petition No.3093 of 2003 by the petitioner before the
Lahore High Court, Rawalpindi Bench Rawalpindi dismissed by the learned Single Judge
in the Chambers on 5-4-2004. The petitioner feeling dissatisfied with the dismissal of her
writ petition filed I.C.A. No.93 of 2004, which met the same fate vide impugned
judgment dated 11-11-2008 passed by the learned Division Bench of the Islamabad High
Court, Islamabad. The operating part of the impugned judgment is reproduced
hereinbelow:---
"(9) Appellant petitioner's Constitution Petition No.3093 of 2003 was dismissed

by the learned Judge in Chamber of Lahore High Court, Rawalpindi Bench,
Rawalpindi, C.P.L.A. was filed before the Honourable Supreme. Court of
Pakistan, which was disposed of on 4-12-1998. Appellant lacks requisite
qualification and was not absorbed by respondent on that count. Appellant availed
the remedy through constitution petition by invoking the jurisdiction under Article
199 of the Constitution of Islamic Republic of Pakistan which was dismissed and
the decision was affirmed by honourable Supreme Court of Pakistan. After the
decision of honourable Supreme Court of Pakistan, appellant cannot seek the
remedy once again on the same cause of action. The constitutional petition is not
maintainable on this score. Even otherwise the appellant has failed to establish her
case, as she does not possess requisite qualification for acclaimed absorption. The
absorption or extension of period in deputation falls within the domain of
departmental authority, which has exercised its discretionary power in accordance
with law. No interference is called for in the judgment passed by the Judge in
Chamber. This appeal being meritless is dismissed."
4. The earlier civil petition on the same subject was disposed of by this Court vide order
dated 4-12-1998 whereafter the petitioner filed complaint with the Wafaqi Mohtasib
where her claim was that she may not be repatriated unless the rules for permanent
absorption of deputationists are not approved by the Establishment Division Vide O.M.
No.10/184/R-5 dated 26-6-2003 the Establishment Division accorded approval for the
amendment of the recruitment rules.
5. The learned counsel for the petitioner and Mr. Shah Khawar, D.A.-G. for respondents
Nos.1 to 4 have been heard. The learned counsel for the petitioner contended that during
the pendency of the I.C.A. the petitioner was successful in obtaining Master Degree in
Physical Education in the year 2005 which stand on a high pedestal being a higher
qualification than the Junior Diploma in Physical Education. As regards the second
objection of the pay scale of PET remained uncontested as the N.-W.F.P. Government
upgraded the post from BS-12 to BS-14 for the holder of BA degrees. Accordingly, the
petitioner was placed to the upgraded post with effect from 11-1-2001 and petitioner's
pay scale .thus, became equivalent to the scale of PTI in the Federal Government and
besides a number of employees have been absorbed in the Federal Government,
Education Department but discrimination has been meted out to the petitioner.
Page No. 3 of 4
The learned counsel when confronted to the operating part of the order passed by the-
Court on 4-12-1998 submitted that it was the duty of the Government to have issued
NOC with regard to the permanent absorption of the service of the petitioner in the
Federal Government Education Department or at least reference for the purpose to have
been made to the Provincial Government by the Education Department, Government of
Pakistan. The learned counsel further contended that the petitioner still holds her lien of
service in her parent department of N.-W.F.P., unless NOC is issued by the Provincial
Government.
6. On the other hand, the learned D.A.G. argued that subsequent to the decision of this
Court, after due consideration and examining the case of the petitioner vide Office Order
dated 3-10-2003, she was repatriated to her parent department and relieved from duty as
she was deputationist for a period of more than 9 years with the Federal Government and
could not be absorbed for being not qualified as per recruitment rules i.e. F.A./F.Sc. 2nd
Division with Junior Diploma in Physical Education. According to the D.A.-G. since
action has been taken with regard to the repatriation of the petitioner to her parent
department in the light of the O.M. reproduced in the order dated 4-12-1998 passed by
this Court, therefore, in terms of the said order and the repatriation order passed on 3-10-
2003 needs be acted upon as the formal concurrence of the Provincial Government for the
permanent absorption of the petitioner in the Federal Government has not been given.
7. Notwithstanding the ground with regard to the improvement of qualifications of the

petitioner and the question of her entitlement to be permanently absorbed in the Federal
Government under the rules for time being in force; admittedly, the petitioner who holds
lein in her parent department of the Province could not be absorbed permanently in the
Education. Department, Government of Pakistan for want of concurrence of the
Provincial Government nor such a concurrence pre-requisite for absorption as claimed
was conveyed to the Federal Government which till date has not been done. Vide Office
Order, dated 3-10-2003 the petitioner was repatriated to her parent department with a
copy thereof forwarded to the Director Public Instructions, Peshawar, the District
Education Officer/the Executive District Officer, Mansehra, and the District Accounts
Officer, Mansehra to which no response was shown by the parent department of the
petitioner nor concurrence of Provincial Government for permanent absorption of the
petitioner in Education Department of the Federal Government was conveyed in absence
whereof, obviously the petitioner's service could not be absorbed in the concerned
department of the Federal Government even if she holds the requisite qualifications and
eligibility for such absorption. The petitioner also did not approach to the Provincial
Government for the purpose for grant of NOC and consequently, in terms of the order
passed by this Court on 4-12-1998 reproduced hereinabove the Office Order issued by the
Federal Government for repatriation of the petitioner holds the field. Hence, the
impugned judgment in our considered opinion is not open to any exception.
8. Thus, for the foregoing reasons this civil petition having no substance is dismissed.
Leave refused.
M.H./H-9/SC Petition dismissed.
Page No. 4 of 4
2010 P L C (C.S.) 804
Before Iftikhar Muhammad Chaudhry, C.J Ch. Ijaz Ahmed and Khalil-ur-Rehman
Ramday, JJ
CHAIRMAN, CENTRAL BOARD OF REVENUE and others
Versus
NAWAB KHAN and others
Civil Appeals No. 537 and 538 of 2006, decided on 16th March, 2010.
(On appeal from the judgment dated 7-2-2004 passed by the Federal Service
Tribunal, Islamabad, in Appeal No. 660(R)(C.S.) of 2002).
(a) Fundamental Rules---
----R. 22(a)---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted

by Supreme Court to consider; whether civil servant was entitled to have protection of
previous service in another organization for the purposes of fixation and counting of
previous service for pension.
(b) Constitution o f Pakistan (1973)---
----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of
the State by virtue of Arts. 189 and 190 of the Constitution.
(c) Fundamental Rules---
----R. 22(a)---Hand Book for Drawing and Disbursing Officers, Chapter, IX, R. 9.6(v)---
Constitution of Pakistan (1973), Art.212(2) & (3)---Pay and pensionary benefits---
Previous service, counting of---Absence of lien on previous post---Findings of fact---
Interference by Supreme Court---Scope---Appellant was appointed by another
government organization and his grievance was that his previous service in earlier
government organization was to be counted for fixation of pay and pensionary benefits---
Service Tribunal partially allowed the appeal and did not grant any protection of his pay
drawn during previous appointment---Validity---Finding of fact recorded by Service
Tribunal was in consonance with rules on the subject and law laid down by Supreme
Court---Service Tribunal had rightly refused second relief to appellant in terms of R.22(a)
of Fundamental Rules---Parties failed to point out any infirmity or illegality in the
judgment passed by Service Tribunal and no question of public importance as
contemplated under Art.212(2) of the Constitution was raised---Finding of Service
Tribunal was finding of fact and could not call for any interference by Supreme Court
while exercising power under Art.212(3) of the Constitution---Constitutional jurisdiction
was always discretionary in character as the Service Tribunal had decided the case within
the parameters and rules on the subject and law laid down by Supreme Court, therefore,
Supreme Court declined to exercise its discretion under Art.212(3) of the Constitution in
favour of appellants---Appeal was dismissed.
Nafees Ahmad's case 2000 SCMR 1864 and Ch. Muhammad Azim's case 1991
SCMR 255 rel.
Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record (in
C.A. No.537 of 2006) and Hafiz S.A.Rehman, Senior Advocate Supreme Court (in
C.A. 538 of 2006) for Appellants.
Hafiz S.A. Rehman, Senior Advocate Supreme Court (in C.A. No.537 of 2006), Dil
Muhammad Khan Alizai, D.A. G. and Raja Abdul Ghafoor, Advocate-on-Record (in
C.A. No.538 of 2006) for Respondents.
Page No. 1 of 3
Date of hearing: 16th March 2010.
JUDGMENT
CH. IJAZ AHMED, J.---We intend to decide the captioned appeals by one
consolidated judgment having similar facts arising out of the common impugned
judgment of the Service Tribunal dated 7-2-2004.
2. Necessary facts out of which the aforesaid appeals arise are that Nawab Khan,
respondent in C.A. No.537 of 2006 and also appellant in Civil Appeal No. 538 of 2006,
was appointed as Deputy Manager in the Federal Government approved pay scale EPS-
III which is equal to BPS-18 in the Pakistan Machine Tool Factory Limited, Karachi, an
autonomous body under the State Engineering Corporation, Ministry of Industries and
Production, Government of Pakistan, on 20-5-1984. His services were transferred to the
Head Office i.e. State Engineering Corporation, Islamabad in March, 1989. He was
promoted to the post of Manage in March, 1991 in EPS-IV which is equal to BPS-19.
Thereafter his services were transferred to the Heavy Electrical Complex, Haripur, in
July, 1996. An advertisement was published for the post of Cost Accountant BPS-19 in
Sales Tax Department of CBR. In response to the said advertisement he submitted an
application for the same allegedly through proper channel. He was selected by xhe
Selection Board. Appointment letter was issued by the Chairman CBR, Islamabad. Copy
of the appointment letter was also endorsed by CBR to the Managing Director/Chairman,
Heavy Electrical Complex, Haripur with the request to relieve him for joining CBR.
Subsequently he was relieved on 23-1-1999 and (24-1-1999 being Sunday) he joined the
CBR on 25-1-1999 without any service break. He had been asking for counting of his
previous service of 14 years and 8 months i.e. from 20-5-1984 to 24-1-1999 for the
purpose of pcnsionary financial benefits as well as pay protection to the competent
authority of the CBR. CBR intimated him vide letter dated 17-4-2002 that the matter was
referred to the Finance Division but his request was not accepted. He being aggrieved
filed departmental appeal/representation before the competent authority on 4-5-2002
which was dismissed vide order dated 15-6-2002 which was conveyed to him on 21-6-
2002. He being aggrieved filed an Appeal No.660(R)(C.S.) of 2002 before the Federal
Service Tribunal, Islamabad. The learned Service Tribunal partly accepted his appeal vide
impugned judgment dated 7-2-2004. The Chairman CBR and others and Nawab Khan
being aggrieved filed C.Ps. Nos.840 of 2004 and 881 of 2004 which were fixed before
this Court on 4-4-2006 and leave was granted in the following terms:--
"After hearing the learned counsel for the petitioners at length, we grant leave to
appeal to consider, inter alia, the question whether the respondent, Nawab Khan
was entitled to have the protection of his previous service rendered in the State
Engineering Corporation for the purposes of pay fixation and counting of
previous service for pension...."
3. The learned Deputy Attorney General submits that Nawab Khan had submitted
application directly in response to the advertisement to the office of the Chairman CBR.
He had already completed requisite length of service in the autonomous body and had
resigned from the said organization, therefore, the learned Service Tribunal erred in law
to accept his appeal to the extent of counting his previous service for the purpose of
financial benefits in the autonomous body from 20-5-1984 to 24-1-1999.
4. The learned counsel of Nawab Khan has supported the impugned judgment and further
urged that the learned Service Tribunal had granted one relief to him as prayed for in his
appeal before the Service Tribunal but the second relief was denied without application of
mind.
the parties and perused the record. The learned Service Tribunal had decided the
controversy between the parties after analyzing the documents on record in accordance
with law on the subject `Pensionary Rules' of `Hand Book for Drawing and Disbursing
Officers' Chapter IX, Rule 9.6(v) read with CSR 418(b). The said provision of law had
already been interpreted by this court in Nafees Ahmad's case 2000 SCMR 1864. The
Page No. 2 of 3
relevant observation is as follows: -
"The respondent authorities are bound to follow the law in relation to the above
facts of the claim of the appellant i.e. (1) protection of his pay and (2) counting of
his period of service with S.B.P. towards pensionary benefits. Failure on the part
of the Tribunal to act in accordance with the law on the subject cannot but be
reversed with a direction to the respondent to fix the salary of the appellant at
Rs.2,530 commencing vide order, dated 14-11-1999 and July, 1989. Order
accordingly."
6. The operative part of the impugned judgment is reproduced hereunder:-
"We agree with the learned counsel for the appellant that the case being discussed
in the above judgment is identical with the case in hand inasmuch as (i) the
appellant in the present case has put in 14 years and 8 months service in the
autonomous body, (ii) he had also resigned his previous job before taking up
his new appointment in the Government (iii) his service in the autonomous
body is to be treated as effective service on his appointment in the
Government and (iv) that the appellant is prepared to pay his pension
contribution out of his own resources in case his former department shows any
reluctance to pay the same. In our view, the judgment dated 13-5-1999
supports the case of the appellant whole hog………Additionally
FR 22(a) bars protection of pay to an employee who does not hold a lien on
his previous permanent post. The appellant resigned his post as Manager
HEC, before joining as Cost Accountant in the CBR and, therefore, obviously
his lien in his formal post stood abolished, debarring him from protection of
his pay drawn as Manager HEC"
7. The learned Service Tribunal had decided the case in terms of the dictum laid
down by this court in the aforesaid judgment. It is settled principle of law that
judgment of this court is binding on each and every organ of the State by virtue of
Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan. The
learned Service Tribunal had rendered finding of fact after appreciation of evidence
on record. Finding of fact recorded by the Service Tribunal is also in consonance
with the aforesaid rules on the subject and law laid down by this court. Similarly the
learned Service Tribunal had rightly refused the second relief to Nawab Khan in
terms of fundamental rules 22(a). Both the learned counsel had failed to point out
any infirmity or illegality in the impugned judgment. Even otherwise appellants had
failed to raise any question of public importance as contemplated under Article
212(2) of the Constitution of Islamic Republic of Pakistan. It is settled principle of
law that finding of the Service Tribunal being finding of fact cannot call for any
interference by this court while exercising power under Article 212(3) of the
Constitution of Islamic Republic of Pakistan as law laid down by this court in Ch.
Muhammad Azim's case 1991 SCMR 255. It is also settled principle of law that
constitutional jurisdiction is always discretionary in character as the Service
Tribunal had decided the case within the parameters and rules on the subject and law
laid down by this court, therefore, we are not inclined to exercise our discretion
under Article 212(3) of the Constitution of the Islamic Republic of Pakistan in
favour of the appellants.
8. In view of what has been discussed above these appeals have no merit and the
same are dismissed.
M.H./C-5/SC Appeal dismissed.
Page No. 3 of 3
2010 P L C (C.S.) 451
Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ
IFFAT JABEEN
Versus
DISTRICT EDUCATION OFFICER (M.E.E.) LAHORE and another
Civil Appeal No.592 of 2006, decided on 2nd October, 2009.
(On Appeal from the judgment, dated 22-7-2005 passed by the Punjab Service Tribunal,
Lahore, in Appeal No.2396 of 2003).
(a) Government Servants ( E f f i c i e n c y and Discipline) Rules, 1973---
---Rr. 5 & 6---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was

granted by Supreme Court to consider the contention of petitioner that she was graduate
at the time of her appointment and thereafter, she further improved her educational
qualification as M.A., B-Ed and C.T. during her service and order passed by authorities
of removal of petitioner from service was not sustainable at law inasmuch as there was
no concealment or misrepresentation of any material fact on the part of her who had
rendered satisfactory service before removal from service and further contended that
quantum of punishment did not commensurate the nature of charge.
(b) Government Servants (Efficiency and Discipline) Rules, 1973---
----Rr. 5 & 6---Removal from service---Imposing of major penalty---Concealing o f

facts---Civil servant was appointed as untrained teacher but she received salary of regular
teacher---Authorities removed the civil servant from service on the allegation o f
securing service by playing fraud with authorities---Validity---During her service, civil
servant improved her qualification as M.A., B-Ed and C.T. and also gained experience as
a teacher for ten years---Service Tribunal decided the case in violation o f dictum laid
down by Supreme Court and even without perusing record after application o f mind, as
the same was a condition precedent for passing a decision---Supreme Court set aside the
judgment passed by Service Tribunal and reinstated the civil servant in service without
back-benefits in accordance with law, as she did not perform any duty---Appeal was
allowed.
Zulfiqar Ali's case 2006 SCMR 678; Abdul Waheed's case 2004 SCMR 303; Secretary to
Government of N.-W.F.P.'s case 1996 SCMR 413; Abdul Hafeez Abbasi's case 2002
SCMR 1034; G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case PLD
1970 SC 173 rel.
(c) Constitution of Pakistan (1973)---
----Arts. 189 & 190---Judgment o f Supreme Court is binding on each and every organ
o f State.
(d) Administration of justice---
----Application o f correct law---Improper advice o f counsel---Effect---Judge must wear

all laws o f country on the sleeves o f his robe and failure o f counsel as to properly
advice him is not a complete excuse in the matter.
Muhammad Sarwar's case PLD 1969 SC 278 rel.
Mian Mahmood Hussain, Advocate Supreme Court for Appellant.
Page No. 1 of 3
Saeed Yousaf Khan, Additional Advocate-General Punjab, Ch. Muhammad Aslam, Law
officer/Assist ant Education Officer, D.E.O. Office, Lahore for Respondents.
Date of hearing: 2nd October, 2009.
JUDGMENT
CH. IJAZ AHMED, J.--- Appellant filed C.P. No.2019 of 2005 wherein appellant has
sought leave to appeal against the judgment of the Punjab Service Tribunal, Lahore dated
22-7-2005 wherein order of her removal by the competent authority and rejection of her
representation by the appellate authority were not set aside. The petition was fixed before
this Court on 21-3-2006 and leave was granted in the following terms : ---
"The learned Counsel for the petitioner argued that the petitioner was graduate at
the time of her appointment. Thereafter, she further improved her educational
qualification as M.A., B-Ed. and C.T. during her service. The order dated 4-7-
2003 passed by Respondent No.1 of the removal of the petitioner from service
was not sustainable at law inasmuch as there was no concealment or
misrepresentation of any material facts on the part of the petitioner who had
rendered satisfactory service before her removal from service on 4-7-2003. It was
lastly submitted that the quantum of punishment did not commensurate the nature
of the charge.
Leave to appeal is granted to consider, inter alia, the above and other submissions
of the learned counsel."
2. Learned counsel for the appellant submits that impugned judgment is not sustainable in
the eyes of law in view of the inquiry report submitted by the Inquiry Officer against her.
Inquiry was conducted in violation of mandatory provisions of Efficiency and
Disciplinary Rules. The appellant was inducted in the service by the competent authority
in accordance with the law as is evident from the inquiry report and she was removed
from service after 10 years. This fact was not considered by Service Tribunal in the
impugned judgment.
3. Learned Law Officer submitted that appellant secured her appointment by playing
fraud with the Department as her appointment letter did not exist in their record. He has
vehemently supported the impugned judgment.
the parties and perused the record. It is better and appropriate to reproduce the operative
part of the impugned order dated 4-7-2003 wherein the appellant was removed from
service.
"Whereas Mst. Raheela Arjumand, SST/Headmistress, Government Shah Din

Aslam Middle School Shad Bagh, Lahore was appointed as Enquiry Officer. The
Enquiry Officer after conducting the enquiry sent her report with the
recommendation that Service Record of the teacher found bogus, i.e. she was
appointed PTC, regular by Mirza Muhammad Shafi the then Deputy District
Education Officer (M) Lahore City vide No.1020/E-I dated 10-5-1993 while she
was untrained but not verified and she received salary as regular teacher. The
appointment orders are not verified by the Deputy District Education Officer
concerned, domicile was not available.
5. Mere reading of the aforesaid order clearly envisages that appellant was
appointed as untrained teacher but she received salary for regular teacher. During
her service she had improved her qualification as M.A., B-Ed. and C.T. and also
gained experience as a teacher for 10 years. The impugned judgment is not in
consonance with the law laid down by this Court in various pronouncements. See:---
(i) Zulfiqar Ali's case 2006 SCMR 678, (ii) Abdul Waheed's case 2004 SCMR
303, (iii) Secretary to Government of N.-W.F.P.'s case 1996 SCMR 413, (iv)
Abdul Hafeea Abbasi's case 2002 SCMR 1034.
Page No. 2 of 3
The relevant observation from the Abdul Hafeez Abbasi's case is as follows:---
"We have noted in number of cases that Departmental Authorities do show

haste at the time of making such appointments when directives are issued to
them by the persons who are in the helm of affairs without daring to point out
to them that the directions are not implementable being contrary to law as
well prevalent Rules and Regulations. In fact such obedience is demonstrated
by the concerned officers of the Departments to please the Authorities
governing the country just to earn their time being pleasures but on the
change of regime they do show speed in undoing illegal actions which they
themselves have accomplished in the previous regime and due to their such
illegal acts the employees who were appointed suffer badly without any fault
on their part and then even nobody bothers for their future career. Therefore,
we are of the opinion that in such situation besides proceedings against the
beneficiaries of so-called illegal appointments the officers who were
responsible for implementing illegal directives should also be held equally
responsible and severe action should be taken against them so in future it
may serve as deterrent for other like-minded persons. This Court in an identical
case declined to grant leave to appeal in the case of Secretary to Government
of N.-W.F.P. 1996 SCMR 413 and observed that it is disturbing to note that in
this case petitioner No.2 had himself been guilty of making irregular
appointment on what has been described "purely temporary basis". The
petitioners have now turned around and terminated his service due to
irregularity and violation of rule 10(2) (ibid). The premise, to say the least, is
utterly untenable. The case of the petitioners was not that the respondent
lacked requisite qualification. The petitioners themselves appointed him on
temporary basis in violation of the rules for reasons best known to them.
Now they cannot be allowed to take benefit of their lapses in order to
terminate the services of the respondent merely because they have
themselves committed irregularity in violating the procedure governing the
appointments."
6. It is settled proposition of law that judgment of this Court is binding on each and
every organ of the State by virtue of Articles 189-190 of the Constitution. It is
settled law that Judge must wear all the laws of the country on the sleeve of his robe
and failure of the counsel as to properly advise him is not a complete excuse in the
matter as law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC
278.
7. The learned Service Tribunal had decided the case in violation of the dictum laid
down by this Court in the aforesaid judgments and even without perusing the record
after application of mind as evident from the operative part of the order of
department dated 4-7-2003 reproduced herein above. Mere reading of the impugned
judgment, it is crystal clear that the learned Service Tribunal had decided the case
without application of mind which is condition precedent in view of law laid down
by this Court in G.M. Sikdar's case PLD 1970 SC 158 and Mollah Ejahar Ali's case
PLD 1970 SC 173.
8. In view of what has been discussed above this appeal is accepted and the
impugned judgment of the Service Tribunal is set aside and the respondents are
directed to reinstate the appellant without back benefit of any salary as she did not
perform any duties. However, she is entitled other benefits in accordance with law,
if any.
M.H./I-21/SC Appeal allowed.
Page No. 3 of 3
2010 P L C (C.S.) 920
[Karachi High Court]
Before Munib Ahmed Khan, Sajjad Ali Shah and Khalid Ali Z. Qazi, JJ
Dr. MUHAMMAD ZUBAIR YOUSFANI
Versus
SECRETARY, REVENUE DIVISION/CHAIRMAN, CENTRAL BOARD OF

REVENUE, ISLAMABAD and 6 others
Constitutional Petitions Nos.D-753, 1332, 1412, 1605, 1673, 1686, 1709, 1743,
1747, 1759, 1767, 1800, 1852, 1894, 1895, 1896, 1897, 1930, 1946, 1948, 1956,
1957, 1971, 2014, 2073, 2118, 2123. 2124, 2152, 2333, 2411 of 2006; C.Ps. Nos. D-
95, 274, 332, 339, 340, 405, 473, 498, 636, 537, 539, 563, 574, 606, 617, 618, 619,
709, 740, 754, 813, 815, 824, 865, 1086, 1320, 1331, 1505, 1772, 1817, 1905, 1926,
1943, 2012, 2013, 2145, 2307, 2464, 2564, of 2007 and C.P. No.D-259 of 2008,
decided on 30th March, 2009.
Service Tribunals Act (LXX of 1973)---
----S.2-A---Constitution of Pakistan (1973), Arts.189, 190 & 199---Constitutional

petition---Abating of proceedings---Judgment passed by Supreme Court---
Implementation---Plea raised by petitioners was that after passing of judgment by
Supreme Court whether appeals / proceedings filed by petitioners before Service
Tribunal had abated automatically or judicial order was needed---Validity---Keeping
in view the difficulties pointed out by petitioners, High Court allowed thirty days'
time to petitioners to approach Service Tribunal for making application for judicial
order on their appeals---High Court directed that present petitions were considered to
be pending and would be taken up after the decision from Service Tribunal was
filed---Order accordingly.
2007 PLC (C.S.) 1046; 2008 SCMR 402; PLD 2006 SC 602; SBLR 2008 Tribunal
133 and 2009 PLC (C.S.) 497 ref.
Khalid Javed Khan, Farogh Naseem, Asim Iqbal, Moin Azhar Siddiqui, Manzoor
Ahmed, Rana Ikramullah, Qazi Abdul Hameed, Khalid Javed, M.M. Tariq, Khalid
Imran, Latif Saghar, R.F. Virjee, Jaffer Hussain, Niaz Ahmed, Masood Mukhtar
Naqvi, Latifur Rehman Serwary, Muhammad Yaqoob, Shahkeel Ahmed, Mansoor-
ul-Haq Solangi, Sohail Zafar Bhatti, Syed Toqeer Hassan, Islam Hussain,
Muhamamd Tasleem, Muhammad Asif Khan, Khilji Bilal, Muhammad Azam Khan,
Ghulam QadirJatoi, Muhammad Junaid Farooqui, Dilawar Hussain, Ainuddin Khan,
Advocates for the Parties.
ORDER
MUNIB AHMED KHAN, J.---This Full Bench has been constituted to determine
following questions:
(i) Whether the employees/workers, proceeded against and punished under

the Removal from Service (Special Powers) Ordinance, 2000 (as amended)
can still invoke the jurisdiction of Federal Service Tribunal or in view of
judgment of a Full Bench of this honourable Court reported as 2007 PLC
(C.S.) 1046, remedy, if any, is by way of Constitution petitions or Civil Suits;
(ii) What is the effect of judgment of honourable Supreme Court reported as

2008 SCMR 402 on petitions/proceedings pending since 2006/2007 having
filed the same on the basis of judgments reported as PLD 2006 SC 602
and/or whether abatment of Appeals/proceedings had been automatic
(without any formal orders) or whether a judicial order still would be needed
Page No. 1 of 3
the Tribunal.
Learned counsel appearing for the parties state that the question No.1 is already
pending before honourable Supreme Court in some petitions, therefore, this Court
and the parties as well may wait for a decision in this respect. We have also seen a
judgment of the Federal Service Tribunal reported as SBLR 2008 Tribunal 133 as
well as an order passed by the honourable Supreme Court in different Civil Appeals
including Civil Appeal No.1555 of 2006. The SBLR case shows that the Tribunal
has started taking jurisdiction in respect to matters touching question No.1. In the
reported judgment, the Tribunal has specifically mentioned in para 19 of its
judgment as follows:
"19. The jurisdiction of this Tribunal shall however, continue to be available

to a person aggrieved of an order under the Removal from Service (Special
Powers) Ordinance, 2000 as provided under sections 10 and 11 ibid. The
reason for this is not far to seek as the RSO, 2000 does not use the term "civil
servant" but only refers to a person in Government Service or a person in
corporation service and allows any such persons if aggrieved of an order
under the said Ordinance, to approach this Tribunal in accordance with law."
The observation of the honourable Supreme Court in this context in the relevant
matter is as under:--
"Both the sides have admitted that after passing the impugned judgments, the
Federal Service Tribunal, Islamabad had taken a somewhat different view by
entertaining the service appeals, involving the department penalties imposed
under the provisions of Removal from Service (Special Powers) Ordinance
XVII of 2000.
In this view of the matter, these appeals are allowed. Impugned judgments
passed by the Federal Service Tribunal, Islamabad are set aside.
Consequently, the appeals before the Service Tribunal in these cases shall be
deemed to be pending for a decision afresh, in accordance with law. No order
as to costs."
Anyhow, keeping in view the statement of learned counsel that the honourable
Supreme Court is already considering the question No.1, therefore this question to
be kept in waiting till the order by the honourable Supreme Court in this respect.
Question No.2.
As far as question No.2 is concerned, it is in respect to the abatement of the appeals

in terms of para 108(3) in the case reported as Muhammad Mubeen-us-Salam and
others v. Federation of Pakistan PLD 2006 SC 602, which is as follows:
108. The threadbare discussion on the subject persuades us to hold:
(1) ………………
(2) ………………
(3) The cases of the employees under section 2-A, STA, 1973, who do not fall
within the definition of civil servant as defined in section 2(1)(b) of the CSA,
shall have no remedy before the Service Tribunal, functioning under Article
212 of the Constitution and they would be free to avail appropriate remedy.
It has been observed that after the judgment of Mubeen-us-Salam's case, certain
appeals were abated before the FST and in some of these appeals Registrar of the
Tribunal communicated stereo type order which was challenged before the
honourable Supreme Court, hence a judgment reported as 2008 SCMR 402 was
passed with the following observations:--
Page No. 2 of 3
"We are not inclined to agree with the submission of learned counsel for the
respondent because separate order is required to be passed in every case by
the Service Tribunal after providing opportunity to the parties keeping in view
the observations made by the Court in the judgment relied upon."
Following the above order of the honourable Supreme Court, the Tribunal has started
passing judicial order with the signature of Presiding Officer of the Tribunal.
The learned counsel submit that there are several appeals which are not
maintainable before Service Tribunal keeping in view Mubeen-us-Salam's case but if
the appeals are dismissed on the ground that judicial order from FST is required or
other directions are issued then the appellants will suffer on account of limitation
whereas this Court has held in 2009 PLC (C.S.) 497 that no separate order by the
Tribunal is necessary and the directions in para. 108(3) in Mubeen-us-Salam's case
will be suffice.
Against the above High Court reported judgment 2009 PLC (C.S.) 497, honourable
Supreme Court has passed order in C.P.No.1467 of 2008, whereby the judgment of
the High Court has been maintained.
Keeping in view the difficulties which are being pointed out as well as pendency of
the petitions and above authorities, we are of the view that thirty days' time from
today be given to the petitioners to approach the Tribunal for making an application
for judicial order on their appeals. Order accordingly. The petitioners to file such
order in their petitions after same is passed by FST while the petitions will be
considered to be pending and will be taken up after the decision from the Tribunal is
filed. It is also expected from the FST that the issue will be expedited and orders
will be passed as early as possible.
Some counsel have pointed out that there are cases which are not affected by the
above question and they have wrongly been fixed. It is ordered that cases which are
not subject-matter of the above question be placed before the relevant Benches as
they were.
Both the referred questions are answered/decided as above.
M.H./M-80/K Order accordingly.
Page No. 3 of 3
2010 S C M R 1399
B ef ore Iftikhar Muhammad Chaudhry, C.J Ch. Ijaz Ahmed and Khalil-ur-
Rehman Ramday, JJ
CHAIRMAN, CENTRAL BOARD OF REVENUE and others---Appellants
Versus
NAWAB KHAN and others---Respondents
Civil Appeals No. 537 and 538 of 2006, decided on 16th March, 2010.
(On appeal from the judgment dated 7-2-2004 passed by the Federal Service Tribunal,
Islamabad, in Appeal No. 660(R)(C.S.) of 2002).
(a) Fundamental Rules---
----R. 22(a)---Constitution of Pakistan (1973), Art.212(3)---Leave to appeal was granted

by Supreme Court to consider; whether civil servant was entitled to have protection of
previous service in another organization for the purposes of fixation and counting of
previous service for pension.
(b) Constitution of Pakistan (1973)---
----Arts. 189 & 190---Judgment of Supreme Court is binding on each and every organ of
the State by virtue of Arts. 189 and 190 of the Constitution.
(c) Fundamental Rules---
----R. 22(a)---Hand Book for Drawing and Disbursing Officers, Chapter, IX, R. 9.6(v)---
Constitution of Pakistan (1973), Art.212(2) & (3)---Pay and pensionary benefits---
Previous service, counting of--Absence of lien on previous post---Findings of fact---
Interference by Supreme Court---Scope---Appellant was appointed by another
government organization and his grievance was that his previous service in earlier
government organization was to be counted for fixation of pay and pensionary benefits---
Service Tribunal partially allowed the appeal and did not grant any protection of his pay
drawn during previous appointment---Validity---Finding of fact recorded by Service
Tribunal was in consonance with rules on the subject and law laid down by Supreme
Court---Service Tribunal had rightly refused second relief to appellant in terms of R.22(a)
of Fundamental Rules---Parties failed to point out any infirmity or illegality in the
judgment passed by Service Tribunal and no question of public importance as
contemplated under Art.212(2) of the Constitution was raised---Finding of Service
Tribunal was finding of fact and could not call for any interference by Supreme Court
while exercising power under Art.212(3) of the Constitution---Constitutional jurisdiction
was always discretionary in character as the Service Tribunal had decided the case within
the parameters and rules on the subject and law laid down by Supreme Court, therefore,
Supreme Court declined to exercise its discretion under Art.212(3) of the Constitution in
favour of appellants---Appeal was dismissed.
Nafees Ahmad's case 2000 SCMR 1864 and Ch. Muhammad Azim's case 1991 SCMR
255 rel.
Dil Muhammad Khan Alizai, D.A.-G., Raja Abdul Ghafoor, Advocate-on-Record (in
C.A. No.537 of 2006) and Hafiz S.A. Rehman, Senior Advocate Supreme Court (in C.A.
538 of 2006) for Appellants.
Hafiz S.A. Rehmand, Senior Advocate Supreme Court (in C.A. No.537 of 2006), Dil
Muhammad Khan Alizai, D.A.-G. and Raja Abdul Ghafoor, Advocate-on-Record (in C.A.
No.538 of 2006) for Respondents.
Page No. 1 of 3
Date of hearing: 16th March 2010.
JUDGMENT
CH. IJAZ AHMED, J.---We intend to decide the captioned appeals by one
consolidated judgment having similar facts arising out of the common impugned
judgment of the Service Tribunal dated 7-2-2004.
2. Necessary facts out of which the aforesaid appeals arise are that Nawab Khan,
respondent in C.A. No.537 of 2006 and also appellant in Civil Appeal No. 538 of 2006,
was appointed as Deputy Manager in the Federal Government approved pay scale EPS-
III which is equal to BPS-18 in the Pakistan Machine Tool Factory Limited, Karachi, an
autonomous body under the State Engineering Corporation, Ministry of Industries and
Production, Government of Pakistan, on 20-5-1984. His services were transferred to the
Head Office i.e. State Engineering Corporation, Islamabad in March, 1989. He was
promoted to the post of Manage in March, 1991 in EPS-IV which is equal to BPS-19.
Thereafter his services were transferred to the Heavy Electrical Complex, Haripur, in
July, 1996. An advertisement was published for the post of Cost Accountant BPS-19 in
Sales Tax Department of CBR. In response to the said advertisement he submitted an
application for the same allegedly through proper channel. He was selected by the
Selection Board. Appointment letter was issued by the Chairman CBR, Islamabad. Copy
of the appointment letter was also endorsed by CBR to the Managing Director/Chairman,
Heavy Electrical Complex, Haripur with the request to relieve him for joining CBR.
Subsequently he was relieved on 23-1-1999 and (24-1-1999 being Sunday) he joined the
CBR on 25-1-1999 without any service break. He had been asking for counting of his
previous service of 14 years and 8 months i.e. from 20-5-1984 to 24-1-1999 for the
purpose of pensionary financial benefits as well as pay protection to the competent
authority of the CBR. CBR intimated him vide letter dated 17-4-2002 that the matter was
referred to the Finance Division but his request was not accepted. He being aggrieved
filed departmental appeal/representation before the competent authority on 4-5-2002
which was dismissed vide order dated 15-6-2002 which was conveyed to him on 21-6-
2002. He being aggrieved filed an Appeal No.660(R)(C.S.) of 2002 before the Federal
Service Tribunal, Islamabad. The learned Service Tribunal partly accepted his appeal vide
impugned judgment dated 7-2-2004. The Chairman CBR and others and Nawab Khan
being aggrieved filed C.Ps. Nos.840 of 2004 and 881 of 2004 which were fixed before
this ,Court on 4-4-2006 and leave was granted in the following terms:--
"After hearing the learned counsel for the petitioners at length, we grant leave to
appeal to consider, inter alia, the question whether the respondent, Nawab Khan
was entitled to have the protection of his previous service rendered in the State
Engineering Corporation for the purposes of pay fixation and counting of
previous service for pension...."
3. The learned Deputy Attorney General submits that Nawab Khan had submitted
application directly in response to the advertisement to the office of the Chairman CBR.
He had already completed requisite length. of service in the autonomous body and had
resigned from the said organization, therefore, the learned Service Tribunal erred in law
to accept his appeal to the extent of counting his previous service for the purpose of
financial benefits in the autonomous body from 20-5-1984 to 24-1-1999.
4. The learned counsel of Nawab Khan has supported the impugned judgment and
further urged that the learned Service Tribunal had granted one relief to him as
prayed for in his appeal before the Service Tribunal but the second relief was denied
without application of mind.
5. We have given our anxious consideration to the contentions of the learned counsel
of the parties and perused the record. The learned Service Tribunal had decided the
controversy between the parties after analyzing the documents on record in
accordance with law on the subject `Pensionary Rules' of `Hand Book for Drawing
and Disbursing Officers' Chapter IX, Rule 9.6(v) read with CSR 418(b). The said
provision of law had already been interpreted by this court in Nafees Ahmad's case
Page No. 2 of 3
2000 SCMR 1864. The relevant observation is as follows:
"The respondent authorities are bound to follow the law in relation to the
above facts of the claim of the appellant i.e. (1) protection of his pay and (2)
counting of his period of service with S.B.P. towards pensionary benefits.
Failure on the part of the Tribunal to act in accordance with the law on the
subject cannot but be reversed with a direction to the respondent to fix the
salary of the appellant at Rs.2,530 commencing vide order, dated 14-11-1999
and July, 1989. Order accordingly."
6. The operative part of the impugned judgment is reproduced hereunder:
We agree with the learned counsel for the appellant that the case being
discussed in the above judgment is identical with the case in hand inasmuch
as (i) the appellant in the present case has put in 14 years and 8 months
service in the autonomous body, (ii) he had also resigned his previous job
before taking up his new appointment in the Government (iii) his service in
the autonomous body is to be treated as effective service on his appointment
in the Government and (iv) that the appellant is prepared to pay his pension
contribution out of his own resources in case his former department shows
any reluctance to pay the same. In our view, the judgment dated 13-5-1999
supports the case of the appellant whole hog………Additionally FR 22(a)
bars protection of pay to an employee who does not hold a lien on his
previous permanent post. The appellant resigned his post as Manager HEC,
before joining as Cost Accountant in the CBR and, therefore, obviously his
lien in his formal post stood abolished, debarring him from protection of his
pay drawn as Manager HEC"
7. The learned Service Tribunal had decided the case in terms of the dictum laid
down by this court in the aforesaid judgment. It is settled principle of law that
judgment of this court is binding on each and every organ of the State by virtue of
Articles 189 and 190 of the Constitution of Islamic Republic of Pakistan. The
learned Service Tribunal had rendered finding of fact after appreciation of evidence
on record. Finding of fact recorded by the Service Tribunal is also in consonance
with the aforesaid rules on the subject and law laid down by this court. Similarly the
learned Service Tribunal had rightly refused the second relief to Nawab Khan in
terms of fundamental rules 22(a). Both the learned counsel had failed to point out
any infirmity or illegality in the impugned judgment. Even otherwise appellants had
failed to raise any question of public importance as contemplated under Article
212(2) of the Constitution of Islamic Republic of Pakistan. It is settled principle of
law that finding of the Service Tribunal being finding of fact cannot call for any
interference by this court while exercising power under Article 212(3) of the
Constitution of Islamic Republic of Pakistan as law laid down by this court in Ch.
Muhammad Azim's case 1991 SCMR 255. It is also settled principle of law that
constitutional jurisdiction is always discretionary in character as the Service
Tribunal had decided the case within the parameters and rules on the subject and law
laid down by this court, therefore, we are not inclined to exercise our discretion
under Article 212(3) of the Constitution of the Islamic Republic of Pakistan in
favour of the appellants.
8. In view of what has been discussed above these appeals have no merit and the
same are dismissed.
M.H./C-5/SC Appeal dismissed.
Page No. 3 of 3
2010 S C M R 1425
Present: Raja Fayyaz Ahmad and Ch. Ijaz Ahmed, JJ
SECTION OFFICER, GOVERNMENT OF PUNJAB, FINANCE DEPARTMENT

and others---Appellants
Versus
GHULAM SHABBIR---Respondent
Civil Appeal No.381-L of 2009, decided on 5th April, 2010.
(Against the judgment dated 24-11-2008 passed by the Lahore High Court, Bahawalpur
Bench in Writ Petition No.3300 of 2008).
----Art. 185(3)---Leave to appeal was granted by Supreme Court to consider the

contentions of employer/bank that High Court had erred in law in allowing employee's
Constitutional petition as he could not have withdrawn his request for r et ir em e nt after
availing leave preparatory to retirem ent and that if order passed by High Court
would be allowed to remain in field it would be taken as precedent and entire fabric of
service would be punctured, while the employee contended that petition was barred by
time and before completion of leave preparatory to retirement, he had lawfully withdrawn
his request for retirement.
(b) Punjab Civil Services Pension Rules, 1995---
----R.3.5, Note-I---ESTACODE, 2003 Edition (Punjab), page 690---Leave preparatory

to retirement---Withdrawal---Respondent was employee of bank, who applied for
voluntary retirement and had availed leave preparatory to retirement---After availing
almost full period of leave preparatory to retirement, employee withdrew his option of
retirement-Bank did not allow the employee to withdraw his option of retirement but
High Court in exercis e of Constitutional jurisdiction directed the bank to let the
employee withdraw his option of retirement---Validity---Employee availed leave
preparatory to retirement for almos t 365 days in view of his a c c e p t a n c e of
retirement by bank vide order dated 16-6-2006 coupled with the fact that employee had
submitted application for withdrawal of his voluntary retirement just five days before his
actual retirement on 30-6-2007---Employee had taken benefit of order dated 16-6-2006
and had mentioned his intended date of retirement as 30-6-2007---On 19-5-2008,
competent authority dismissed his application for withdrawal of his resignation with
cogent reasons in t e r m s of law on the subject---Employee had failed to point out any
illegality in the o r d e r passed by bank---High Court a c c e p t e d Constitutional petition
filed by employee, without adverting to relevant rules on the subject---Judgment passed
by High Court was set aside by Supreme Court while the order dated 19-5-2008, passed
by authorities was upheld---Appeal was allowed.
(c) Administration of justice---
----Judge must wear all laws of the country on the sleeves of his robe and failure of
counsel to properly advise is not a complete excuse in the matter.
Muhammad Sarwar's case PLD 1969 SC 278 and Shamoon Bahadur's case PLD
1979 SC 835 rel.
----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of

Supreme Court is binding on each and every organ of the State by virtue of Arts. 189 and
Page No. 1 of 4
190 of the Constitution.
Muhammad Iqbal's case 1984 SCMR 334 rel.
Muhammad Hanif Khattana, Additional Advocate-General for Appellants.
Mian Shah Abbas, Advocate Supreme Court for Respondent.
Date of hearing: 5th April, 2010.
JUDGMENT
CH. IJAZ AHMAD, J.--Necessary facts out of which the present appeal arises are
that respondent was appointed by the appellants as Junior Clerk in Agricultural
Department. He had completed 26 years and 3 months service qualifying for
pension. Respondent submitted an application before appellant No.3 for voluntary
retirement. He also submitted an application for securing LPR w.e.f. 1-7-2006 to 30-
6-2007 before appellant No. 3 who accepted the same vide order dated 16-6-2006.
Notification also contained the following para:
"He shall stand retired from Government Service with effect from 30-6-2007
(After Noon)."
2. Respondent submitted an application under the subject "request for cancellation

of LPR Ghulam Shabbir, J.C." on 24-6-2007 which was received in the office of the
appellants on 25-6-2007 and the same was forwarded by his parent department to
the Finance Department. The same was declined in the light of note No.1 beneath
Rule 3.5 of the Punjab Civil Services Rules. Respondent being aggrieved filed
constitutional petition No.3300 of 2008 in the Lahore High Court, Bahawalpur
Bench which was accepted vide impugned judgment.
3. On 29-5-2009, this Court granted leave to the petitioners/ appellants, relevant

para therefrom is reproduced hereunder:-
"Learned Law Officer, on merits, submitted that the respondent voluntarily

applied for retirement, the Department allowed his application, vide order
dated 16-6-2006 and sanctioned LPR, which was to expire on 30-6-2007 on
which date he was to retire but the respondent after availing total period of
LPR applied for withdrawal of his request for retirement; that the learned
High Court erred in law in allowing respondent's constitutional petition as
the respondent could not have withdrawn his request for retirement after
availing LPR and that if the impugned order is allowed to be remained in
field it will be taken as precedent and the entire fibre of service will be
punctured. Conversely, learned AOR for the respondent, submitted that the
petition was barred by time and that the respondent before completion of
LPR lawfully withdrew his request for retirement.
Having heard learned Additional Advocate-General and the learned AOR for
the respondent, we grant leave to appeal to the petitioners, to inter alia,
consider the afore-noted contentions, subject to the bar of limitation, which
question will be decided at the time of hearing the appeal."
4. Learned Additional Advocate General submits that impugned judgment is not in

consonance with Punjab Civil Service Pension Rules, 1955 particularly note-I of
rule 3.5 under the heading retiring pension. He also urged that impugned judgment
is not in consonance with the law laid down by this Court in various
pronouncements.
5. Learned counsel for the respondent has supported the impugned judgment.
6. We have given our anxious consideration to the contentions of learned counsel for
the parties and perused the record. It is better and appropriate to reproduce basic
Page No. 2 of 4
facts along with note-1 in rule 3.5 retiring pension of said rules to resolve the
controversy between the parties:
(i) Respondent submitted application for voluntary retirement along with

another application to secure LPR w.e.f. 1-7-2006 to 30-6-2007 which was
accepted vide order dated 16-6-2006 along with the observation that
respondent would stand retired from service w.e.f. 30-6-2007 (After Noon).
(ii) Respondent submitted an application 4/5 days before his actual date for
withdrawal of his voluntary resignation to the appellants on 26-6-2007 which
was forwarded by the appellants to the Finance Department and the same was
rejected vide order dated 19-5-2008.
PUNJAB ESTACODE, RULE 3.5. NOTE-1:--
Note (I) Subject to the provisions of the Essential Services Maintenance Act,
all government servants shall have the right to retire on a retiring pension
after, completing 25 years qualifying service; provided that a government
servant, who intends to retire before attaining the age of superannuation,
shall, at least three months before the date on which he intends to retire,
submit a written intimation to the authority which appointed him, indicating
the date on which he intends to retire. Such an intimation, once submitted,
shall be final; provided that if a government servant withdraws his
application for voluntary retirement, or modifies the date bf such retirement,
before its acceptance by the competent authority, the application or the date
of retirement shall be deemed to have been withdrawn or modified, as the
case may be.
7. In case the aforesaid facts and the Note-I or Rule 3.5 of the Punjab Civil Services
Pension Rules, 1955 (Punjab ESTACODE 2003 page 690) are put in a juxtaposition,
then respondent had availed LPR almost 365 days in view of his acceptance of his
retirement by the appellants vide order dated 16-6-2006 coupled with the fact that
the respondent had submitted an application for withdrawal of his voluntary.
retirement just five days before his actual retirement on 30-6-2007. This fact brings
the case of the respondent that the respondent had taken the benefit of the order
dated 16-6-2006. The respondent had mentioned his intended date of retirement as
30-6-2007. The competent authority had dismissed his application for withdrawal of
his resignation with cogent reasons in terms of law on the subject as mentioned
above vide order dated 19-5-2008. Respondent had failed to point out any illegality
in the impugned order of the appellants dated 19-5-2008. The learned High Court
had accepted the constitutional petition without adverting to the relevant rules on
the subject as evident from the contents of the impugned judgment. It is a settled
law that a Judge must wear all the laws of the country on the sleeve of his robe and
failure of the counsel to properly advise is not a complete excuse in the matter as
law laid down by this Court in Muhammad Sarwar's case PLD 1969 SC 278. The
question of law has settled down by this Court since long in Shmoon Bahadur's case
PLD 1979 SC 835. The relevant observation is as follows:--
"Nonetheless when the LPR was about to come to an end the respondent, by
an application dated 3rd of June 1971 showed his desire to withdraw his
request which apparently was misconceived as on that date an effective order
for his retirement has already been passed. The option having been once
exercised it did not lie in his mouth to go back on it in the context of the
finality of the consequences ensuing therefrom by its acceptance."
8. The said view was approved by this Court in Muhammad Iqbal's case 1984 SCMR
334. The impugned judgment is not sustainable in the eyes of law on any canon of
justice. It is a settled law that judgment of this Court is binding on each and every
organ of the State by virtue of Articles 189-190 of the Constitution but the learned
High Court had accepted the constitutional petition of respondent in violation of law
laid down by this Court in the aforesaid judgment.
Page No. 3 of 4
9. In view of what has been discussed above, appeal is allowed as a result whereof
impugned judgment is set aside with no order as to costs.
M.H./S-17/SC Appeal allowed.
Page No. 4 of 4
2 0 1 0 S C M R 594
Present: Iftikhar Muhammad Chaudhry, C. J., Raja Fayyaz Ahmed and Ch. Ijaz
Ahmed, JJ
KHALID RASHID----Petitioner
Versus
KAMRAN LASHARI, Chairman, C.D.A., Islamabad and others----Respondents
Criminal Original Petition No.32 of 2008 in Civil Appeal No.1637 of 2007, decided on 3rd
June, 2009.
(Petition under Articles 204 and 187 of Constitution of Islamic Republic of Pakistan, 1973,
read with Contempt of Court Ordinance, 2003 and Order XXVII, Rule 1 of the Supreme
Court Rules, 1980 read with all enabling provision for contempt of Court).
----Art. 204---Contempt of Court Act (LXIV of 1976), Ss.3 & 4---Contempt of

Court---Initiation of contempt proceedings---Principles: (1) Proceedings cannot be
initiated at the desire of a litigant party, (ii) Court has to be satisfied as to whether act
of respondents comes within the mischief of law or otherwise amounts to interference
with the administration of justice, (iii) Very purpose of initiating contempt
proceedings is always vindication of dignity and honour of the Court or that of the
justice of administration, (iv) Once undertaking is given to the Court by a party or on
behalf of his counsel it becomes bound to fulfil the same on the ground that the
undertaking has exactly the same force as an order made or an injunction issued by a
Court, (v) Supreme Court is not bound to start contempt proceedings unless it is
shown that the alleged contemner had acted recklessly and with the open motive to
show his disrespect to the authority of the Court, (vi) Supreme Court instead of
starting such proceedings would prefer to adopt the principle of "Afwoo" as
recognized by Muslim Jurisprudence and (vii) Contempt is always between the
contemnor and the Court.
Mst. Kishwar Sultan Jehan Begum's case PLD 1976 Lah.580; `Khyber Zaman's case 2005
SCMR 235; Shah Alam Khan's case PLD 1993 SC 297; Sarfraz Hussain's case 2005 YLR
337 and Tarit Kanti Biswas' case AIR 1918 Cal. 988 ref.
----Arts. 4, 189 & 190---Decisions of Supreme Court binding on the other Courts---
All executive and judicial authorities to act in aid of Supreme Court---Judgment of
Supreme Court, and a right declared thereunder, cannot be overridden or nullified by
an executive order, a rule or a dispensation short of legislative will.
Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi Development Authority's case PLD 1969
SC 430 and Capt.(Retd.) Abdul Qayyum's case PLD 1992 SC 184 ref.
----Art. 204---Contempt of Court---Change of master plan or creation of plots in

open area---In view of the concise statement filed by the respondents and the decision
of the C.D.A. Board, no case for taking action against the respondents for contempt of
Court was made out because the main civil appeal had not been decided on merits, but
the same was decided on the undertaking of the respondents as was depicted from the
order of Supreme Court and the decision of the Board of C.D.A. did not seem to be
violative of the said order of Supreme Court---Petition for contempt of Court was
dismissed accordingly.
Page No. 1 of 8
Moulvi Iqbal Haider's case PLD 2006 SC 394; Mst. Kishwar Sultan Jehan Begum's
case PLD 1976 Lah.580; Khyber Zaman's case 2005 SCMR 235; Shah Alam Khan's
case PLD 1993 SC 297; Sarfraz Hussain's case 2005 YLR 337; Tarit Kanti Biswas'
case AIR 1918 Cal. 988 Ch. Zahur Illahi's case PLD 1975 SC 383; Karachi
Development Authority's case PLD 1969 SC 430; Capt.(Retd.) Abdul Qayyum's case
PLD 1992 SC 184; Messrs Nishat Mills Limited v. Government of Pakistan and others
1989 CLC 1692; Imtiaz Ali's case 2001 SCMR 832; Tariq Aziz's case 2000 SCMR
751; Safia Bibi's case PLD 1982 SC 247 and Rana Muhammad Arshad's case 1998
SCMR 1462 ref.
Muhammad Akram Sheikh, Senior Advocate Supreme Court for Petitioner.
Afnan Karim Kundi, Advocate Supreme Court and Raja Abdul Ghafoor, Advocate-on-
Record for Respondents.
Ch. Mushtaq Ahmed Khan, Senior Advocate Supreme Court and M.S Khattak,
Advocate-on-Record for Applicants (in Criminal Miscellaneous Application No.432
of 2008).
ORDER
CH. IJAZ AHMED, J.--- Brief facts out of which the present petition arises are that
Plot No.27 measuring about 600 square yards situated at Street No.39, 1-8/2,
Islamabad, was originally allotted to Bashir Ahmed on 12-2-1990 which was
purchased by the petitioner and the same was transferred in the name of the petitioner
on 9-4-2005. The petitioner had constructed house over the plot in question. Allegedly
respondent No.1 approved sector plan of sector I-8/2 and adjacent to his house as well
as other House No.22 towards north area has been left as "green area". Respondent
No.1 had created four plots to accommodate respondents Nos.3, 4, 6 and 7. The
petitioner being aggrieved filed Constitution Petition No.1045 of 2007 in the Lahore
High Court, Rawalpindi Bench, Rawalpindi, with the following prayer:--
"In the circumstances it is respectfully prayed that the conversion of the area
earmarked as "green" attached to the house of the petitioner and House No.22,
situated at Street No.39, Sector I-8/2, Islamabad may kindly be declared as
illegal, based on mala fide. An appropriate writ may kindly be issued and
respondents be restrained from converting the green area into the plots for the
benefits of the respondents."
The afore-said writ petition was dismissed by the learned High Court vide order dated
18-5-2007. Petitioner being aggrieved filed C.P. No.553 of 2007 which was fixed
before this Court on 12-9-2007. Leave was granted in the following terms:--
"The questions as whether the C.D.A. Authorities can make allotment of a

residential or commercial plots in the C.D.A. area in their discretion and
policy of law regarding disposal of such plots through public auction is not
mandatory and can be dispensed with and whether green area can be converted
into residential or commercial plots without the change of the master plan,
would require consideration. Leave is accordingly granted to consider the
above questions and in the meanwhile subject to notice to the private
respondents, status quo in all respects shall be maintained by the parties vis-a-
vis the plots in question."
The said petition.was converted into Appeal No.1637 of 2007 which was finally
decided on 15-4-2008 in the following terms by this Court:---
"Messrs Malik Muhammad Qayyum, learned Attorney General for Pakistan

and Abdur Rehman Siddiqui, Advocate Supreme Court appearing on behalf of
Federation of Pakistan and C.D.A. have stated that green area adjacent to
House No.27 Street No.39, 1-8/2, Islamabad belonging to appellant Khalid
Rashid shall not be disturbed and will remain as such.
Page No. 2 of 8
In view of above, Mr. Muhammad Akram Sh., learned Senior Advocate
Supreme Court appearing on behalf of appellant is satisfied and does not want
to pursue the matter further to which Messrs Babar Awan, learned counsel
appearing on behalf of private respondents and Muhammad Ishtiaq Ahmed
Raja, learned Advocate Supreme Court appearing in C.M.A. No.3026 of 2007
have no objection.
Accordingly, instant appeal along with C.M.As. Nos.2872 and 3026 of 2007
and C.M.A. No.641 of 2008 are disposed of in the above terms with no order
as to cost."
Respondents allegedly failed to honour their commitment in terms of the order of this
Court dated 15-4-2008. Petitioner being aggrieved filed Criminal Original Petition
with the following prayer:--
(i) The respondents Nos. 1 to 7 be punished for contempt of Court.
(ii) That respondents Nos.1 to 7 be directed to comply with the order dated
15th April, 2008 in letter and spirit and to demolish construction of building
carried out after the 15-4-2008 and to confirm in writing to the honourable
Court compliance of the order dated 15th April, 2008,
(iii) To direct the respondents to pay the cost of the petitioner's litigation
besides paying Rs.50 million as compensation to the petitioner for the mental
agony and distress for over one year.
(iv) Any other relief, which the petitioner is entitled in law, justice and equity
may also be awarded."
The said contempt petition was fixed before this Court on 3-9-2008 and the following
order was passed:---
"This Court vide order dated 15-4-2008 had disposed of the matter with
consent and with the observation that green area adjacent to House No.27,
Street No.39, Sector 1-8/2, Islamabad, belonging to the appellant Khalid
Rashid shall not be disturbed and will remain as such. Through the instant
criminal original petition, the appellant has agitated that the orders of this
Court have been violated and respondents have started construction on the
green area mentioned above. The respondents have filed written statement and
have denied the contention raised in the contempt application.
In order to resolve the dispute Haji M. Rafi Siddqqui, learned Advocate,

Supreme Court, is appointed as Local Commissioner to inspect the site in
presence of both the parties. The appellant will pay a sum of Rs.15,000
(Rupees fifteen thousand) only, as cost to Haji M. Rafi Siddiqui, Local
Commissioner.
By consent adjourned to 15-9-2008."
The said petition was fixed on 15-9-2008 and the following order was passed:---
"In this case, Local Commissioner has submitted his report. Mr. M. Jafar
Hashmi, learned counsel for the respondents submits that he has not received
the copy of the report, as such is not in a position to argue the matter and
requests for time to file the reply to the Local Commissioner's report.
Adjourned to 7-10-2008.
Thereafter the case was fixed on 7-10-2008 and the following order was passed:---
"Mian Muhammad Hanif, Advocate Supreme Court undertakes to file reply

within fortnight. By consent adjourned to 27-10-2008."
Page No. 3 of 8
The order dated 27-10-2008 depicts that Advocate-on-Record of the respondents
handed over copy of concise statement to petitioner on 25-10-2008 which was
received by the counsel of the petitioner on 27-10-2008 and the case was adjourned.
Thereafter the petition was fixed before this Court on 18-11-2008 and 2-12-2008 and
the following orders were passed respectively:--
Order dated 18-11-2008
"Mian Muhammad Hanif, learned counsel for C.D.A. requests for time to
produce Original/unamended Master Plan of Sector I-8 as well as amended
Plan. Adjourned to 2-12-2008.
Notice be issued in Cr.M.A. No.432 of 2008 for impleadment of party to the

petitioner as well as the respondents."
Order dated 2-12-2008
"Mian Muhammad Hanif, learned Advocate Supreme Court has placed on

record original copy of map of 1991. Whereas so far as the plot in question is
concerned clear open space has been shown in front of it. He requests for time
as Director (Town Planning), C.D.A. has proceeded to perform Hajj and is not
available. By consent adjourned to a date in office during the last week of
January, 2009."
2. Learned counsel for the petitioners submits as under:
(i) That respondents had committed contempt of this Court as depicted by

mere perusing the contents of the concise statement filed by them before this
Court.
(ii) The respondents have no lawful authority to change the master plan
without adopting proper procedure prescribed under the provisions of C.D.A.
Ordinance and regulations framed thereunder. In support of his contention he
relied upon Moulvi Iqbal Haider's case PLD 2006 SC, 394.
(iii) The respondents had given undertaking before this Court that green area
adjacent to the house of the petitioner as shown in the Master Plan would not
be disturbed in any manner whatsoever and would remain as such.
(iv) On the basis of the undertaking of the respondents, the appeal of the
petitioner was disposed of.
(v) The petitioner had sent a letter dated 28-5-2008 and letter dated 7-6-2008 for
the implementation of the order of this Court.
(vi) The respondents did not respond to the afore-said letters and had violated the
order of this Court.
(vii) The Local Commissioner has already submitted report which reveals that the
respondents had committed contempt of this Court.
(viii) Respondent No.1 had created plots over the land reserved for green area in
violation of the provisions of C.D.A. Ordinance, 1960 and regulations framed
thereunder to favour their own high officers of the C.D.A., namely Brig.
Nusratullah, Ex-Member Planning and Design, Mr. Kamran Qureshi, Member
Finance, Mr. Shaukat Mehmand, Ex-Member Administration and Brig. (R) Syed
Ghulam Akbar Bukhari, Ex-Member Engineering, without inviting applications
from the public at large or from all the employees of the C.D.A.
(ix) The action of the respondents is not only violation of the provisions of the
C.D.A. Ordinance and Rules and Regulations framed thereunder but the action of
Page No. 4 of 8
the respondents is also hit by fundamental rights i.e. Articles 9, 14 and 15 of the
Constitution.
(x) The respondents, mentioned above, have been allotted plots in question for a
petty amount whereas the same are worth of crores of rupees which is not in
accordance with law. It is inalienable right of every citizen by virtue of Article 4
of the Constitution.
3. Learned counsel for the respondents submits that respondents had not violated the
order of this Court. The respondents had also filed objections with regard to the report of
the Local Commissioner. The petitioner approached the respondents to purchase the land
of the respondents adjacent to the house of the petitioner. The area adjacent to the house
of the petitioner had not been disturbed till date. The matter was placed before the Board
of the C.D.A. in its meeting held on 28-10-2008 with regard to the implementation of the
order of this Court. The Board had taken a decision on 28-10-2008 which is as follows:
"The Board decided that Environment Wing to establish a public park on that site.
The development and maintenance of the plots is to be one by the Environment
Wing of C.D.A. with the cooperation of residents of Society of the area."
4. He further urges that petitioner has not approached this Court with clean hands as the
petitioner wants to grab and utilize the land owned by the C.D.A. as is evident from the
contents of the application submitted by the petitioner to the respondents which is to the
following effect:---
"That in order to grab the unutilized land owned by the C.D.A., the petitioner Mr.
Khalid Rashid applied to C.D.A. for grant of permission for development of waste
land into green are adjacent to H. No.27, Street No.39, Sector I-8/2. The subject
of the application submitted by the petitioner is reproduced below;
Please find enclosed pictorial representation of the waste land adjacent to my

house. As per C.D.A.'s master plan sewerage pipelines are passing through waste
land now turned into shrubs and wild growth, abode for wild bears etc.
The land in question as such cannot be used for any other purpose except to be
developed as green area.
Sir, I am willing to undertake the project developing the waste land into green
area at my cost and kind cooperation of C.D.A."
5. The learned counsel of the private respondents submits that private respondents had
not committed contempt of this Court as evident from the contents of the order of this
Court dated 15-4-2008.
6. The learned counsel for the petitioner in rebuttal submits that respondents had no
lawful authority to convert green belt into park and had no lawful authority to change the
master plan. The petitioner had not submitted an application before the respondents to
purchase the area in question which is adjacent to his house.
the parties and also perused the record. It is pertinent to mention here that the appeal was
disposed of on 15-4-2008 in the aforesaid terms mentioned hereinabove. Contentions
which have been raised before us by the learned counsel of petitioner on merits with
regard to change of the master plan or creation of plots in open area east of Plots Nos.22,
24, 25 and 26 have no force which can be relevant to resolve the controversy between the
parties at the time of deciding the main Civil Appeal No.1637 of 2007. The question
before us is of to examine whether respondents have violated their undertaking which
was made before this Court on 15-4-2008? It is better and proper to highlight principles
qua initiation of contempt proceedings or not as under:--
(i) That the proceedings cannot be initiated at the desire of a litigant party.
Page No. 5 of 8
(ii) The Court has to be satisfied as to whether act of respondents comes within
the mischief of law or otherwise amounting to interference with the
administration of justice.
(iii) The very purpose of initiating contempt proceedings is always vindication of

dignity and honour of the Court or that of the justice of administration.
(iv) That once undertaking given to the Court by a party or on his behalf of his
counsel it becomes bound to fulfil the same on the ground that undertaking has
exactly the same force as an order made or in injunction issued by a Court as law
laid down by Full Bench of the Lahore High Court headed by Sardar Muhammad
Iqbal, C.J (as his Lordship then was) in Mst. Kishwar Sultan Jehan Begum's case
PLD 1976 Lah.580 and Khyber Zaman's case 2005 SCMR 235.
(v) This Court is not bound to start contempt proceedings unless it is shown that
the alleged contemnor acted recklessly and with the open motive to show his
disrespect to the authority of the Court.
(vi) Instead of starting such proceedings, this Court preferred to adopt the
principle of "Afwoo" as recognized by Muslim Jurisprudence. See Shah Alam
Khan's case PLD 1993 SC 297.
(vii) Contempt is always between the contemnor and the Court. See Sarfraz
Hussain's case 2005 YLR 337. This question of law has also been considered by
Calcutta High Court in Tarit Kanti Biswas' case AIR 1918 Cal.988.
Order dated 15-4-2008 has already been reproduced hereinabove which was passed on
the undertaking of the counsel of the respondents and Attorney General for Pakistan. The
said order was considered in the meeting of the Board of Directors of C.D.A. held on 28-
10-2008. The decision has already been reproduced hereinabove. The manner in which
the order was discussed in the meeting in para 7.4 is reproduced herein below:--
"Director Urban Planning, explained to the Board that Sewerage trunk line was
laid diagonally when the area in Sector I-8 was unplanned. However, in the years
1996-1997 utilization of land in Sector I-8 was approved along with re-routing of
trunk sewer line, space thus became available has been utilized for
planning/adjustment of plots as per ground situation. At the time of existence of
trunk sewer line, permission was issued to Col. Khalid Rashid, allottee of Plot
No.27, St.39, Sector I-8/2 for beautification of C.D.A. land on temporary basis
liable to be withdrawn as and when desired by the authority. By virtue of this
temporary permission the allottee has approached the Supreme Court of Pakistan
about the creation of plots in open area of east of Plots Nos.22, 24, 25 and 26 have
also been adjusted towards west keeping in view the ground situation. The orders
of the Supreme Court of Pakistan are as under:
He explained that in pursuance of the Court decision, Col. Khalid Rashid, has
approached the authority to keep the area green on east of Plot No.27, St.39,
Sector I-8/2, whereas as per plan previously this area was waste land because of
trunk sewer line and row is a planned plot.
He further explained that Col. Khalid Rashid has served a fresh notice that he is
going to file contempt of Court against C.D.A. for non-compliance with the
orders of Supreme Court of Pakistan.
He further explained that in case the area on east of Plot No.27 is to be converted
into green, C.D.A. has to sacrifice two plots (unallotted) measuring `60 x 90'. He
placed the following options before the Board for decision:
(i) If there is binding on C.D.A. as per decision of the Supreme Court of Pakistan
to convert the area adjacent to Plot No.27 into green on permanent basis, then two
plots numbered 25 and 26 have to be eliminated from the plan.
Page No. 6 of 8
(ii) If the Court decision may be interpreted as "It means the issuance of
permission for beautification of the same land till the land is utilized by C.D.A.",
then permission for beautification may be issued which would be purely
temporary and liable to be withdrawn whenever required by C.D.A."
Mere reading the manner in which the order was considered in the meeting of the Board
of C.D.A. is contemptuous. It is settled principle that everybody is bound to obey the
command of the Constitution in view of Article 5(2) of the Constitution as law laid down
by this Court in Ch. Zahur Illahi's case PLD 1975 SC 383. The public functionaries are
also duty bound to act in accordance with law in view of Article 4 read with Articles 189
and 190 of the Constitution. Laws are made not to make them merely on the statute
book which are framed time to time but act upon them, which is in consonance with
the Holy Qur'an as enshrined in Surah Baqra. The afore-said proposition of law is
also supported by the following judgments:
(i) Karachi Development Authority's case PLD 1969 SC 430, (ii) Capt.(Retd.)
Abdul Qayyum's case PLD 1992 SC 184.
The ratio of the afore-said cases is as follows:---
"that a judgment of the Supreme Court, a right declared thereunder, cannot be

overridden or nullified by an executive order, a rule or a dispensation short of
legislative will."
The question of law has been examined by this Court in Messrs Nishat Mills
Limited v. Government of Pakistan and others 1989 CLC 1692 and laid down the
following principle:---
"Before concluding, I would like to mention that the manner in which the
Central Board of Revenue has flouted the law declared by the Supreme Court,
leaves much to be desired, under Article 5(2) of the Pakistan Constitution,
1973, obedience to the Constitution and the law is the inviolable obligation
of every citizen and every other person resident in Pakistan. I am not aware
that the departments of the State are exempt from which obligation. Since
under Article 189 of the Constitution, the law declared by the Supreme Court
of Pakistan is binding on all Courts in Pakistan and under Article 190 of the
Constitution, all executive and judicial authorities throughout Pakistan are
bound to act in aid of the Supreme Court, one would assume that all organs
of the State are duty bound to act in aid of the law declared by the Supreme
Court and not flout it. One would expect that the Central Board of Revenue,
with its full-fledged legal cell, is aware of all laws declared by the superior
Courts of Pakistan relating to the subjects within their jurisdiction and does
not ignore these declaration when framing or amending the law, rules, and
notifications on the subject."
The afore-said minutes of the meeting dated 28-10-2008 clearly depict that the
respondents have prima facie committed contempt of this Court which is not in
consonance with the judgments of this Court as mention herein above. In fact it is
clearly in derogation of the judgment of this Court which tantamounts to
interference in the judgment of this Court and falls within the scope of contempt of
Court. It is settled principle of law that the judgment of this Court could not be
modified/ erased as law laid down by this Court in Imtiaz Ali's case 2001 SCMR
832. Non-observance of the orders of the superior Courts would create a chaos which
brings a situation to minimize the State concept of sovereign Islamic State minus a
strong and independent judiciary is unimaginable if the judiciary of the country is
stripped off, its power, the country would cease to exist as free nation as laws laid
by this Court in Tariq Aziz's case 2000 SCMR 751.
8. We are constrained to observe after perusing the minutes of the meeting of the
respondents dated 28-10-2008 reproduced hereinabove. However, Board in its
decision dated 28-10-2008 reproduced hereinabove that Environment Wing to
establish a public park on that site.
Page No. 7 of 8
9. Adverting to the case in hand after perusing the concise statement filed by the
respondents and the decision of the C.D.A. Board dated 28-10-2008 we find that a
case for taking action against the respondents for contempt of Court is not made out
for the following two reasons:
(i) Civil Appeal No.1637 of 2008 was not decided on merits but it was
decided in view of the undertaking of the respondents as is depicted from the
order of the Court dated 15-4-2008.
(ii) The decision of the Board of the C.D.A. dated 28-10-2008 as mentioned
hereinabove does not seem to be in violative of the order of this Court dated
15-4-2008.
10. We are not inclined to proceed against the respondents as law laid down by this
Court in Safia Bibi case PLD 1982 SC 247. After perusing the application
mentioned herein above of the petitioner we are not inclined to exercise our
discretion in favour of the petitioner as law laid down by this Court in Rana
Muhammad Arshad's case 1998 SCMR 1462.
11. In view of what has been discussed Criminal Original Petition has no merits and
the same is dismissed with no order as to costs.
N.H.Q./K-11/SC Petition dismissed.
Page No. 8 of 8
2006 S C M R 1769
Present: Iftikhar Muhammad Chaudhry, C.J. Tassaduq Hussain Jillani and

Karamat Nazir Bhandari, JJ
Human Rights Case No. 13-L of 2006, decided on 26th July, 2006.
(Complaint by Sheraz Mahmood Qureshi).
----Arts. 9, 184(3) & 190---Students of 4th and Prep. Classes---Kidnapping for ransom---
Registration of F.I.R.---Attempts for recovery of minors made by parents on private level
and by police officials failed---Press report about kidnapping alleging Tehsil Nazim
concerned to be assisting kidnapers---Assumption of suo motu jurisdiction by Supreme
Court on basis of Press report involving question of life and liberty of minors---Direction
of Court to D.I.-G., Police for recovery of minors---Recovery of minors from an area in
Afghanistan through notables of the area engaged by D.I.-G.---D.I.-G. and his team by
using professional skills and involving all other resources had performed an impossible
job---Minors had a right to live freely---D.I.-G. and his team had not only complied with
order of Court, but had shown great respect for enforcement of the Constitution knowing
well about such right of minors---Supreme Court recommended to Federal and Provincial
Governments to recognize services of D.I.-G. and his team in appropriate manner in
accordance with rules---Minors were handed over to their father.
----Art. 190---Duty of all executive and judicial authorities to act in aid of Supreme
Court.
----Art. 190---Duty of Police Officer to implement orders passed by Supreme Court---Job

of a good Police Officer to establish rule of law and to have respect for the law and the
Constitution.
Attendance
Zahir Khan father of abductee children along with abductees Nauman and Mohsin.
On Court notice
Muhammad Saeed Khan, Additional A.-G., N.-W.F.P.
Habibur Rehman, CCPO/D.I.-G., Peshawar.
Sher Akbar, S.P. City, Peshawar.
Aziz-ur-Rehman, D.S.P. (Investigation) City Peshawar.
Karamat Shah, Inspector, C.I.A., Peshawar.
Fazal Kareem, Sub-Inspector, Police Station Gulbahar, Peshawar.
Muhammad Ali, P.R.O. Governor Secretariat, Peshawar.
ORDER
IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- In this case Daily Express, dated

26th of June, 2006, reported about the abduction (kidnapping) of two minor boys in an
Page No. 1 of 3
incident which took place on 24th of November, 2005 when the minor children of Zahir
Khan in uniform left for school but did not return after school hours. Therefore; the
parents and other relatives started their search but without any success.
2. It is to be noted that preliminary enquiry revealed that both the minors were kidnapped
on their way to school. The accused involved in the commission of offence demanded
ransom of Rs.50,00,000 and also threatened the parents and relatives of the children not
to involve police otherwise they will be done to death. Poor parents having left with no
option, arranged an amount of Rs.48,00,000 but the culprits declined to hand over the
children for one reason or the other.
3. Under the circumstance, it was in the month of December, 2005, a case was registered
at Police Station Gulbahar, Peshawar. The whole family remained disturbed as no
progress was being made although the Police Officers/Officials did their best.
Representations/applications/complaints were sent by the parents and relatives of the
abductees to different quarters but without any success. Ultimately, they got issued
articles in the newspapers. One of the same appeared in the Daily Express, as noted
hereinabove. On having taken note of the fact that under Article 9 of the Constitution of
Islamic Republic of Pakistan, it is the question of life and liberty of the minors, suo motu
jurisdiction was assumed on the basis of the material furnished in the Daily Express. In
response to the same, Advocate-General, N.-W.F.P. was directed to appear along with the
concerned Police Officers as well as to produce Bahadur Khan, Tehsil Nazim,
Samarbagh, Lower Deer because in the article so published in Daily Express, it was
mentioned that he was assisting the kidnappers.
4. Mr. Habib-ur-Rehman, CCPO, Peshawar along with his team appeared in response to
the notice on the last date. He also produced Mr. Bahadur Khan. They were directed to
effect the recovery of the minors safely in order to ensure guarantee to their life and
liberty. The Secretary FATA was also directed to cooperate with the police.
5. Today, Additional Advocate-General, N.-W.F.P. and Mr. Habib-ur-Rehman,

CCPO/D.I,-G. Peshawar being the leader of the team appeared along with other officers
namely Mr. Sher Akbar, S.P. City Peshawar, Mr. Aziz-ur-Rehman, D.S.P. Investigation
City, Peshawar, Mr. Karamat Shah Inspector, C.I.A. Peshawar and Mr. Fazal Kareem,
Sub-Inspector, Police Station Gulbahar Peshawar and produced the minors namely
Nauman aged about 10-1/2 years and Mohsin aged 5 years. Both are the students of 4th
and prep classes in Municipal College and School Wazirbagh, Peshawar. They stated that
after passing of the order by this Court, they did their best to comply with the same and
had not wasted even a single moment knowing well that the order of the apex Court has
to be complied with at any cost.
6. Mr. Habib-ur-Rehman, CCPO/D.I.-G. Peshawar informed that he had constituted

teams to achieve the object and also involved the notables of the area and used his
personal contacts as well being a Police Officer and ultimately with the cooperation of his
team, some of them present in Court, succeeded in effecting the recovery of the minors
who were detained in the area of "Asmar, Jalalabad", Afghanistan. Recovery of the
minors was effected yesterday at about 5-00 p.m. He stated that the notables were
engaged and they had crossed the border and brought both the minors in pursuance of the
efforts which were made by the police and straightaway they have come to Lahore for
producing the minors in Court and showing the compliance of the order. Therefore, he
could not prepare the report. CCPO/D.I.-G. is directed to prepared the report and send its
copy to the Registrar as well as to the Secretary FATA and the Home Secretary of N.-
W.F.P.
7. It is the duty of all executive authorities and judicial authorities throughout Pakistan to
act in aid of Supreme Court under Article 190 of the Constitution, therefore, in discharge
of such duty, the Police Department of N.-W.F.P. under the command of Mr. Habib-ur-
Rehman, CCPO, Peshawar had not only complied with the order but had shown great
respect for enforcement of the Constitution knowing well that it is the right of both the
minor children to live freely. The task accomplished by them would furnish a precedent
for all other executive authorities for the purpose of complying the order of the apex
Court. The object which has been achieved by them was apparently very difficult, as
Page No. 2 of 3
according to their information, the minor boys were not kept in Pakistan but had been
shifted to Afghanistan. Therefore, they have performed a job which otherwise had
become impossible. Mr. Habib-ur-Rehman, CCPO along with his team who have been
named hereinbefore, deserve encouragement and appreciation for performing the duty by
using their professional skills and involving all other resources.
8. We are of the considered opinion that this is the job of a good Police Officer/officers to
establish rule of law who has/have respect not only for the law and the Constitution but
for the implementation of the orders passed by the Supreme Court. We would recommend
to the Provincial Government to recognize their services in an appropriate manner as
deemed fit under the rules and regulations. Copy of this order be sent to the Chief
Secretary, N.-W.F.P. with direction that he would further make
recommendations/endorsements under his own handwriting along with this order to the
Secretary Establishment for the purpose of keeping the same on record of the Police
Officers. Similarly those Police Officers who belonged to the Provincial Cadre, their
services would also be recognized by the Chief Secretary by placing copy of the same on
their service record as well and according to rules on the subject.
9. Let copies of this order be sent to the Interior Secretaries and I.-Gs. of Police of all the
four Provinces as also to the I.-G.P. of Islamabad for information of all the executive
authorities.
10. Zahir Khan father of the minors is present along with other relatives and stated that
the custody of both the minors has been handed over to him. It appears that there is some
business rivalry of Zahir Khan, therefore, he deserves to be provided protection by the
police department of N.-W.F.P. according to requirement of law. Since the task has been
accomplished successfully, therefore, no further action is called for. Petition stands
disposed of accordingly.
S.A.K./S-52/SC Order accordingly.
Page No. 3 of 3
2005 Y L R 2567
[Lahore]
Before Ch. Ijaz Ahmad, J
ABDUL SHAHID---Petitioner
Versus
FEDERATION OF PAKISTAN, through Secretary, Law Justice and Human

Rights Division, Islamabad and 2 others---Respondents
Writ Petition No.10826 of 2004, decided on 1st July, 2004.
(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of

1983)--
----Arts. 2, 9 & 32---Constitution of Pakistan (1973), Arts. 199, 189, 190, 5(2) & 4---
Constitutional petition---Trichotomy---Organs of State---Command of the
Constitution---Rule of law---Petitioner filed a complaint before the Wafaqi Mohtasib-
e-Aala, who accepted the same---Respondent filed representation, which was accepted
without hearing the petitioner---Validity---Order passed without Providing proper
hearing to a party was not In consonance with law---Competent authority had passed
the order without providing proper hearing, such order was set aside and
representation filed by the respondent would be deemed to be pending adjudication
and was to be decided after proper hearing.
Commissioner of Income-tax v. Fazl-ur-Rehman PLD 1964 SC 410; Pakistan Chrome

Mines v. The Enquiry Officer PLD 1983.SC 1208; Pakistan and others v. Public at
Large PLD 1987 SC 304 and University of Dacca v. Zakir Ahmed PLD 1965 SC 90
ref.
Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2189; Federation of

Pakistan v. Muhammad Tariq Pirzada 1999 SCMR 2744 and Mst. Nusrat Imtiaz v.
Government of Pakistan NLR 2000 Civil 54 cited.
----Arts. 189 & 190---Judgments of the Supreme Court are binding on each and every
Organ of the State.
----Arts. 5(2) & 4---Command of Constitution trichotomy---Constitution is based on

trichotomy and is a social binding contract between the organs of the State and people
of Pakistan---Duty of each and every authority is to act in accordance with law used
in generic sense as connoting all that is treated as law including even the judicial
principles---Every body is bound to obey the command of the Constitution.
Ch. Zahoor Elahi's case PLD 1975 SC 383 and Manzoor Elahi's case PLD 1975 SC 66
ref.
----Art. 199---Civil Procedure Code (V of 1908), Preamble---Principle of

consistency---View taken in a case unless set aside or dissented with is to be
followed.
Muzaffar Khan's case PLD 1959 SC 9 ref.
Liaqat Ali Butt for Petitioner.
Page No. 1 of 3
Dr. Danishwar Malik, D.A.-G. for Pakistan on Court's Call.
ORDER
The brief facts out of which present writ petition arises are that the petitioner filed a
complaint before the Wafaqi Mohatasib-e-Aala, who accepted the same vide order
dated 25-6-2003. The agency/respondent No.3 being aggrieved filed a representation
before the Appellate Authority under Article 32 of the President Order No.1 of 1983,
which was accepted vide order dated 7-4-2004. The petitioner being aggrieved filed
this writ petition.
2. The learned counsel of the petitioner submits that the representation of the
agency/respondent No.3 was accepted by the authority without providing proper
hearing to the petitioner, therefore, same is not sustainable in the eye of law.
3. The learned Deputy Attorney General entered appearance on Court's call. He

submits that the authority has accepted the representation of the agency/respondent
No.3 in the administrative capacity, therefore, providing personal hearing to the
petitioner does not arise. He further submits that complaint of the petitioner was
accepted by the Wafaqi Mohtasib-e-Aala, which was set aside by the authority under
Article 32 of the President Order 1, 1983, therefore, Constitutional petition is not
maintainable. He further submits that Appellate Authority has accepted the
representation of the agency/respondent No.3 after application of mind with reasons,
therefore, the ratio of the Muhammad Tariq Pirzada's case is not attracted. He further
submits that respondent has already filed Intra-Court Appeal and the petitioner before
the Honourable Supreme Court qua the view taken by this Court.
4. I have given my anxious consideration to the contentions of the learned counsel of

the parties and perused the record.
5. It is settled principle of law that principle of natural justice must be read in each
and every statute unless and until the same is prohibited by the wording of the statute
itself. It is pertinent to mention here that Article 32 of the President Order No.1 of
1983 does not contain any prohibition qua providing proper hearing to the petitioner,
therefore, impugned order is not in consonance with the law laid down by the
Honourable Supreme Court in Commissioner of Income Tax v. Fazl-ur-Rehman PLD
1964 SC 410. Mere reading of the impugned order itself reveals that it was passed by
the competent authority without providing proper hearing to the petitioner, therefore,
impugned order is hit by the principle of natural justice, which is not in consonance
with the law laid clown by the superior Courts in the following judgments:
Pakistan Chrome Mines v. The Enquiry Officer PLD 1983 SC 1208
Pakistan and others v. Public at Large PLD 1987 SC 304
University of Dacca v. Zakir Ahmed PLD 1965 SC 90.
The question of aw has already been settled by the Honourable Supreme Court
in the following judgments:
"Federation of Pakistan v. Muhammad Tariq Pirzada" 1999 SCMR 2189
"Federation of Pakistan v. Muhammad Tariq Pirzada" 1999 SCMR 2744
"Mst. Nusrat Imtiaz v. Government of Pakistan" NLR 2000 Civil 54.
It is settled principle of law that judgment of the Honourable Supreme Court is

binding on each and every organ of the State by virtue of Articles 189 and 190 of the
Constitution. Even Obiter Dictum of the Honourable Supreme Court is binding upon
this Court. As mentioned above, the impugned order is hit by the principle of natural
justice, therefore, same is not sustainable in the eye of law. It is also settled principle
Page No. 2 of 3
of law that mere filing of a petition or Intra-Court Appeal, does not mean that the law
declared by this Court is ceased to exist. It is also settled principle of law that our
Constitution is based on trichotomy and is a social binding contract between the organ
of the State and people of Pakistan. By virtue of Article 5(2) of the Constitution,
every body is bound to obey the command of the Constitution as per law laid down by
the Honourable Supreme Court in "Ch. Zahoor Elahi's case" PLD 1975 SC 383.
Article 4 of the Constitution also cast duty upon each and every authority to act in
accordance with law. Law means not only the statute law alone but is used in its
generic sense as connoting all that is treated as law in this country including even the
judicial principles laid down from time to time by the Superior Courts, as the law laid
down by the Honourable Supreme Court in "Manzoor Elahi's case" PLD 1975 SC 66.
6. In view of aforesaid discussion, the order of the Appellate Authority is without

lawful authority and the same is set aside. Meaning thereby the representation filed by
the agency/respondent No.3 before the Appellate Authority shall be deemed to he
pending adjudication. I have taken the aforesaid view in the various Constitutional
petitions, therefore, I am not in a position to deviate from my own view on the well-
known principle of consistency as per law laid down by the Honourable Supreme
Court in "Muzaffar Khan's case" PLD 1959 SC 9. The petitioner is directed to appear
before 'Raja Qamar Sultan, Section Officer, Government of Pakistan, Law Justice and
Human Rights Division in his office at 11-00 a.m. on 14-07-2004, who is directed to
hear the petitioner and the agency or his representative and thereafter send the
representation of the agency/respondent No.3 along with his recommendations to the
Appellate Authority for necessary action. The learned counsel of the petitioner is
directed to hand over copy of the writ petition along with all the annexures to Dr.
Danishwar Malik, learned Deputy Attorney-General for Pakistan, who is directed to
notify the order to the aforesaid Section Officer for necessary action and compliance.
Office is also directed to provide one copy of this order to Dr. Danishwar Malik,
Deputy Attorney-General for Pakistan, for onward transmission to the aforesaid
Section Officer for necessary action and compliance.
With these observations the writ petition is disposed of. Copy Dasti on payment of
usual charges.
M.I./A-221/L Petition accepted.
Page No. 3 of 3
2005 Y L R 1394
[Lahore]
Before Ch. Ijaz Ahmad, J
Shahzada ZAHIR SHAH and 6 others---Petitioners
versus
MUHAMMAD USMAN GHANI and 3 others---Respondents
Writ Petition No.2728 of 2005, decided on 23rd February, 2005.
(a) General Clauses Act (X of 1897)---
----S.24-A---Scope and application of S.24-A, General Clauses Act, 1897---

Provision of S.24-A is procedural in nature, therefore, the same has retrospective
effect.
----Arts.4 & 5(2), 189, 190, 201 & 199---General Clauses Act (X of 1897), S.24-A---
Quasi judicial authority---Public functionaries are obliged to decide the controversy
between the parties after application of mind---Giving of reasons is one of
fundamentals of good administration---Principles.
Zainyar Khan v. The Chief Engineer, WAPDA and others 1998 SCMR 2419;
Tariq Transport Co. v. Sargodha Bhera, Bus Service." PLD 1958 SC (Pak.) 437; N.Q.
Industries v. Mst. Bapai Kaikhusro PLD 1968 Kar. 589; Breen's case (1971) 1 AIR ER
1148; Union of India's case AIR 1974 SC 87; Shaukat Ali and others v. Government
of Pakistan and others PLD 1997 SC 342; Masha Khan v. Selection Committee Bolan
Medical College and 2 others 1981 CLC 634; Raipur Development Authority's case
AIR 1990 SC 1426; Institute of Chartered Accountants of India's case AIR 1987 SC
71; Harinagar Sugar Mills' case AIR 1961 SC 1669; M.P. Industries case AIR 1966
SC 671; Mukarji's case AIR 1990 SC 1984; Collector of Monghyr's case AIR 1975 SC
2226; Bhagat Raj's case AIR 1977 SC 567; Mohinder Singh Gill's case AIR 1978 SC
851; Neelima Misra's case AIR 1990 SC 1402; Sudarshan Trading Company's case
AIR 1989 SC 890; Neelkantan and Brother's case AIR 1988 SC 2045 and Padfield's
case (1969) Vol. 1 All E.R. 694 ref.
It is the duty and obligation of public functionaries to decide the controversy

between the parties after application of mind as is envisaged by Article 4 of the
Constitution read with Article 5(2) of the Constitution and section 24-A in the
General Clauses Act.
No body should be penalized by inaction of public functionaries.
The giving of reasons is one of fundamentals of good administration. The

condition to record reasons introduces clarity and excludes arbitrariness and satisfies
the party concern against whom order is passed. To provide a safeguard against the
arbitrary exercise of power by the public functionaries the condition of recording
reasons is imposed on them, after addition of section 24-A in the General Clauses Act.
If the statute requires recording of reasons, then it is statutory requirement and
therefore, there is no scope for further inquiry. But even when statute does not impose
such an obligation, it is necessary for quasi judicial authority to record reasons as it is
the only visible safeguard against the possible injustice and arbitrariness and affords
protection to the person who is adversely affected. The reasons are the links between
materials on which certain conclusions are based and actual conclusions. They
disclose how the mind is applied to the subject-matter for a decision, whether it is
purely administrative or quasi-judicial. They should reveal rational nexus between the
facts considered and conclusions reached. Only in this way can opinions or decisions
recorded be shown to be manifestly just and reasonable.
Page No. 1 of 8
Courts insist upon disclosure of reason in support of order on the following
grounds:-
(a) the party aggrieved has the opportunity to demonstrate before the appellant, or
revisional Court that the reasons which persuaded the authority to reject his case were
erroneous;
(b) the obligation to record reasons operates as a deterrent against possible

arbitrary action by executive authority invested with judicial power; and
(c) it gives satisfaction to the party against whom the order is made.
The rule requiring reasons to be given in support of order is, like principle of
audi alteram partem, a basic principle of natural justice which must inform every
quasi judicial process and this rule must be observed in its proper spirit and mere
pretence of compliance with it would not satisfy the requirement of law. State
functionaries are expected to act fairly and justly, in manner which should not give to
any one any cause of complaint on account of discriminatory treatment or otherwise.
The aforesaid principle of law is founded on the premises that the public
functionaries providing authority from or under the law, are obligated to act justly,
fairly, equitably, reasonably without any element of discrimination within parameters
of law as clearly applicable in a given situation. The deviation, if of any substance,
can be corrected through the appropriate order under Article 199 of the Constitution.
The public functionaries are duty bound to pass the order by careful application of
relevant laws to the facts of a case. Further the conclusions that flow as a result of this
process should manifest themselves by proper application of mind.
Law is not confined to statue law alone but is used in its generic sense as
connoting all that is treated as law in this country including even the judicial
principles laid down from time to time by the Superior Courts.
Law always gives guidance to only law abiding citizens. In fact awareness has
been given to the world 1400 years ago by Almighty Allah in the Holy Book Qura'n.
Almighty Allah in Sura Rehman warned the human beings not to disturb balance in
any sphere of life. Otherwise destruction is must. The aforesaid command is
embodied in Article 5(2) of the Constitution that everybody is bound to obey the
command of the Constitution.
The public functionaries are also duty bound to act in accordance with law in
view of Article 4 read with Articles 189, 190 and 201 of the Constitution. Meaning
thereby to act within the framework of law and Constitution as the law laid down by
the Supreme Court.
Laws are made not to make them merely on the statute book which are framed
to act upon them which is in consonance with the Holy Quran as enshrined in Sura
Baqra. It is not only the duty of the Courts to provide justice to the people of Pakistan
but it is the duty of every organ and functionary to provide justice by discharging
his/its duties in accordance with law without fear, favour and nepotism. In case the
Tribunal constituted under the law would decide the cases after application of mind
then the workload of the Court shall be reduced automatically and people will be
happy and prosperous and will avoid to come to knock at the doors of the Courts. This
purpose could be achieved only and only in case everybody should work according to
law after application of mind putting himself in place of the aggrieved person then
nobody can decide the matter against his conscience.
----Art.199---Constitutional jurisdiction of High Court---Scope---Where the Authority

has decided the controversy between the parties under statutory power, and if it is an
administrative order, even then it is open to review by the High Court.
(d) General Clauses Act (X of 1897)---
Page No. 2 of 8
----S. 24-A---"Speaking order"---Law relating to "speaking order" on the basis of
S.24-A, General Clauses Act, 1897 and gist of law, laid down by the superior Courts
recorded.
Zainyar Khan v. The Chief Engineer, WAPDA and others 1998 SCMR 2419;
Tariq Transport Co. v. Sargodha Bhera, Bus Service PLD 1958 SC (Pak.) 437; N.Q.
Industries v. Mst. Bapai Kaikhusro PLD 1968 Kar. 589; Breen's case (1971) 1 AIR ER
1148; Union of India's case AIR 1974 SC 87 and Shaukat Ali and others v.
Government of Pakistan and others PLD 1997 SC 342; Masha Khan v. Selection
Committee Bolan Medical College and 2 others 1981 CLC 634; Raipur Development
Authority's case AIR 1990 SC 1426; Institute of Chartered Accountants of India's case
AIR 1987 SC 71; Harinagar Sugar Mills' case AIR 1961 SC 1669; M.P. Industries
case AIR 1966 SC 671; Mukarji's case AIR 1990 SC 1984; Collector of Monghyr's
case AIR 1975 SC 2226; Bhagat Raj's case AIR 1977 SC 567; Mohinder Singh Gill's
case AIR 1978 SC 851; Neelima Misra's case AIR 1990 SC 1402; Sudarshan Trading
Company's case AIR 1989 SC 890; Neelkantan and brother's case AIR 1988 SC 2045;
Padfield's case (1969) Vol. 1 All E.R. 694; Government of West Pakistan v. Begum
Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14; Ch. Zahoor Ellahi's case PLD
1975 SC 383; Zahid Akhtar's case PLD 1996 SC 530 and Pir Bakhsh v. Chairman
Allotment Committee PLD 1987 SC 145 ref.
The law relating to "speaking order" on the basis of section 24-A in the
General Clauses Act and gist of law laid down by the Superior Courts are as follow:--
(1) Where a statute requires recording of reasons in support of the order, it imposes
an obligation on the adjudicating authority and the reasons must be recorded by the
authority.
(2) Even when the statute does not lay down expressly the requirement of
recording reasons, the same can be inferred from the facts and circumstances of the
case.
(3) Mere fact that the proceedings were treated as confidential does not dispense
with the requirement of recording reasons.
(4) If the order is subject to appeal or revision (including special leave petition
under Article 185 of the Constitution), the necessity of recording reasons is greater as
without reasons the appellate or revisional authority cannot exercise its power
effectively inasmuch as it has no material on which it may determine whether the
facts were correctly ascertained, law was properly applied and the decision was just
and based on legal, relevant and existent grounds. Failure to disclose reasons amounts
to depriving the party of the right of appeal or revision.
(5) There is no prescribed form and the reasons recorded by the adjudicating
authority need not be detailed or elaborate and the requirement of recording reasons
will be satisfied if only relevant reasons are recorded.
(6) If the reasons recorded are totally irrelevant, the exercise of power would be
bad and the order would be liable to be set aside.
(7) It is not necessary to record reasons by the appellate authority when it affirms
the order passed by the lower authority.
(8) Where the lower authority does not record reasons for making an order and the
appellate authority merely affirms the order without recording reasons, the order
passed by the appellate authority is bad.
(9) Where the appellate authority reverses the order passed by the lower authority,
reasons must be recorded, as there is a vital difference between an order of reversal
and an order of affirmation.
(10) The validity of the order passed by the statutory authority must be judged by
the reasons recorded therein and cannot be construed in the light of subsequent
explanation given by the authority concerned or by filing an affidavit. "Orders are not
Page No. 3 of 8
like old wine becoming better as they grow older".
(11) If the reasons are not recorded in support of the order it does not always
vitiate the action.
(12) The duty to record reasons is a responsibility and cannot be discharged by the
use of vague general words.
(13) If the reasons are not recorded, the Court cannot probe into reasoning of the
order.
(14) The doctrine of recording of reasons should be restricted to public law only
and should not be applied to private law, e.g. arbitration proceedings.
(15) The reasons recorded by the statutory authority are always subject to judicial
scrutiny.
(e) Land Acquisition Act (I of 1894)---
----S. 4---Constitution of Pakistan (1973), Art.199--- Constitutional petition---

Acquisition of land---Impugned order had been passed by the Collector without
application of mind and without referring the documents produced by the petitioners
which was not in consonance with the earlier order of the High Court which order
having not been challenged had attained finality---Land Acquisition Collector, in
circumstances, was duty bound to decide the controversy between the parties in terms
of High Court order passed previously---Such order of the Collector was set aside by
the High Court and Collector was directed to decide the matter afresh after
application of mind strictly in accordance with law keeping in view the provisions of
Land Acquisition Act, 1894.
Messrs Mian Fakhar-ud-Din and Mian Zafar Iqbal Kalanauri for Petitioners.
Mian Muzzaffar Hussain for Respondents (L.D.A.) on Court's call.
ORDER
The petitioners have challenged the vires of order of respondent (L.A.C.),

dated 27-12-2004 through this constitutional petition.
2. The learned counsel of the petitioners submits that the respondent No.1 (LAC)
passed the impugned order in violation of parameters prescribed by this Court in the
earlier round of litigation vide order, dated 29-9-2004 passed in Writ Petition
No.13715-2003 along with connected writ petitions. He further submits that the
petitioners have filed various documents before respondent No.1 (LAC) before
deciding the case in terms of direction of this Court, which are at pages Nos.12 to 78,
but the same were not considered by the Land Acquisition Collector in the impugned
order. He further submits that he mentioned this fact in paragraph No.2 of the
impugned order, but respondent No.1 did not discuss and take notice to those
documents in the operative part of the impugned order, therefore, the impugned order
is without lawful authority. He further submits that it is the duty and obligation of
Land Acquisition Collector to decide the controversy between the parties with
reasons. The impugned order itself reveals that the Land Acquisition Collector has
decided the matter without application of mind.
3. The learned legal advisor of the respondents entered appearance on Court's

call, he submits that the impugned order contains reasons. The learned Land
Acquisition Collector has decided the controversy between the parties within
parameters prescribed by this Court. He further submits that the impugned order is in
accordance with policy of the respondents. He further submits that this Court has no
jurisdiction to resolve the disputed question of fact in constitutional jurisdiction. He
further submits that the Land Acquisition Collector has decided the controversy in the
administrative side, therefore, it is not expected from him that he has passed the
impugned order as judicial officer, therefore, he has decided the same after noting,
mentioning and perusing the documents and after spot inspection of the premises in-
Page No. 4 of 8
question, hence, the impugned order is valid and the writ petition is liable to be
dismissed.
4. I have given my anxious consideration to the contentions of learned counsel of

the parties and perused the record.
5. In case, the documents attached with the constitutional petition, contents of

writ petition and impugned order are put in juxtaposition, then it is crystal clear that
the Land Acquisition Collector has decided the controversy between the parties
without judicial application of mind which is condition precedent to decide the
controversy between the parties after application of mind. It is pertinent to mention
here that the public functionaries are deciding the cases without application of mind
that is why the competent legislative authority has added Section 24-A in the General
Clauses Act, which is procedural in nature, therefore, the same has retrospective
effect, as per principle laid down by the Honourable Supreme Court in "Zainyar Khan
v. The Chief Engineer, WAPDA and others" (1998 SCMR 2419). It is the duty and
obligation of public functionaries to decide the controversy between the parties after
application of mind as is envisaged by Article 4 of the Constitution read with Article
5(2) of the Constitution and section 24-A in the General Clauses Act, as per principle
laid down by the Honourable Supreme Court in "Messrs Airport Support Service v.
The Airport Manager, Karachi" (1998 SCMR 2268). It is also settled principle of law
that no body should be penalized by inaction of public functionaries, as per principle
laid down by the this Court in "Ahmed Latif Qureshi v. Controller of Examination.
Board of Intermediate, Lahore" (PLD 1994 Lahore 3). The respondent has decided the
controversy between the parties under statutory power, therefore, even if it is
administrative order, even then it is open to review by this Court, as per law laid
down by the Superior Court in the following judgments:--
"Tariq Transport Co. v. Sargodha Bhera, Bus Service" (PLD 1958 SC (Pak.)
437) and "N.Q. Industries v. Mst. Bapai Kaikhusro" (PLD 1968 Karachi 589).
The respondent has decided the controversy between the parties in the capacity
as Quasi Judicial Authority. Lord Denning in "Breen's case" (1971) 1 AIR ER 1148)
says, "the giving of reasons is one of fundamentals of good administration." The
condition to record reasons introduces clarity and excludes arbitrariness and satisfies
the party concern against whom order is passed. To provide a safeguard against the
arbitrary exercise of power by the public functionaries the condition of recording
reasons is imposed on them, after addition of section 24-A in the General Clauses Act.
It is also settled principle of law that if the statute requires recording of reasons, then
it is statutory requirement and therefore, there is no scope for further inquiry. But
even when statute does not impose such an obligation, it is necessary for quasi
judicial authority to record reasons as it is the only visible safeguard against the
possible injustice and arbitrariness and affords protection to the person who adversely
affected. The reasons are the links between materials on which certain conclusions are
based and actual conclusions. They disclose how the mind is applied to the subject-
matter for a decision, whether it is purely administrative or quasi-judicial. They
should reveal rational nexus between the facts considered and conclusions reached.
Only in this way can opinions or decisions recorded be shown to be manifestly just
and reasonable. In arriving to this conclusion, I am fortified by "Union India's case"
(AIR 1974 SC 87). It is pertinent to mention here that Courts insist upon disclosure of
reason in support of order on the following reasons:-
(a) the party aggrieved has the opportunity to demonstrate before the appellant, or
revisional Court that the reasons which persuaded the authority to reject his
case were erroneous;
(b) the obligation to record reasons operates as a deterrent against possible

arbitrary action by executive authority invested with judicial power; and
(c) it gives satisfaction to the party against whom the order is made.
6. It is also settled principle of law that the rule requiring reasons to be given in
support of order is, like principle of audi alteram partem, a basic principle of natural
Page No. 5 of 8
justice which must conform every quasi judicial process and this rule must be
observed in its proper spirit and mere pretence of compliance with it would not satisfy
the requirement of law as observed in Union India's case supra. It is also settled
principle of law that State functionaries are expected to act fairly and justly, in
manner which should not give to any one any cause of complaint on account of
discriminatory treatment or otherwise was per principle laid down in "Shaukat Ali and
others v. Government of Pakistan and others" (PLD 1997 SC 342). It is pertinent to
mention here that the aforesaid principle of law is founded on the premises that the
public functionaries providing authority from or under the law, are obligated to act
justly, fairly, equitably, reasonably without any element of discrimination within
parameters of law as clear applicable in given situation. The deviation, if any
substance can be corrected through the appropriate order under Article 199 of the
Constitution. It is also settled principle of law that the public functionaries are duty
bound to pass the order by careful application of relevant laws to the facts of a case.
Further the conclusions that flow as a result of this process should manifest by
themselves by proper application of mind, as per law laid down in "Masha Khan v.
Selection Committee, Bolan Medical College and 2 others" (1981 CLC 634).
Reference may also be made to the following judgments:--
Raipur Development Authority's case (AIR 1990 SC 1426), Institute of

Chartered Accountants of India's case (AIR 1987 SC 71), Harinagar Sugar
Mills' case (AIR 1961 SC 1669); M.P. Industries case (AIR 1966 SC 671),
Mukarji's case (AIR 1990 SC 1984), Collector of Monghyr's case (AIR 1975
SC 2226), Bhagat Raj's case (AIR 1977 SC 567), Mohinder Singh Gill's case
(AIR 1978 SC 851), Neelima Misra's case (AIR 1990 SC 1402), Sudarshan
Trading Company's case (AIR 1989 SC 890), Neelkantan and Brother's case
(AIR 1988 SC 2045) and Padfield's case (1969) Vol. 1 All E.R. 694).
The law relating to "speaking order" on the basis of section 24-A in the
General Clauses Act and gist of law laid down by the Superior Courts are as follow:--
(1) Where a statute requires recording of reasons in support of the order, it

imposes an obligation on the adjudicating authority and the reasons must be
recorded by the authority.
(2) Even when the statute does not lay down expressly the requirement of
recording reasons, the same can be inferred from the facts and circumstances
of the case.
(3) Mere fact that the proceedings were treated as confidential does not dispense
with the requirement of recording reasons.
(4) If the order is subject to appeal or revision (including special leave petition
under Article 185 of the Constitution), the necessity of recording reasons is
greater as without reasons the appellate or revisional authority cannot exercise
its power effectively inasmuch as it has no material on which it may determine
whether the facts were correctly ascertained, law was properly applied and the
decision was just and based on legal, relevant and existent grounds. Failure to
disclose reasons amounts to depriving the party of the right of appeal or
revision.
(5) There is no prescribed form and the reasons recorded by the adjudicating
authority need not be detailed or elaborate and the requirement of recording
reasons will be satisfied if only relevant reasons are recorded.
(6) If the reasons recorded are totally irrelevant, the exercise of power would be
bad and the order would be liable to be set aside.
(7) It is not necessary to record reasons by the appellate authority when it affirms
the order passed by the lower authority.
(8) Where the lower authority does not record reasons for making an order and the
appellate authority merely affirms the order without recording reasons, the
Page No. 6 of 8
order passed by the appellate authority is bad.
(9) Where the appellate authority reverses the order passed by the lower authority,
reasons must be recorded, as there is a vital difference between an order of
reversal and an order of affirmation.
(10)The validity of the order passed by the statutory authority must be judged by
the reasons recorded therein and cannot be construed in the light of subsequent
explanation given by the authority concerned or by filing an affidavit. "Orders
are not like old wine becoming better as they grow older".
(11) If the reasons are not recorded in support of the order it does not always vitiate
the action.
(12)The duty to record reasons is a responsibility and cannot be discharged by the

use of vague general words.
(13)If the reasons are not recorded, the Court cannot probe into reasoning of the
order.
(14)The doctrine of recording of reasons should be restricted to public law only

and should not be applied to private law, e.g. arbitration proceedings.
(15)The reasons recorded by the statutory authority are always subject to judicial
scrutiny.
It is also settled principle of law that law is not confined to statue law alone but is
used in its generic sense as connoting all that is treated as law in this country
including even the judicial principles laid down from time to time by the Superior
Courts as per law laid down in "Government of West Pakistan v. Begum Agha Abdul
Karim Shorish Kashmiri" (PLD 1969 SC 14). It is settled principle that law always
gives guidance to only law abiding citizens. In fact awareness has been given to the
world 1400 years ago by Almighty Allah in the Holy Book Qur'an. Almighty Allah in
Sura Rehman warned the human beings not to disturb balance in any sphere of life.
Otherwise destruction is must. The aforesaid command is embodied in Article 5(2) of
the Constitution that everybody is bound to obey the command of the Constitution as
the law laid down by the Honourable Supreme Court in Ch. Zahoor Ellahi's case (PLD
1975 SC 383). The public functionaries are also duty bound to act in accordance with
law in view of Article 4 read with Articles 189, 190 and 201 of the Constitution.
Meaning thereby to act within the framework of law and Constitution as the law laid
down by the Supreme Court in Zahid Akhtar's case (PLD 1995 SC 530). Laws are
made not to make them merely on the statute book which are framed to act upon them
which is in consonance with the Holy Qur'an as enshrined in Sura Baqra. It is not only
the duty of the Courts to provide justice to the people of Pakistan but it is the duty of
every organ and functionary to provide justice by discharging his/its duties in
accordance with law without fear, favour and nepotism. In case the Tribunal
constituted under the law would decide the cases after application of mind then the
workload of this Court shall be reduced automatically and people will be happy and
prosper and avoid to come to knock the doors of the Courts. This purpose could be
achieved only and only in case everybody should work according to law after
application of mind putting himself in place of the aggrieved person then nobody can
decide the matter against his conscience.
7. The impugned order as mentioned above, is passed by the Land Acquisition

Collector, without application of mind and without referring the documents produced
by the petitioners, in the impugned order, which is not in consonance with earlier
order passed by this Court in Writ Petition No.13715-2003 along with connected writ
petitions vide order, dated 29-9-2004. It is admitted fact that order of this Court has
not been challenged by any of the parties before any higher forum, therefore, the same
is final between the parties on the well known principle of res judicata, as per
principle laid down by the Honourable Supreme Court in "Pir Bakhsh v. Chairman,
Allotment Committee" (PLD 1987 SC 145), therefore, the Land Acquisition Collector
is duty bound to decide the controversy between the parties in terms of order, dated
Page No. 7 of 8
29-9-2004 passed in the aforesaid writ petitions.
8. In view of what has been discussed above, the impugned order, dated
27-12-2004 passed by LAC, is set aside. Therefore, the petitioners are directed to
appear before the Land Acquisition Collector in his office at 11-00 a.m. on 3-3-2005,
who is directed to decide the matter of the petitioners afresh after application of mind
strictly in accordance with law keeping in view of the provisions of Land Acquisition
Act, as expeditiously as possible.
With these observations, the writ petition is disposed of. Copy dasti on
payment of usual charges.
M.B.A./Z-68/L Order accordingly.
Page No. 8 of 8
2004 C L D 92
[Lahore]
Before Ch. Ijaz Ahmad and Bashir A. Mujahid, JJ
NAWAZISH LATIF BHATTI---Appellant
Versus
ALLIED BANK OF PAKISTAN, LTD.,---Respondent
Executive First Appeal No.356 of 2003, heard on 18th September, 2003.
(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----S.19---Stay of execution proceedings in view of incentive scheme announced by the

Bank---Validity---Such Scheme was of a nature of a contemplated adjustment by lending
Bank with a borrower under directive of the State Bank---Execution proceedings could
not be stayed only in contemplation of a settlement.
(b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----S.19---Civil Procedure Code (V of 1908), O. XXI, Rr. 54 & 66--Execution of

decree---Attachment and sale of property--Judgment-debtor, after his service by
affixation, executed agreement in favour of Bank, but he failed to satisfy decree as per its
terms---Banking Court dismissed objection petition of judgment-debtor without requiring
Bank to file reply thereto--Validity---Process-Server's report revealed that the notice had
been pasted at outer door of the judgment-debtor---Provision of O.XXI, R.54 was not
mandatory in nature and substantial compliance thereof had ,been made---Banking Court,
in view of conduct of judgment-debtor, was justified not to direct Bank to file reply to
objection petition---High Court dismissed appeal in circumstances.
Narsingh Das v. Mangal Dubev and others ILR 5 All. 163; Gauri v. UDE and others AIR
1942 Lah. 153; Messrs Chawla International v. Habib Bank Ltd. 2003 CLD 956; Gopal
Chandra v. Ramesh Chandra and another PLD 1961 Dhaka 492; Sikandar Ali v. The State
1999 MLD 212; Shaukat Ali Mian v. Trust Leasing Corporation through its Chief
Executive and 4 others 2002 CLD 1071 and Messrs Ripple Jewellers Pvt. Ltd. v. First
Women Bank 2003 CLD 1318 ref.
Ghulam Rasool's case PLD 1971 SC 376; Gopal Lal Chandra v. Amulya Kumar AIR
1933 Cal. 234; State Life Insurance Corporation of Pakistan Ltd. v. Dr. A.M.J. Sherazee
and 9 others PLD 1983 Kar. 112 and Syed Ashad Ali Sadiq v. Pakistan International
Airlines Corporation 1992 CLC 1323 rel.
(c) Civil Procedure Code (V of 1908)---
----O.XXI, R.54---Provision of O.XXI, R.54, C.P.C., not mandatory in

nature---Substantial compliance thereof would be sufficient.
State Life Insurance Corporation of Pakistan Ltd. v. Dr. A.M.J. Sherazee and 9 others
PLD 1983 Kar. 112 and Syed Ashad Ali Sadiq v. Pakistan International Airlines
Corporation 1992 CLC 1323 rel.
(d) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----Preamble---Object of the Ordinance.
Object of enacting Bank Laws is to provide speedy measures for recovery of outstanding
loans of Banking Companies as the recovery suits remained pending in Civil Court for
years together. The special law has been enacted to improve the economical situation,
Page No. 1 of 6
which has arisen in the country on account of default in payment of loans and finances by
the borrowers and customers of Banking Companies.
(e) Interpretation of statutes---
---- Special law would exclude general law.
Zia-ur-Rehman's case PLD 1973 SC 49; Ahmad Mureed Malik v. Presiding Officer,
Banking Court 2002 CLD 577 and National Bank of Pakistan v. Effef Industries 2002
CLD 1431 rel.
(f) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----S.19---Civil Procedure Code (V of 1908), S.51---Execution of decree---Mode

of---Executing Court is well within its right to adopt any mode for execution of decree.
(g) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---
----S.19---Execution of decree---Mode of---Court has discretion to execute decree either

in view of provisions of C.P.C., or in any other mode, which Court may deem fit.
Agha Atta Ullah's case 2002 CLD 1550 rel.
(h) Constitution of Pakistan (1973)---
----Arts.189, 190 & 201---Precedent---Judgment of High Court, whether reported or

unreported would have binding effect.
Azam Ali and others v. The Custodian of Evacuee Property, West Pakistan, Lahore v.
Mst. Khem Bai alias Ghulam Fatima PLD 1968 Lah. 148 rel.
Syed Waqar Hussain Naqvi for Appellant.
Azhar Elahi for Respondent.
Date of hearing: 18th September, 2003.
JUDGMENT
CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that
the appellant secured loan from the respondent-Bank and an agreement was also executed
between the appellant and respondent-Bank. According to the terms and conditions of the
agreement the appellant has to pay loan to the respondent-Bank in easy instalments. At
the time of sanctioning the loan in favour of the appellant by the respondent-Bank, the
appellant had executed various documents in favour of the respondent-Bank including
mortgage of the property in question. The appellant failed to discharge its liabilities in
terms of the agreement. The respondent-Bank being aggrieved filed suit for recovery of
Rs.1,44,35,907.25 in the Banking Court No.4, Lahore. The Banking Court decreed the
suit against the appellant vide judgment and decree dated 7-2-2000. The respondent-Bank
filed execution petition before the Banking Court against the appellant with the prayer
that decree be satisfied through the sale of the following properties as is evident from
schedule attached with the file as Annex-B:--
(1) Factory Nice & Easy 'Fashion Pvt. Limited, 8 Kanals Khasra
Nos.3905/7-K-4M-3883/16-M Khatooni No.10/15, Mauza Ludhar, Tehsil Cantt.,
Lahore.
(2) Bungalow No.233-R, Phase-II, two Kanals LCCHS, Lahore Cantt., Lahore.
The appellant filed two objection petitions before the Banking Court. The objection
petitions of the appellant were dismissed by the Banking Court vide order dated
22-7-2003 in limine without directing the respondent-Bank to file reply to the objection
Page No. 2 of 6
petitions. The Banking Court vide order dated 21-7-2003 approved the auction schedule
to the extent of Bungalow No.233-R, Phase-II, mentioned above, whereas the Banking
Court vide order dated 22-7-2003 directed to sell the property i.e. Bungalow No.233-R,
Phase-II, Lahore. The appellant being aggrieved filed this appeal.
Learned counsel for the appellant submits that the Banking Court erred in law to assume
the jurisdiction and pass the impugned order merely on presumptions and surmises in
violation of the mandatory provisions of law. He further submits that the learned Banking
Court passed the impugned order in haste without directing the decree-holder to file reply
to the objection petition whereas it is statutory duty of the Banking Court to pass the
impugned orders after applying its judicial mind, but the learned Banking Court passed
the impugned orders as is evident from the contents of the impugned orders on the basis
of surmises and conjectures in a mechanical manner without adverting to the objection
raised by the appellant in the objection petitions filed by him before the Executing Court,
therefore, the impugned orders were passed by the Banking Court in violation of
fundamental principle of fair-play. He further submits that learned counsel for the
respondents had placed on record order of this Court dated 16-7-2003 which was not
attested copy, therefore, the learned Banking Court erred in law to dismiss the objection
petition of the appellant on the basis of aforesaid order of this Court dated 16-7-2003. He
further urges that no notice was served upon the appellant prior to drawing up the
proclamation as required by the mandatory provisions of Order XXI, rule 66, C.P.C. He
further submits that market value of the property in question is more than Rs.1,50,00,000
which would be sold at a low price than its market value which is against the spirit of
justice. He further urges that learned Banking Court passed the impugned order without
adverting to the mandatory provisions' of Order XXI, rules 66 and 54, C.P.C. which are
mandatory in nature, therefore, judgment of the learned Banking Court is non-existent in
the eye of law. He further urges that proper particulars of the property are not mentioned
in the schedule but this fact was also not considered by the Banking Court at the time of
dismissing the objection petition of the appellant. He further urges that the appellant has
already filed application under Circular No.29 to the State Bank of Pakistan which is
pending adjudicating before the Competent Authority but this fact was also not
considered by the learned Banking Court in its true perspective. He further urges that
respondent-Bank had mentioned incorrect amount in the execution petition in violation of
the amount mentioned in the judgment and decree of the Banking Court. He summed up
his arguments that the order of the learned Banking Court is in violation of the law laid
down by the superior Courts. In support of his contentions he relied upon the following
judgments:--
(1) Narsingh Das v. Mangal Dubev and others ILR 5 Allahbad 163.
(2) Gauri v. UDE and others AIR 1942 Lahore 153.
(3) Messrs Chawla International v. Habib Bank Ltd. 2003 CLD 956.
(4) Gopal Chandra v. Ramesh Chandra and another PLD 1961 Dhaka 492.
(5) Sikandar Ali v. The State 1999 MLD 212.
(6) Shaukat Ali Mian v. Trust Leasing Corporation through its Chief Executive
and 4 others 2002 CLD 1071.
(7) Messrs Ripple Jewellers Pvt. Ltd. v. First Women Bank 2003 CLD 1318.
Learned counsel for the respondent-Bank submits that decree was passed by the Banking
Court against the appellant on 7-2-2000. The appellant filed First Appeal from Order
No.394 of 2002 before this Court which was dismissed vide order dated 4-9-2002. The
appellant failed to satisfy the decree. The respondent-Bank filed execution petition before
Executing Court on 28-6-2000. The Executing Court directed the appellant to file reply to
the application and also directed to provide surety bond or personal guarantee. He further
submits that the Executing Court passed the order to send notice to the appellant vide
order dated 29-6-2000, for 18-7-2000. He further submits that notice was sent to the
appellant but the appellant was not present at his home. The family members of the
Page No. 3 of 6
appellant refused to receive the notice. Notice was pasted at the outer door of the
appellant as is evident from the reports of the Process Server dated 14-7-2000 which are
at pages 106/107 and dated 17-7-2000 at pages 112 and 114 in Civil Miscellaneous
No.1250-C of 2003. He further urges that property in question has already been
mortgaged with the respondent, therefore, Order XXI, rule 54, C. P. C. is not attracted in
the present case. He further submits that during the pendency of the execution petition,
the appellant executed an agreement with the respondent-Bank on 23-9-2002 which
clearly envisaged that the appellant had knowledge of the execution proceedings and
respondent-Bank did not pursue the execution proceedings in view of the agreement
dated 23-9-2002 for one year. He further urges that reserve price was finalized in view of
the order passed by the Division Bench on 4-9-2002 on the appeal filed by the appellant
before this Court. He further urges that mere filing an application under Circular No.29
before the State Bank of Pakistan for adjustment cannot be provided excuse to the
appellant not to satisfy the decree which was passed by the competent Court.
We have given our anxious consideration to the contentions of learned counsel of the
parties and perused the record ourselves.
It is better and appropriate to mention the basic facts in chronological order to resolve the
controversy between the parties. The respondent-bank filed suit for recovery against the
appellant which was decreed vide judgment and decree dated 7-2-2000. The
respondent-Bank filed execution petition before the Executing Court on 28-6-2000. The
Executing Court passed order to issue notice to the appellant/ defendant in the execution
petition. Notices were issued to the appellant by the Banking Court which are attached at
pages 105 to 123. The report of the Process-Server dated 14-7-2000 reveals that the
appellant was not present in his house. The remaining family members refused to receive
the notice. The notice was pasted on the outer door of the appellant which is at page 106
of Civil Miscellaneous No. 1250-C of 2003. The report of the Process-Server dated
17-7-2000 to the same effect is at' pages 110 to 114 to show that service of the appellant
was not effected as the appellant was not present in his house. The particulars of the
property in question are also mentioned in `Fard Taleeqa' filed by the judgment-debtor
which is at page 116 of the said application. The Executing Court authorized to appoint
the Security Guard at the mortgaged factory premises vide order dated 15-7-2000. The
report of the Process-Server dated 18-9-2002 also reveals that servant of the appellant
refused to receive the notice. The report of the Process-Server to the same effect also at
pages from 121 to 123. The appellant and respondent also executed agreement dated
23-9-2002 which is at page 78 with the following conditions:--
The first payment of Rs.1 million shall be made today (24-9-2002) into the
Court-room to the bank by the judgment-debtor (party of second part) given to
him by the purchaser (party of third part).
The second payment of Rs.1 million shall be made on 2nd of January, 2003 by the
same way.
Rest of the complete payment of Rs.12 million shall be paid on 15-4-2003 in the
same manner.
The respondent-Bank did not pursue the execution proceedings in view of the aforesaid
agreement for one year. The appellant failed to honour his commitment in terms of the
aforesaid agreement dated 23-9-2002. The respondent-Bank was compelled by the
circumstances to revive the execution proceedings before the Banking Court. The
appellant filed objection petition under section 47 read with Order XXI, rules 66 and 54,
C.P.C. before Executing Court on 22-7-2003. The Executing Court dismissed the same
vide order dated 22-7-2003 which is impugned through this appeal.
The contention of learned counsel of the appellant that the appellant has filed application
before the State Bank under Circular 29 has no force in view of the order passed by the
Division Bench of this Court in First Appeal from Order No.171 of 2003 on 16-7-2003
and laid down the following principle:--
Page No. 4 of 6
"The incentive scheme is a nature of a contemplated adjustment by a lending
Bank with a borrower under the directive of the State Bank of Pakistan. We are of
the view that execution proceedings, cannot be stayed only in contemplation of a
settlement. We see no merits in this appeal which is, accordingly, dismissed."
The second contention of learned counsel of the appellant that Banking Court initiated
proceedings against the appellant without issuing notice to the appellant under Order
XXI, rules 66 and 54, C P.C. have no force in view of the report of the Process-Server
which is mentioned above. The appellant wants benefit of his own misdeeds as the
appellant did not receive the notice and did not agitate the matter on this, round on any
canon of justice as the report of the Process-Server reveals that the notice was pasted at
the outer door of the appellant coupled with the fact that the appellant himself executed
agreement with the respondent-Bank on 23-9-2002 on the well-known principle of
estoppel and waiver as the law laid down by Honourable Supreme Court in Ghulam
Rasool's case reported as PLD 1971 SC 376 even otherwise compliance of the said
provision has been made in view of the law laid down in Gopal Lal Chandra v. Amulya
Kumar AIR 1933 Calcutta 234 wherein the relevant observation is as follows:--
"Knowledge may some time be sufficient to impute notice in the circumstance of

such as may reasonable require the person having such knowledge to enquire
about the particulars."
The judgment relied upon by learned counsel for the appellant i.e. Sikandar Ali's case
supra 1999 MLD 212 is not relevant. It is a petition under section 497, Cr.P.C. In view of
conduct of the appellant the Executing Court was justified not to direct the
respondent-Bank to file reply of the objection petition coupled with the fact that there
was sufficient material before the Executing Court as is evident from the documents
attached by the appellant alongwith Civil Miscellaneous No.1250-C of 2003 under the
direction of this Court. The judgment relied upon by learned counsel for the appellant i.e.
Shaukat Ali Mian's case 2002 CLD 1031 is distinguished on facts and law. In the cited
case the objector claimed the property on the basis of agreement to sell and secured the
possession of the property in the cited case in terms of agreement to sell, therefore, the
Division Bench has decided the case on the peculiar circumstances of the cited case.
Similarly Messrs Ripple Jeweller's case 2003 CLD 1318 is also distinguished on facts
and law as in the present case 'notice was issued under Order XXI, rule 66, C.P.C. to the
appellant as is evident from the report of the Process-Server mentioned above coupled
with the contents of agreement dated 23-9-2003 reproduced above. Order XXI, rule 54,
C.P.C. is not mandatory in nature and substantial compliance has been made as is evident
from the impugned order itself in view of para.4, therefore, contention of learned counsel
of the appellant has no force in view of the law laid down in State Life Insurance
Corporation of Pakistan Ltd. v. Dr. A.M.J. Sherazee and 9 others PLD 1983 Karachi 112
and Syed Ashad Ali Sadiq v. Pakistan International Airlines Corporation 1992 CLC 1323.
The contention of learned counsel for the appellant qua the reserve price has no force as
the matter has been finalized between the parties on this point in First Appeal from Order
No.394 of 2002 vide order dated 4-9-2002 by the Division Bench which is available at
page 205 of aforesaid civil Miscellaneous. It is pertinent to mention here that the object
of enacting the Banks laws is to provide speedy measures for recovery of outstanding
loans of the Banking Companies as the recovery suits renamed pending in the Civil
Courts for years together. The special law was enacted to improve the economical
situation which had arisen in the country on account of default in payment of the loans
and finance by the, borrowers and customers of the Banking Companies. It is also settled
law that special law excludes the general law as laid down by the superior Courts in the
following judgments:--
Zia-ur-Rehman's case PLD 1973 SC 49.
Ahmad Mureed Malik v. Presiding Officer, Banking Court 2002 CLD 577.
National Bank of Pakistan v. Effef Industries 2002 CLD 1431.
Page No. 5 of 6
In view of the aforesaid principle of law the judgment relied upon by learned counsel of
the appellant Gopal Chandra v. Ramesh Chandra and another PLD 1961 Dhaka 492 and
Narsingh Das v. Mangal Dubev and others ILR 5 Allahbad 164 have no relevancy in view
of special and peculiar circumstances of this case on the well-known principle of estoppel
and waiver as mentioned above. It is also settled principle of law that Executing Court is
well within its right to adopt any mode for execution of the decree. It is also settled
principle of law that Executing Court has been given discretion to execute the decree in
view of the provisions of the Civil Procedure Code or in any other manner it may deem
fit as the law laid down by the Division Bench of Karachi High Court in Agha Atta
Ullah's case 2002 CLD 1550. It is also settled principle of law that reported or unreported
judgment of this Court has binding effect as the law laid down by this Court in PLD 1968
Lahore 148 in view of Articles 201, 189 and 190 of the present Constitution which is
equivalent to Article 63 of 1962 Constitution as held in Azam Ali and others v. The
Custodian of Evacuee Property West Pakistan, Lahore v. Mst. Khem Bai alias Ghulam
Fatima PLD 1968 Lahore 148.
In view of what has been discussed above, we do not find any infirmity or illegality in the
impugned orders of the Executing Court, therefore, the appeal has no merits and the same
is dismissed.
S.A.K./N-353 /L Appeal dismissed.
Page No. 6 of 6
2001 Y L R 1
[Lahore]
Before Ch. Ijaz Ahmed and Mian Saqib Nisar, JJ
PAKISTAN LAWYERS FORUM---Appellant
versus
General PARVEZ MUSHARRAF and 3 others---Respondents
Intra-Court Appeal No.335 in Writ Petition No.6019 of 2001, decided on 3rd May, 2001.
(a) Constitutional History of Pakistan---
---- Applicability of doctrine of necessity--Dissolution and restoration of Assemblies---

Assumption of powers by military rulers--Role of judiciary in stabilizing the political
situations in the country discussed.
Syed Zafar Ali Shah's case PLD 2000 SC 869; Federation of Pakistan and others v.
Moulvi Tamiz-ud-Din PLD 1955 FC 240; Yousaf Patel's case PLD 1955 FC 38; PLD
1959 FC 435; State v. Dosso and 3 others PLD 1958 SC 533; Asma Jillani's case PLD
1972 SC 139; Haji Saif Ullah's case PLD 1989 SC 166; Kh. Ahmed Tariq Rahim's case
PLD 1992 SE 646; Mian Nawaz Sharif's case PLD 1993 SC 473; Mahmood Khan
Achakzai's case PLD 1997 SC 426 and Mohtarma Benazir Bhutto's case PLD 1998 SC
338 ref.
----Arts. 189, 190 & 199---Petitioner had filed Constitutional petition before High Court
wherein he assailed the validity of military regime which had already been declared to be
legal by the Supreme Court in Syed Zafar Ali Shah's case, reported as PLD 2000 SC 869
and was reaffirmed by Supreme Court in review petition filed against the said
judgment---Effect---Judgment of Supreme Court was binding on each and every organ of
the State by virtue of Arts. 189 & 190 of the Constitution---Petitioner, in proceedings
before High Court, sought review of the judgment of the Supreme Court which was
beyond the jurisdiction of High Court---High Court, therefore, was justified in dismissing
the Constitutional petition in circumstances.
Syed Zafar Ali Shah's case PLD 2000 SC 869 ref.
A. K. Dogar for Appellant.
ORDER
The appellant has filed Writ Petition No.6019 of 2001 with the following prayer:---
"Most humbly and respectfully the present petitioners submit and pray that God Almighty
has entrusted the learned Judges of this august Court with sagacity and wisdom to act in
the luminous tradition of the Muslims of the early days of the Holy Prophet of Islam and
to act in the light of the facts and circumstances narrated in the paras above and the
principle that 'welfare of the people is the supreme law' be applied and the respondent
No.l be directed to wrap up his 'good governance' and to mind the job for which he was
trained and is being paid from the public exchequer.
(b) That this learned Court be pleased to declare that the General has failed as a
self-appointed leader of the masses and after the expiry of 18 months his dictatorship has
given nothing to this country except increased poverty, disappointment, depression,
shame and excruciating sense of loss of national self-respect which is increasing with
every passing day.
Page No. 1 of 11
(c) That the General has no valid excuse to continue to stay and to add to the misery of
the people of this country because he has not taken even a small step after long period of
1-1/2 years towards the achievement of his "agenda" on account of his inherent
incapability, lack of technical know-how and inexperience in civilian affairs.
(d) That this learned Court be pleased to declare that it is in the interest of national
integrity that the General is required to roll back his extra-Constitutional rule, retire to the
barracks, withdraw PCO-1 and proclamation of emergency and eventually the Parliament
shall stand restored, the Government of Pakistan will be put in place and the General
shall submit himself to the Constitutional institutions of a democratic Pakistan."
The learned Single Judge dismissed the writ petition vide impugned 6rder dated
18-4-2001, hence the present appeal.
2. The learned counsel of the appellant submits that learned Single Judge, was erred in
law to dismiss the writ petition. He further submits that impugned order is not in
accordance with the law laid down by the Honourable Supreme Court in Syed Zafar Ali
Shah's case (PLD 2000 SC 869). The Hon'ble Supreme Court has laid down principle in
the aforesaid case that superior Courts have ample power of judicial review qua the
action taken by the present regime. He heavily relied upon following passage of the
aforesaid judgment supra of the Honourable Supreme Court in Syed Zafar Ali Shah's
case:
"6(vi) That the superior Courts continue to have the power of judicial review to judge the
validity of any act or action of the Armed Forces, if challenged, in the light of the
principles underlying the law of State necessity as stated above 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 legislative
instrument enacted by the Chief Executive and/or any order issued by the Chief
Executive or by any person or authority acting on his behalf."
(vii) That the Courts are not merely to determine whether there exists any nexus between
the orders made, proceedings taken and acts done by the Chief Executive or by any
authority or person acting on his behalf, and his declared objectives as spelt out from his
speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but
such orders made, proceedings taken and acts done including the legislative measures,
shall also be subject to judicial review by the superior Courts,"
"National Assembly is the highest representative body, which reflects the will and
aspirations of the people of Pakistan. Similar is the status of a Provincial Assembly in a
Province, Senate, being a symbol of unity of the federating units has its own utility for
the country as a whole. It is, therefore, of utmost importance that the impugned
suspension of the above, democratic institutions is examined with great care and caution,
otherwise it would adversely affect the democratic processes in the country, which may
cause instability, impair the economic growth and resultantly prove detrimental to the
general well-being of the people. "
The learned counsel of the appellant on the basis of the aforesaid paragraphs of the
Honourable Supreme Court submits that Honourable Supreme Court has validated action
of the respondent with aforesaid conditions. Since the action of the respondent is in
derogation of the aforesaid condition precedent prescribed by the Honourable Supreme
Court in the said judgment, therefore, High Court under Article 199 of the Constitution
has jurisdiction to entertain the Constitutional petition and analyses this situation whether
the actions of the present regime are in accordance with the aforesaid judgment of the
Honourable Supreme Court or not. This fact was not considered by the learned Single
Judge in the impugned order. He further submits that if all the acts done by the present
regime are found invalid and do not stand the test of the principle of' State necessity.
Consequently, result would be that the military take over was even though held valid by
the Supreme Court its continuity cannot be sustainable in the eyes of law. He further
submits that heavy duty is cast upon the Courts to determine whether there exists any
nexus between the acts of the present regime and declared objectives on the touchstone of
necessity. He further submits that involvement of Army in civil affairs runs a great risk of
Page No. 2 of 11
politicizing which would not be in national interest. He further highlighted that the
historical Constitutional background qua abrogating Constitution of the country since
1958 by the military personnel and consequently by this act of the military personnel, the
country would run in losses in each sphere of life. He further -submits that Civilian Rule
in the Country must be restored within shortest possible time as is held by the
Honourable Supreme Court in Syed Zafar Ali Shah's case. He further submits that present
regime failed to achieve object as is borne out from the speeches of the Chief Executive
dated 13th and 17th October, 1999. He further submits that law of necessity and the
principle of welfare demand that Chief Executive should hand over the charge of the
affairs of the country to the Civilians who are the real sovereign of the country. He further
submits that matter pertains to public importance but this fact was not considered by the
learned Single Judge in the impugned order. He further submits that economy of country
is moving in reverse direction on account of the inaction of present regime as highlighted
by appellant in ground (ii) of the contents of the writ petition. He further submits that the
Country is suffering lot on account of slow decision making policy by the present regime
as is highlighted by the appellant in ground (iii) of the writ petition; that excessive
increase in public expenditure and Civil Secretariat has gone up by Rs.14 million for the
last one year as is evident from ground (iv) of writ petition of the appellant. He further
read the contents of grounds of writ petition from grounds (v) to (xxvi) of writ petition
filed by appellant which consist of following headings:-
(I) lacking of technical in economy and foreign affair.
(II) Favouritism in favour of Army Officers;
(III) Slow decision making policies;
(IV)Excessive increase in public expenditure and Punjab Civil Secretariat expenses gone
up by Rs. 14 billion for last one year;
(V) Lack of Technical know-how in Economic and Foreign Affairs;
(VI) Favouritism in favour of officers;
(VII) No control on bureaucracy and Monitoring Teams are useless and mere burden;
(VIII) Flight Of capital and resources;
(IX) No foreign investment;
(X) Political uncertainty has caused economic instability.
(XI) One-sided accountability no accountability of Army and Judiciary.
(XII) Grievance of smaller provinces have increased;
(XIII) Devolution Plan unacceptable to small provinces;
(XIV) Rise in price of kitchen items and IMF loan have added to poverty;
(XV) Internationally country -is more isolated than ever before.
(XVI) Trade deficit 60% higher than the last fiscal year;
(XVII) Rising unemployment:
(XVIII) Law and order situation worse;
(XX) Generals enjoying perks and privileges "General of Pakistan richest in the world"
says American weekly.
(XXI) Press Not Free.
Page No. 3 of 11
(XXII) Foreign Exchange Reserves Lowest Below 1.1 Billion.
(XXIII) Taxation base decreased number of taxpayers less than before.
(XXIV) Increase in oil imports 63
(XXV) Present economic policies considered simple murder by economists and industry
leaders (Annexure AF-B).
(XXVI) Nawaz Deal Mockery of process of accountability Generals credibility all time
low.
(XXVII) Welfare lies Dead in the Grave.
Learned counsel of the appellant further submits that all the aforesaid grounds taken by
the appellant in the writ petition as well as in I.C.A. are supported by news items
appeared in the different Daily newspapers and articles of eminent jurist/technocrats in
their field, published in various newspapers. The Honourable Supreme Court has given
validation to the action of the respondent in Syed Zafar Ali Shah's case by placing
reliance on the news item or articles written by different technocrats coupled with the
speeches of the respondent No. 1, dated 13th and 17th October, 1999. In support of his
contention, he relied upon various passages of the judgment of the Honourable Supreme
Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869). The relevant passage relied
upon by the learned counsel of the appellant are reproduced hereunder:---
"The learned Attorney-General has placed on record an article by Kamran Khan of News
Intelligence Unit, published in the daily "The News" dated, 14-10-1999, titled
"Ambitious Ziauddin Butt steered Nawaz to political disaster."
"Clearly in view of the reasons given in the short order coupled with the circumstances
and observations stated in this judgment, intervention by the Armed Forces warrants
validation on the basis of the doctrine of State necessity arid the principle of salus populi
suprema lex."
"On behalf of the Federation, voluminous record spreading over dozens of paper books
has been filed in support of the allegation of corruption and corrupt practices by the
former Prime Minister as well as other members of his government. We would suffice by
giving few instances in that behalf.
Reference may first be made to a press clipping published in Daily 'Dawn', dated 24th
October, 1999 under the Heading "Rs.211 billion non-performing Rs.145 billion
defaulted."
"TRANSCRIPT OF BBC TELEVISION'S DOCUMENTARY ON CORRUPTION IN

PAKISTAN"
"Daily "The News" in its publication, dated 21st March, 2000 has reported the above
debate. "
"It is a sad state of affairs that no conceivable steps were initiated to curb the systematic
corruption because of lack of transparent accountability during the tenure of the previous
Government. The material placed before us indicates that the former Government had
shown little interest in eradicating corruption from the society."
"The observations made herein and in the Short Order are not intended to condemn bloc
the politicians and parliamentarians as a class.
Undoubtedly, there are good honest and upright as well as corrupt people in every group
of persons."
Page No. 4 of 11
"In order to voluminous record wherein specific instances of misdeclaration of assets
have been given. We have examined the relevant record only for the purposes of the
present controversy and find that sufficient material exists showing prima facie, that a
large number of politicians indulged in misdeclaration of assets, which factor has a
bearing on the issue in hand. We may clarify that misdeclaration of assets or any
discrepancy as to declaration of assets before the Wealth Tax Authorities qua the Election
Commission may not by itself be a ground for intervention of the Armed Forces on 12th
October, 1999 but this aspect of the matter when viewed in the overall context and with
particular reference to the alleged massive corruption and corrupt practice becomes a
relevant factor."
"After hearing the learned counsel for the parties and going through the record, we have
gathered that the combined effect of the overall policies and methodology adopted by the
former Government was the total collapse of the country's economy inasmuch as G.D.P.
growth during the past three years had hardly kept pace with the growth of population
and Pakistan has a debt burden which equals the country's entire national income."
"The learned Attorney-General relied on an interview of Mr. Khalid Anwar, former Law
Minister, given to the media, published in Daily Khabrain dated 25-3-2000 wherein he
observed:
"Nawaz Sharif, had been exercising the powers like a Mughal Emperor."
"On the question of well-being, the learned Attorney-General stated that the well-being of
the people is a reflection of the combined effect of sovereignty, integrity and solidarity
and there can be no well-being without either of sovereignty, integrity, solidarity and
prosperity."
"After careful analysis of the above material, we are of the view that it is never safe to
confer unfettered powers on a person who is holding the reins of the affairs of the country
as is embedded in the saying, power corrupts and absolute power corrupts absolutely"
"DOCTRINE OF NECESSITY"
"The fact remains that this Court is of the considered view that intervention by the Armed
Forces on 12th October, 1999 was an imperative and inevitable necessity in view of the
exceptional circumstances prevailing at that time and, therefore, there is no valid
justification for not validating the extra-Constitutional measure of the Armed Forces on
the technical distinction between 'doctrine of necessity' and the doctrine of State
necessity'."
It is for the Superior Courts alone to decide whether any given peculiar and extraordinary
circumstances warrant the application of the above doctrine or not. "
"It is Government of the people, by the people and for the people; and not by the Army
rule for an indefinite period. "
6(I) That General Pervez Musharraf, Chairman, Joint Chiefs of Staff Committee and
Chief of Army Staff through Proclamation of Emergency, dated the 14th October, 1999,
followed by PCO-1 of. 1999, whereby he has been described as Chief Executive, 'having
validly assumed power by means of an extra-Constitutional step, in the interest of the
State and for the welfare of the people, is entitled to perform all such acts and promulgate
all legislative measures as enumerated hereinafter."
6(vi) "That the Superior Courts continue to have the power of judicial review to judge the
validity of any act or action of the Armed Forces, if challenged, in the light of the
principles underlying the law of State necessity as stated above. 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
legislative instrument enacted by the Chief Executive and/or any order issued by the
Chief Executive or by any person or authority acting on his behalf."
Page No. 5 of 11
6(vii) That the Courts are not merely to determine whether there exists any nexus
between the orders made, proceedings taken and acts done by the Chief Executive or by
any authority or person acting on his behalf, and his declared objectives as spelt out from
his speeches, dated 13th and 17th October, 1999, on the touchstone of State necessity but
such orders made, proceedings taken and acts done including the legislative measures,
shall also be subject to judicial review by the superior Courts."
He summed up his argument that the present regime had failed to achieve the objects
highlighted by the Chief Executive in his speeches of 13th and 17th October, 1999. The
Honourable Supreme Court has granted conditional validation. R6spondents did not
improve the conditions better than the 12th October, 1999 and in fact conditions qua each
and every sphere of the life is worst than 12th October, 1999 and this Court has ample
jurisdiction to analyses the prevailing situation in the country and shall take judicial
notice of the events subsequent to the judgment of the Honourable Supreme Court in
Syed Zafar Ali Shah's case.
We have considered the contentions of learned counsel for the appellant and perused the
record. It is better and appropriated to reproduce Constitutional history and case-law on
the subject since the creation of Country to resolve the present controversy between the
parties:--
"Pakistan came into existence on the map of World on 14-8-1947 under the Independence
Act, 1947. Pakistan was to be governed by the provisions of Government of India Act,
1935 as adopted by the Pakistan Provisional Constitution Order, 1947 until a Constitution
was framed by the competent body which also formulated the function of the Federal
Legislature. The competent body i.e. Constituent Assembly failed to frame Constitution
even after the lapse of seven years and was guilty of acting as if it was permanent
Legislature. The then Governor-General Mr. Ghulam Muhammad dismissed the
Constituent Assembly on 24-10-1954 on the reason that it had become unrepresentative
character. Moulvi Tameez-ud-Din Khan being aggrieved, by the aforesaid action of the
Governor-General filed a petition under section 223-A of the Government of India Act,
1935 before the Chief Court of Sindh with the prayer for issuance of writs of mandamus
and co warranto. The Federation of Pakistan raised preliminary objection on the ground
that section 223-A under which the issuance of writ was prayed for was not enacted
properly for want of assent of the Governor-General. The Chief Court Sindh rejected the
preliminary objection of the Federation of Pakistan on the ground that the Assembly
functioned as Constituent Assembly and not a Federal Legislature, therefore, assent was
not given and writ petition was accepted. The Federation of Pakistan being aggrieved
filed appeal before the Federal Court. The Federal Court reversed the findings on this
point and the Chief Court held that Constituent Assembly while enacting section 223-A
exercised power under section 8(1) within the meaning of section 6(l) of the Indian
Independent Act was Legislature of the dominion and as such legislation under section
6(3) of the Act requires assent of the Governor General which was lacking and the
judgment of Chief Sindh Court was set aside by the Federal Court reported as Federation
of Pakistan and others v. Moulvi Tamiz-ud-Din (PLD 1955 FC 240)."
The aforesaid decision of the Federal Court had far-reaching consequences as number of
enactments were promulgated by the Constituent Assembly since 1950 which had not
received the assent of the Governor-General. Due to this reason Governor-General
promulgated Emergency Powers Ordinance, 1955 to validate to these enactments which
had been enacted since 1950. The validity of the Ordinance fell for consideration in
Yousaf Patel's case before the Federal Court reported as (PLD 1955 FC 38). The Federal
Court had that validation amounted to legislation and the Constituent Assembly alone
was competent to legislation on Constitutional matters and by its dissolution, the powers
held by it could not be transferred to the Governor-General. The Governor-General could
only either accord or refuse his assent to the enactments passed by Constituent Assembly,
Ordinance was thus found to be invalid is so far as a conferred validity on the laws of the
Constitutional character rendered invalid on account of the lacking of assent of the
Governor-General. The aforesaid decision had effect of creating a serious Constitutional
chaos in the Country as there was no competent Legislature to validate the law in
question. The Governor General filed a Reference before the Federal Court under section
213 of the Government of India Act, 1935 with the prayer seeking Federal Court opinion
Page No. 6 of 11
to overcome crises with which the Country was faced (PLD 1959 FC 435) which reveals
the question referred by the Governor-General to the Federal Court inter alia as follows:
"Is there any provisions in the Constitution or any Rule of law applicable to the situation
of which the Governor-General can by any order or even otherwise declare that all orders
made, decision taken and other cause done under these laws shall be valid and
enforceable and these laws which cannot .without danger to the Sate remove from the
existing legal system shall be treated as a part of the law of the land until the question , of
validity which determined by the new Constituent function. "
Mr. Muhammad Munir the then Chief Justice has expressed his opinion in the following
terms:
"The powers and responsibilities of the Head of State in preserving the State and Society
during an extraordinary emergency and preventing from disruption the Constitution and
Government of the country are analogous to the powers which an Army Commander
had .during Martial Law. He also referre6 to the following opinion of Lord. Mansfield in
George Stratipn and others (1979) 21 Howells State trial 1045).
" ....the only question for you to consider is this: Whether there was that necessity for the
preservation of the Society and the habitants of the place as authorized private men
-----------To take possession of the Government; and to take possession of the
Government to be sure it was necessary to do it immediately, "to amount to a
justification, there must appear imminent danger to the Government and individuals; the
mischief must be extreme, and such as would not admit a possibility of waiting for a legal
remedy. That the safety of the Government must well warrant the experiment ....The
necessity will not justify going further than necessity obliges; for though compulsion
takes away the criminality of the acts, which would otherwise be treason, yet it will not
justify a man in acting farther than such necessity obliges him or continuing to -act after
the compulsion is removed."
The Chief Justice then expressed his own opinion:
“----------subject to the condition of absoluteness, extremeness and imminence, an act

which would otherwise be illegal becomes legal if it is done bona fide under the stress of
necessity (it) affirms Chitty's statement that necessity knows no law and the maxim cited
by Bracton that necessity makes lawful that which otherwise is not lawful. Since the
address (of Mansfield) expressly refers to the right to a private person to act in necessity,
in the case of Head of the State justification to act must a fortiori be clearer and more
imperative. "
The Chief Justice further observes:---
" ....The disaster that stared the Governor-General in the face, consequent on the illegal
manner in which the Constituent Assembly exercised its legislative authority, is apparent
from the results described in the Reference as having followe4 from this Court's decision
in Mr. Tameez-ud-Din Khan's case and the subsequent case of Yousuf Patel. The
Governor-General must, therefore, be held to have cited in order to avert an impending
disaster and to prevent the State and Society from dissolution. His 'Proclamation of 16th
April, 1955, declaring that the laws mentioned in the Schedule to the Emergency Powers
Ordinance, 1955 shall be retrospectively enforceable is accordingly valid during the
interim period, i.e. until the validity of these laws is decide upon by the new Constituent
Assembly,"
In view of the opinion of the Federal Court Constituent Assembly was installed under the
Constitutional Assembly Order, 1955. It passed the validity of laws Bills which was duly
assented by Governor-General; thereafter the Constituent Assembly u: Pakistan finally
passed the Constitutional Bill. The first Constitution of Pakistan came into force on
23-3-1956. Mr. Ghulam Muhammad resigned from the office of Governor-General, and
Major General Sikandar Mirza had succeeded office of Governor-General of Pakistan
w.e.f. 7-10-1955 who became President of Republic of Pakistan who had abrogated
Constitution of 1956 and dissolved the Legislative Assemblies and also dismissed the
Page No. 7 of 11
Federal and Provincial Governments and also abolished the political parties. He also
proclaimed Martial Law throughout the country and appointed General Muhammad Ayub
as Chief Martial Law Administrator.
The proclamation contained inter alia I following reasons for imposing proclamation:---
"----------The Constitution------is so full of dangerous compromises that Pakistan will

disintegrate internally if the inherent malaise is not removed. To rectify this, the country
must be firstly brought to sanity by peaceful revolution. Then it is my intention... to
devise a Constitution more suitable to the genius of the Muslim People..."
The aforesaid action was challenged before the Hon'ble Supreme Court in State v. Dosso
and another and 3 others (PLD 1958 SC 533). The Honourable Supreme Court examined
the question of validity of Martial Law and laid down the following principle:
"---------For the purposes of the doctrine here a change is, in law, a revolution if it annuls
the Constitution and the annulment is effective ....if the revaluation is victorious in the
sense that the persons assuming power under the change can successfully require the
inhabitants of the country, to conform to the. new regime, then the revolution itself
becomes a law creating fact because thereafter its own legality is judged not by reference
to the annulled Constitution but by reference to its own success. On the same principle
the validity of the laws to be made thereafter is judged by reference to the new and not
the annulled Constitution. Thus, the essential condition to determine whether a
Constitution has been annulled is the efficacy of the change.
If what I have already stated is correct then the revolution having been successful it
satisfies the test of efficacy and becomes a basic law creating fact. On that assumption the
Laws (Continuance in Force) Order, however, transitory or imperfect it may be, is a new
legal order and it is in accordance with that order that the validity of the law and the
correctness of judicial decisions has to be determined. Under the new legal order any law
may at any time be changed by the President there being no restriction on the President's
law-making powers."
It is pertinent to mention here that Field Marshal Muhammad Ayub Khan, replaced Maj.
General Iskandar Mirza and gave new Constitution to the Country on 8-6-1962. He
remained in power as President of Pakistan up to 25-3-1969. The country fell in major
crises and Field Marshal Muhammad Ayub Khan had to tender his resignation and
handed over the control of the country to General Muhammad Yahya Khan, who also
abrogated the Constitution and became Chief Martial Law Administrator who assumed
the office of President and continued to act as President until 20th December, 1971, when
Mr. Zultikar Ali Bhutto, took over as President and Chief Martial Law Administrator. The
principle laid down by the Hon'ble Supreme Court in Dosso supra case -was examined by
the honourable Supreme Court in Asma Jillani's case (PLD 1972 SC 139) and laid down
following principle:
“....... The assumption of power by Agha Muhammad Yahya Khan as Chief Martial Law
Administrator and later as President of Pakistan was an act of usurpation, and was illegal
and unconstitutional. All the legislative and administrative measures taken by this
unauthorized and unconstitutional regime cannot be upheld on the basis of legitimacy, but
such laws and measures which are protected by the doctrine of necessity, that is to say,
which were made for the welfare of the nation and for the ordinary orderly administration
of the country, can be deemed to be valid ....Martial Law Regulation No.78 of 1971 under
which the two detainees were held is an illegal regulation which cannot enjoy the
protection of the rule of necessity."
After holding that Martial Law regime of Yahya Khan was utterly illegal, relying on the
Attorney-General of the Public v. Mustafa Ibrahim and others (1964 Cyprus Law Reports
195) and dissenting opinion of the Lord Pearce in Madzimbamuto v. Lardner Burke
((1968) 3 AER 561) Hamood-urRehman, CJ expressed the view that: ----
Page No. 8 of 11
“------I too am of the opinion that recourse has to be taken to the doctrine of necessity
where the ignoring of it would result in disastrous consequences to the body politic and
upset the view that it is a doctrine for validating the illegal acts of usurpers ...
....I would call this a principle of condemnation and not legitimization .....I would
condone all transactions which are past and closed for no useful purposes can be served
by opening them, all acts and legislation, legislative matters which are in accordance
with, or could have been made under, the abrogated Constitution or the previous legal
order; all acts which tend to advance or promote the good of the people; and all acts
required to be done for the ordinary orderly running of the State and all such measures as
would establish or lead to the establishment of, in our case, the objectives mentioned in
the Objectives Resolution. "
Subsequently, Zulfikar Ali Bhutto, became Prime Minister of the country who remained
in the office till July, 1977. Then General Muhammad Zia-ul-Haq, Chief of Army Staff
took over control of the country on 5-7-1977 and also issued proclamation whereby the
whole of Pakistan was brought under Martial Law. The Constitution of Pakistan was held
in abeyance. Tote Prime Minister including his Cabinet, Speaker, Deputy Speaker and
Chief Ministers were ceased to hold office. The President of Pakistan was allowed to
remain in office. General Muhammad Zia-ul-Haq also issued Laws (Continuance in
Force) Order, 1977 to give effect to the proclamation in which he had taken the control of
the country. Begum Nusrat Bhutto, being aggrieved by the imposition of Martial Law
challenged the same under Article 184(3) of the Constitution before the Hon'ble Supreme
Court. The Hon'ble Supreme Court held that the effectiveness of regime provides its own
legality and rather took the view that the enactment of the legal order is only condition of
validity and not the validity itself. The Hon'ble Supreme Court summarized the legal
position as under:---
(i) That the 1973 Constitution still remains the supreme law of the land, subject to the
condition that certain parts thereof have been held in abeyance on account of State
necessity;
(ii) That the President of Pakistan and the superior Courts continue to function under the
Constitution. The mere fact that the Judges of the superior Courts have taken all new oath
after the Proclamation of Martial Law, does not in any manner derogate from this
position, as the Courts had been originally i established under the 1973 Constitution, and
have continued in their functions in spite of the proclamation of Martial Law;
(iii) That the Chief Martial Law Administrator, having validly assumed power by means
of an extra-Constitutional step, in the interest of the State and for the welfare of the
people is entitled to perform all such acts and promulgate all legislative measures which
have been consistently recognised by judicial authorities as falling within the scope of the
law of necessity, namely:--
(a) All acts of legislative measures which are in accordance with or could have been
made under the 1973 Constitution, including the power to amend it;
(b) All acts which tend to advance or promote the good of the people;
(c) All acts required to be done for the ordinary orderly running of the State; and
(d) All such measures as would establish or lead to the establishment of the declared
objectives of the proclamation of Martial Law, namely restoration of law and order, and
normalcy in the country, the earliest possible holding of free and fair elections for the
purpose of restoration of democratic institutions under the 1973 Constitution;
(iv) That these acts, or any of them, may be performed or carried out by means of
Presidential Orders, Ordinances, Martial Law Regulations, or as the occasion may
require; and
(v) That 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
Page No. 9 of 11
the principles underlying the law of necessity as stated above. 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;
(vi) General Muhammad Zial-ul-Haq Chief Martial Law Administrator promulgated

Provisional Constitution Order on 24-3-1981. The same was self-contained document and
certain Articles of 1973 Constitution were made part thereof. The country was governed
in accordance with the provisions of this Order until 30th December, 1985 when Martial
Law was lifted. The Revival of the Constitution of 1973 Order, 1985 was promulgated. It
was first amended in the Constitution Second Amendment Order, 1985 and then
substituted by the Constitution (8th Amendment) Act, 1985. It came into force on
30-12-1985 when proclamation on 5-7-1977 was revoked. Article 270-A was added in the
Constitution through 8th Amendment of which was challenged before the Hon'ble
Supreme Court in reported case Ghulam Mustafa Khar (PLD 1989 SC 26). The Hon'ble
Supreme Court has laid down principle that superior Courts have powers of judicial
review qua the actions taken by the Martial Law regime in case the actions are without
lawful authority are coram non judice.
From this onward political system came into existence, the Article 58(2)b was added in
the original Constitution, 1973 through 8th Amendment. The 'President of Pakistan and
Governors of Provinces dissolved the National and Provincial Assemblies respectively.
The action of President and Governor was challenged before the Hon'ble Supreme Court
in Haji Saif Ullah's case (PLD 1989 SC 166), the action of President was declared void,
without lawful authority but the Assemblies were not restored. Thereafter, President and
Governor again dissolved the Assemblies, the action was again challenged before the
Hon'ble Supreme Court by Kh. Ahmed Tariq Rahim's case in (PLD 1992 SC 646) and the
same was declared valid. The President of Pakistan and Governors also dissolved
National and Provincial Assemblies in the year 1993 which was challenged before the
Hon'ble Supreme Court and action of President was declared invalid and Assemblies
were restored in Mian Nawaz Sharif's case (PLD 1993 SC 473).
It is pertinent to mention here that after restoration of Assemblies Mian Nawaz Shair
would remain in powers for one month only and he himself advised the President of
Pakistan to dissolve the National Assemblies and Provincial Assemblies on the advice of
Governors. The general elections were held and Mohtrama Benazir Bhutto became Prime
Minister of Pakistan. The President and Governors again exercised their powers under the
Constitution under Article 58(2)(b) dissolved the Assemblies which were challenged by
Mahmood Khan Achakzai's case (PLD 1997 SC 426) and Mohtarma Benazir Bhutto's
case (PLD 1998 SC 338) and the action was declared valid by the Hon'ble Supreme
Court. The General Election was held and Mian Nawaz Sharif was elected as Prime
Minister. The present Chief Executive dissolved the National Assemblies and Provincial
Assemblies and imposed proclamation in the Country on 12-10-1999. This action was
challenged by Syed Zafar Ali under Article 184(3) of the Constitution before Hon'ble
Supreme Court and the same was finally decided and validity of action of Chief
Executive declared valid conditionally reported in Syed Zafar Ali Shah's case (PLD 2000
SC 869).
In view of aforesaid discussion we would like to decide the present case. In the present
case the action of the respondent No. 1 is validated by the Hon'ble Supreme Court in
Syed Zafar Ali's case (PLD 2000 SC 869) Wasim Sajjad and others filed review petitions
before the Hon'ble Supreme Court under Article 188 of the Constitution in which they
sought review of judgment, dated 12-5-2000 rendered by the Hon'ble Supreme court in
Syed Zafar Ali Shah's case. The Hon'ble Supreme Court reconsidered the aforesaid case
in all prospects and upheld the earlier view taken by the Hon'ble Supreme Court on 6th
and 7th February, 2001 and dismissed the review petition reported as PLD 2001 SC 233
(Wasim Sajjad and others v. Federation of Pakistan).
It is pertinent to mention here that eleven Judges of the Hon'ble Supreme Court had
decided the aforesaid review petitions and validated the action of respondent No. 1.
Subsequently in Khan Asfand Yar Wali v. Federation of Pakistan Constitutional Petition
No.13-2000 alongwith other Constitutional petitions in which the vires of the NAB
Page No. 10 of 11
Ordinance were challenged before the Hon'ble Supreme Court. The Honourable Supreme
Court upheld the action of respondent No.l qua the present controversy in paragraphs 201
to 210. The relevant observation is reproduced hereunder: --
"But when the matter discloses a clear nexus between crime/corruption and powerful
persons holding public offices which poses a serious threat to the economy as well as the
very existence of the country, then to prevent erosion of the rule of law and to take steps
for restoration of democracy in the country within time frame laid down by this Court, it
will have to be examined whether the mechanism involved for recovery of amounts from
the wilful defaulters for reviving the economy is in conformity with the declared
objectives of the Chief Executive. Applying the above principles, we are led to irresistible
conclusion, after hearing the learned counsel for the petitioners at length, that there was a
need for creation of an offence of wilful default and mechanism for the recovery of the
same as is purported to have been done under section 5(5) of the impugned order."
The appellant wants review of the judgment of the Honourable Supreme Court through
Constitutional petition as well as through this I.C.A., rendered by the Honourable
Supreme Court in Syed Zafar Ali Shah's case (PLD 2000 SC 869). The Honourable
Supreme Court, as mentioned above, has dismissed the review petition filed by Waseem
Sajjad and others before the Honourable Supreme Court on 7-2-2001 keeping in view the
situation in the country subsequent to the decision of the Honourable Supreme Court in
Syed Zafar Ali Shah's case. Thereafter, as mentioned above, considering the prevailing
situation of the country, in NAB Ordinance case and upheld the action of the respondent
in Constitutional Petition No. 13 of 2000 filed by Khan Asfand Yar Wali v. Federation of
Pakistan. It is pertinent to mention here that the judgment of the Honourable Supreme
Court is binding on each and every organ of the State by virtue of Articles 189 and 190 of
the Constitution.
In view of what has been discussed above, this I.C.A. has. no merits and is hereby
dismissed.
Q.M.H./M.A.K./P-35/L Appeal dismissed.
Page No. 11 of 11
1999 S C M R 2868
Present: Irshad Hasan Khan, Raja Afraslab Khan and Khalil-ur-Rehman Khan, JJ
KHUSHI MUHAMMAD ---Petitioner
versus
INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE

and 4 others---Respondents
Criminal Miscellaneous Petition No.21-L of 1997 in Criminal Appeal No.446 of 1995,

decided on 22nd April, 1997.
(Petition under Order XXXIII, Rule 6 of the Supreme Court Rules, 1980, praying for
issuance of direction to respondents Nos.l to 4 to effect the arrest of Rab Nawaz
respondent No.5 in pursuance of the Order of this Court, dated 10-10-1995, passed in
Criminal Appeal No.446 of 1995).
Supreme Court Rules, 1980---- . .
----O. XXXIII, R.6---Constitution of Pakistan (1973), Arts. 187(2) & 190---

Implementation of order of Supreme Court---No concrete steps had been taken by the
police to effect the arrest of the accused after cancellation of bail granted to him by High
Court, despite the order passed by Supreme Court--Article 187 (2), of the Constitution
had specifically provided for enforcement of any direction, order or decree passed by
Supreme Court by the concerned High Court---Petitioner, therefore, might approach the
High Court for speedy and effective implementation of the decision of Supreme Court
which was the Constitutional obligation of the Government under Art. 190 of the
Constitution---Petition was disposed of accordingly.
Ijaz Hussain Batalvi, Senior Advocate instructed by Muhammad Aslam Ch. Advocate-on-
Record for Petitioner.
Nemo for Respondents.
Date of hearing: 22nd April, 1997.
ORDER
IRSHAD HASAN KHAN, J.---The petitioner through this petition, under Order
XXXIII, Rule 6 of the Supreme Court Rules, 1980 seeks implementation of the judgment
of this Court in Criminal Appeal No.446 of 1995, decided on .10-10-1995 rendered in the
case of Khushi Muhammad Petitioner v. Rab Nawaz and 3 others Respondents (1996
SCMR 172), whereby this Court cancelled the bail granted to Rab Nawaz respondent
No.5 herein by order of the learned Judge in Chamber, dated 3-8-1995 passed in Criminal
Miscellaneous No.2494-R of 1995. Non-bailable warrant was also directed to be issued
for the arrest of Rab Nawaz respondent No.5 herein. The accused was also denied benefit
of the 3rd proviso of section 497(1), Cr.P.C. in that, admittedly he had escaped from the
custody and was re-arrested more than 1-1/2 years afterwards.
2. Mr. Ijaz Hussain Batalvi, Senior Advocate, appearing on behalf of the petitioner,
submitted that Rab Nawaz respondent had become terror for the petitioner's family and
their lives were in danger but the local administration was not taking any interest for his
arrest despite the issuance of non-bailable warrants by this Court. It is further alleged that
during his abscondance he was involved in case registered with Police Station Mid
Ranjha, District Sargodha vide F.I.R. No.34, dated 13-4-1993 and recently he has
committed double murder and a case has been registered against him vide F.I.R. No. 110.
dated 23-3-1997, at Police Station Mid Ranjha District Sargodha. It is also alleged that
the petitioner's family is receiving constant threats compelling them to compromise with
him.
Page No. 1 of 2
3. There is no cavil with proposition that it is the Constitutional duty of the Government
functionaries to give protection to the life and liberty of the persons. Article 190 of the
Constitution also makes it obligatory on all executive and judicial authorities throughout
Pakistan to act in aid of the Supreme Court. We, therefore, see no justification why no
concrete steps have been taker by the police to effect the arrest of Rab Nawaz respondent
despite orders passed by this Court. Even if the police felt that it needed some time to
implement the decision, the proper course of action would have been to approach the
appropriate Court in this behalf for extension of time in implementing the decision of this
Court.
4. Be that as it may, we are unable to scribe to the pleas raised in paragraph 22 of the
application moved before this Court that the petitioner has no other adequate and
efficacious remedy available to him except to invoke the jurisdiction of this Court for the
redress of his grievance and for the implementation of the order, dated 10-10-1995
(supra). Suffice it to say that a specific provision has been made under Article 187(2), of
the Constitution of Islamic Republic of Pakistan, 1973, for enforcement of any direction,
order or decree passed by this Court by the concerned High Court. Thus, visualised, the
petitioner may approach the High Court, if so advised, for speedy and effective
implementation of this Court decision which, as stated above, is the Constitutional
obligation of the Government under Article 190. The petition is disposed of with these
observations.
N.H.Q./K-34/S Order accordingly.
Page No. 2 of 2
P L D 1997 Supreme Court 84
Present: Sajjad Ali Shah, C.J., Ajmal Mian,

Saiduzzaman Siddiqui, Fazal Ilahi Khan
and Raja Afrasiab Khan, JJ
AL-JEHAD TRUST through Raees-ul-Mujahidin Habib

Al-Wahabul Khairi, Advocate Supreme Court
and another---Petitioners
versus
FEDERATION OF PAKISTAN
and others---Respondents
Constitutional Petitions Nos.23, 54 and Reference No.2 of 1996, decided on 4th

December, 1996.
Per Sajjad Ali Shah, C.J.; Fazal Elahi Khan, J. agreeing-
(a) Constitution of Pakistan (1973)--
----Arts.177 & 193---Appointment of Supreme Court and High Court Judges--Criteria---

Salient points decided by Supreme Court in Al-Jehad Trust v. Federation of Pakistan and
others PLD 1996 SC 324 recorded.
Some of the salient points decided in the case of appointment of Judges (Al-Jehad Trust
v. Federation of Pakistan and others PLD 1996 SC 314) are: that 'consultation' is defined
as effective, meaningful, purposive, consensusoriented, leaving no room for complaint of
arbitrariness or unfair play. Recommendations made by the Chief Justice of the High
Court and Chief Justice of Pakistan in respect of appointments of Judges in the High
Court are to be accepted by the President/Executive in the absence of very sound reasons
to be recorded. Acting Chief Justices are not consultees within the Constitutional Scheme.
Ad hoc and Acting Judges can be appointed in the Supreme Court only after sanctioned
strength is exhausted. Vacancies to be filled ordinarily within 30 days and in
extraordinary circumstances within 90 days. Senior most Judge in the High Court has
legitimate expectancy to become Chief Justice and Additional Judges in the High Courts
have legitimate expectancy to be made permanent Judges. Transfer of a Judge of the High
Court without his consent and induction in the Federal Shariat Court is viotative of
Article 209. Ten years active practice as Advocate of the .High Court is mandatory for a
Member of Bar for appointment as a Judge in the High Court as against enrolment
simpliciter. Judge of the Supreme Court may not be sent as Acting Chief Justice of a High
Court.
Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 .SC 324
(b) Constitution of Pakistan (1973)-

----Arts. 186, 48, 90 & 99---Advisory jurisdiction of Supreme Court---Nature and
scope---Reference by the President of Pakistan---Advisory jurisdiction of the Supreme
Court, in normal course, can be invoked by the President on the advice of the Prime
Minister---Question of law of public importance vary from case to case---Opinion of the
Supreme Court is just opinion with explanation on the question of law and is not of
binding nature and it is up to the President or the Federal Government to act upon it or
not.
Article 186 of the Constitution, which relates to the advisory jurisdiction of the Supreme
Court, contemplates that if at any time, the President considers that it is desirable to
obtain opinion of the Supreme Court on any question of law which he considers to be of
public importance, he may refer the question to the Supreme Court for consideration.
What is question of law which President considers to be of public importance would vary
from case to case. In some cases it can be a question of law and of public importance in
Page No. 1 of 116

which Federal Government as a whole is interested to make enquiry without there being
any difference of opinion between President and Prime Minister.
For such a situation, which is the normal course, it is indisputable that advisory
jurisdiction of the Supreme Court can be invoked. by the President on the advice of the
Prime Minister.
Opinion of the Supreme Court is just opinion with explanation on the question of law and
is not of binding nature and it is up to the President or the Federal Government to act
upon it or not.
Article 90 of the 1973 Constitution envisages that the Executive Authority of the
Federation shall vest in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution. Article 99
provides that all executive actions of the Federal Government shall be expressed to be
taken in the name of the President. In exercise of powers conferred by both these Articles
the Federal Government has made Rules of Business of 1973 under Schedule V-B, Rule
15-A(1). List is made of cases requiring orders of President on the advice of the Prime
Minister. Entry No.54 specifically mentions reference to the Supreme Court on any
question of law to be filed under Article 186, which is to be done on the advice of the
Prime Minister.
(c) Constitution of Pakistan (1973)--
----Arts. 186 & 184---Advisory jurisdiction and adjudicatory jurisdiction of Supreme

Court---Scope and nature---Reference by the President of Pakistan under Art.186,
Constitution of Pakistan---Same question of law upon which opinion of Supreme Court
was sought under its advisory jurisdiction was also pending before Supreme Court in the
adjudicatory jurisdiction---Finding of Supreme Court rendered under adjudicatory
jurisdiction is binding upon all and can be considered as opinion rendered under the
advisory jurisdiction as well.
(d) Constitution of Pakistan (1973)--
----Preamble---Basic structure of the Constitution---Determination---In order to

understand fully as to what is the basic structure of the Constitution of Pakistan, (19.73),
it would be pertinent to read not only the Constitution but other relevant documents, such
as, Preamble, Constitution Bill, Report of the Constitution Committee, Debates and
Amendments, if any.--[Interpretation of Constitution].
(e) Constitution of Pakistan (1973)--
----Preamble---Constitution (Eigth Amendment) Act (XvIIl of 1985), Preamble---

Amendments inserted by Constitution (Eighth Amendment) Act, 1985 have not changed
the form of Government from Parliamentary to Presidential although more powers have
been given to President to provide him an effective role---Point emphasised by elaborate
discussion of various provisions of Articles introduced pursuant to Constitution (Eight);
Amendment) Act, 1985.
(f) Constitution of Pakistan (1973)--
----Arts. 90(1) & 48(1)---Executive Authority of the Federation---Under Art :90(1),

Constitution of Pakistan, Executive Authority is to be exercised by the President in
conjunction with Art.48(1) of the Constitution, which requires that President shall act in
accordance with the advice of the Cabinet or the Prime Minister.
(g) Constitution of Pakistan (1973)-
----Arts. 177 & 193---Appointment of Supreme Court and High Court Judges is an
executive action---Words "after consultation" employed in. Arts. 177 & 193 of the
Constitution---Connotation.
Page No. 2 of 116

Appointment of a Judge as contemplated in the Constitution is an Executive action for the
reason that final order is passed in the name of the President and in consequence
notification is to be issued as covered by Entries Nos.31(b) and 32 of Schedule V-B, Rule
15-A(1) of Rules of Business, 1973.
The words "after consultation" employed, inter alia, in Articles 177 and 193 of the
Constitution connote that the consultation should be effective, meaningful, purposive,
consensus-oriented. leaving no room for complaint or arbitrariness or unfair play. The
opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness
and suitability of a candidate for judgeship is entitled to be accepted in the absence of
very sound reasons to be recorded by the President/Executive.
If President/Executive appoints a candidate found to be unfit and unsuitable for judgeship

by the Chief Justice of Pakistan and Chief Justice of the High Court concerned, it will not
be a proper exercise of power under the relevant Article of the Constitution.
The permanent vacancies occurring in the office of the Chief Justice and Judges normally
should be filled in immediately by not later than 30 days but a vacancy occurring before
the due date on account of death or for any other reason, should be filled in within 90
days on permanent basis.
Al-Jehad Trust v. Federation of Pakistan and others PLD 1996, SC 324 quoted.
(h) Interpretation of Statutes--
---- Conflict between general and special provision in the same statute--
Presumption would be that the general provision was not intended to interfere with the
operation of the special provision.
M.D. Tahir v. Federal Government and others 1989 CLC 1369; Government of Punjab,
Health Department v. Naila Begum PLD 1987 Lah.
336; Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473 and Golden
Oraphies (Pvt.) Ltd. v. Director of Vigilance, Central Excise, Customs and Sales Tax
1993 SCMR 1635 ref.
(i) Interpretation of Constitution--
----General principles---Interpretation of the provision of the Constitution is to be made

in such a way that the Constitution is construed as a whole as an organic instrument and
no part of it is rendered as redundant.
([) Constitution of Pakistan (1973)--
----Preamble---Constitution of Pakistan (1973), Contains Federal character and
Parliamentary Form of overnment.
(k) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48(1)(2)---Appointment of Supreme Court and High Court's
Judges---Powers of President---Provisions of Arts.177 & 193 of the Constitution are not
special provisions---Provision of Art.48(1) of the Constitution of Pakistan has to be read
in conjunction with Arts. 177 & 193 of the Constitution---President has to act in
accordance with the advice of the Cabinet or the Prime Minister---President, however,
either has no discretion but has to act in accordance with the advice of the Cabinet or the
Prime Minister as contemplated under Art.48(1) of the Constitution or can act in his
discretion as contemplated under Art.48(2) of the Constitution.
If Constitution of 1973 is considered as a whole then reading of the Constitution

indicates that it contains Federal Character and Parliamentary Form of Government.
Page No. 3 of 116

In Parliamentary Form of Government Prime Minister is Head of the Executive
and all executive actions are taken in the name of the President. Article 48(l) envisages
that in the exercise of his functions, the President shall act in accordance with the advice
of the Cabinet or the Prime Minister. This is to be read in conjunction with Articles 177
and 193 of the Constitution so far as the appointments of the Judges of the Superior
Courts are concerned. It will not be correct to say that Articles 177 and 193 of the
Constitution are special provisions which do not attract application of Article 48 of the
Constitution, which contains the basic characteristics of Parliamentary Form of
Government to the effect that the President has to act in accordance with the advice of the
Cabinet or the Prime Minister. This provision of Article 48(l) will be automatically
attracted whenever the President is exercising his functions unless the cases fall squarely
under Article 48(2) of the Constitution,in which it is stated that the President shall act in
his discretion in respect of any matter in respect of which he is empowered by the
Constitution to do so. So either the President has no discretion but has to act in
accordance with the advice of the Cabinet or the Prime Minister as contemplated under
Article 48(1) or can act in his discretion 1S contemplated under Article 48(23 of the
Constitution.
If advice of the Prime Minister is to be excluded because consultative process is

provided in Articles 177 and 193 of the Constitution, then this rule will not only have to
be applied to all the provisions on the subject of appointments in judiciary which can be
called judicial structure but could be extended to the whole structure of the Constitution.
The rule will be that in the appointments, if the President has to consult consultees and
the Prime Minister is not mentioned then the Prime Minister has no role to play.
Conversely, when the, President is not required to consult, he shall have to act on the
advice of the Prime Minister. Both cannot go together. Applying the rule stated above to
the provisions relating to judicature, it would then make very interesting reading. For
example, in Article 176, which provides for the constitution of the Supreme Court it is
provided that so many other Judges as may be determined by the Act of Parliament or
until so determined may be fixed by the President. In this provision, consultation is not
mentioned hence advice of the Prime Minister is attracted. Article 177 relates to the
appointment of Chief Justice of Pakistan and so far his appointment is concerned
consultation is not required which means Prime Minister has role to play. In the second
part of the same sub-Article (1) the President is authorised to appoint other Judges after
consultation with Chief Justice. This shows that in the appointment of Chief Justice of
Pakistan Prime
Minister has a say but in the appointments of other Judges of the Supreme Court the
Prime Minister has no say. Article 180 provides for appointment of Acting Chief Justice
and because consultation is not mentioned hence Prime Minister will have a say. Article
181 relates to appointments of Acting Judges in the Supreme Court and since word
"consultation" is not used therefore Prime Minister will have a say. Article 182 relates to
the appointments of ad hoc Judges and here the initiative is to be taken by the Chief
Justice of Pakistan. In clause (a) the consultation is not mentioned, so advice of Prime
Minister will be attracted and in clause (b) consent of the Chief Justice of the High Court
is mentioned, so advice of the Prime Minister will be excluded. Article 183(1) provides
for permanent seat of the Supreme Court at Islamabad. Under subArticle (2) Chief Justice
of Pakistan can declare other places after approval of the President for sitting of the
Supreme Court which will exclude advice of the Prime Minister but in sub-Article (3)
President is empowered to declare sitting of the supreme Court at any such place until
provision is made for establishment at Islamabad, advice of the Prime Minister will be
attracted. Under Article 193 for appointment of a Judge of the High Court consultation is
mentioned which will exclude advice of the Prime Minister. In Article 2000) for transfer
of a Judge from one High Court to another, consultation is required, so advice of the
Prime Minister will be excluded. In Articles 200(3) and 203-C 'consultation' is not
mentioned hence advice of the Prime Minister will be attracted. This argument that where
process of consultation is provided and Prime Minister is not mentioned by designation
then in the process advice of the Prime Minister is not attracted, does not sound
convincing because then only two Articles 177 and 193 would exclude the advice of the
Prime Minister but in all other articles relating to the appointment of Judges, advice
would be included.
Page No. 4 of 116

There is no apparent conflict in Articles 48 on one side and 177 and 193 on the
other side because Articles 177 and 193 are to be read in conjunction with Article 48(l)
which is omni potent provision having special characteristic of Constitution of 1973
which envisages Parliamentary Form of Government. If the Constitution-makers intended
even after promulgation of Eighth Amendment to exclude Article 48(1)'from application
to Articles 177 and 193, then they could have expressly mentioned in Articles 177 and
193 that the President, while performing his functions under these Articles is allowed to
act in his discretion excluding advice of the Prime Minister and would be deemed to be
acting under Article 48(2). For such reasons there is no conflict as appointments under
Articles 177 and 193 of the Constitution are made in conjunction with Article 48(1) of the
Constitution always attracting and applying advice of the Prime Minister to the President.
In respect of appointments of Judges as contemplated under Articles 177 and 193

of the Constitution advice of the Cabinet or Prime Minister under Article 48(l) is attracted
which is further qualified by and subject to the ratio decidendi contained in the judgment
of Al-Jehad Trust v. Federation of
Pakistan PLD 1996 SC 324 in which it is held that in the appointments of Judges
opinion of the Chief Justice of Pakistan and Chief Justice of High Court as to the fitness
and suitability of a candidate for judgeship is entitled to be accepted in the absence of
very sound reasons to be recorded by .the President/Executive. If President/Executive
appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of
Pakistan and the Chief Justice of the High Court concerned, it will not be a proper
exercise of power under the relevant Article of the Constitution.
(1) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48(1)---Appointment of Supreme Court and High Court. Judges---
Power of the President---Advice of the Cabinet or the Prime Minister--Effect---President
in performance of Constitutional duties, has to see that provisions in the Constitution
relating to the appointment of Judges are construed in the. light of Supreme Court
judgment in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
Supreme Court Advocates-on-Record Association v. Union of India AIR 1994 SC 268

and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.
(m) Constitution of Pakistan (1973)--
----Arts. .189, 190 & 204---Decision of Supreme Court---Binding in nature--Action in aid

of Supreme Court---Concept---Non-implementation of the judgment of Supreme Court---
Effect---Person identified as responsible for nonin implementation of the judgment can ba
punished by the Supreme Court for cc tempt for disobedience of its judgment.--
[Contempt of Court].
Under the four corners of the Constitution Article 189 provides specifically that 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.
Article 190 envisages that all Executive and Judicial Authorities throughout P :.k:--fan
shall act in aid of Supreme Court. Article 204 empowers the Supreme Court to punish for
contempt any person who
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys
any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a
Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter pending before
the Court; or
(d) does any other thing which, by law, constitutes contempt of the Court
Page No. 5 of 116

In the case of non-implementation of the judgment it will have to be found out as to who
is responsible for not implementing it. Article 190 is a mandatory provision under which
there is no alternative for the Executive but to act in aid of the Supreme Court. Person
identified as responsible for nonimplementation of the judgment can be punished by the
Supreme Court for contempt for disobedience of its judgment.
(n) Constitution of Pakistan (1973)--
----Arts. 177, 193, 189 & 190---Appointment of Supreme Court and High Court Judges---
Judgment of Supreme Court interpreting Articles of the Constitution relating to the
judiciary and appointment of Judges of superior Courts---Action in aid of Supreme
Court---President of Pakistan is expected to see that appointments of Judges in the
superior judiciary are made in strict accordance with the Constitutional scheme
contemplated in Arts. 177 & 193 of the Constitution which are interpreted and read in
conjunction with the Supreme Court judgment in Al-Jehad Trust case PLD 1996 SC 324
which is authoritative adjudicatory pronouncement of Supreme Court in respect of
interpretation of Articles in the Constitution relating to the judiciary.
Perusal of Articles 177 and 193 and other Articles of the Constitution of Pakistan which
are relevant for the subject-matter of judiciary shows that Supreme Court has to
correspond with the President for appointments as he is named specifically in the relevant
Articles and all executive actions are to be taken in his name. It is expected that President
shall see to it that appointments of Judges in the superior judiciary are made in strict
accordance with the Constitutional scheme contemplated in Articles 177 and 193 of the
Constitution which are to be interpreted and read in conjunction with the judgment in
AlJehad Trust case PLD 1996 SC 324 which is authoritative adjudicatory pronouncement
in respect of interpretation of Articles in the Constitution relating to the Judiciary. Time
frame is also provided in the judgment within which appointments are to be finalised.
(o) Constitution of Pakistan (1973)--
----Arts. 190, 189, 177, 193 & 58(2)(b)---Judgment of Supreme Court interpreting
Articles of the Constitution relating to the judiciary and appointments of Judges of the
superior Courts---Action in aid of Supreme Court---Failure of all Executive and Judicial
Authorities in Pakistan to come in aid of the Supreme Court and judgment of Supreme
Court is not implemented--Effect---If undue delay or impasse shows that dilatory tactics
are being adopted and sincere attempt is not being made to implement the judgment of
Supreme Court in, which Supreme Court has given an authoritative adjudicatory
pronouncement in respect of. interpretation of Articles in the Constitution
relating to the judiciary and time frame has also been provided within which
appointments in superior judiciary are to be made, it will become the Constitutional duty
of the President to see that judgment of the Supreme Court is implemented and there is no
violation or non-compliance of Art. 190 of the Constitution---If, however, all the
Executive and Judicial Authorities in Pakistan are unable to come in aid of the Supreme
Court and judgment is not implemented, then such situation would be open to be
construed as impasse or deadlock and would amount to very unhappy situation reflecting
failure of Constitutional machinery justifying to say that a situation has arisen in which
Government of Federation cannot be carried on in accordance with the provisions of the
Constitution as it contemplated under, Art.58(2)(b) of the Constitution of Pakistan (1973).
Perusal of Articles 177 and 193 and other Articles of the Constitution of Pakistan which
are relevant for the subject-matter of judiciary shows that Supreme Court has to
correspond with the President for appointments as he is named specifically in the relevant
Articles and all executive actions are to be taken in his name. It is expected that President
shall see-to it that appointments of Judges in the superior judiciary are made in strict
accordance with the Constitutional scheme contemplated in Articles 177 and 193 of the
Constitution which are to be interpreted and read in conjunction with the judgment in
AlJehad Trust case PLD 1996 SC 324 which is authoritative adjudicatory pronouncement
in respect of interpretation of Articles in the Constitution relating to the judiciary. Time
frame is also provided in the judgment within which appointments are to be finalised.
Page No. 6 of 116

If there is undue delay or impasse which shows that dilatory tactics are being adopted and
sincere attempt is not being made to implement the judgment of the Supreme Court then
it will become the Constitutional duty of the President to see that judgment of Supreme
Court is implemented and there is no violation or non-compliance of Article 190 of the
Constitution which makes it mandatory for all Executive and Judicial Authorities
throughout Pakistan to act in aid of the Supreme Court. If all the Executive and Judicial
Authorities in Pakistan are unable to come in aid of the Supreme Court and judgment is
not implemented, then such situation would be open to be construed as impasse or
deadlock and would amount to very unhappy situation reflecting failure of the
Constitutional machinery and one would be justified to say that a situation has arisen in
which the Government of Federation cannot be carried on in accordance with the
provisions of the Constitution as is contemplated under Article 58(2)(b).
Per Ajmal Mian, J. agreeing with Sajjad Ali Shah, C.J.
(p) Constitution of Pakistan (1973)--
----Art. 185---Anneal to Supreme Court---Issue in appeal relating to
interpretation of Constitution---Consent order by Supreme Court in appeal--Nature---

Agreement between the parties was not brought on record of the Court---Such consent
order in disposing of appeal by Supreme Court cannot be treated as a judgment, for
Court, is under Constitutional duty to interpret the Constitutional provisions.
Union of India v. Sankal Chand AIR 1977 SC 2328 ref.
(q) Constitution of Pakistan (1973)--
----Art. 48(1)(2)---President to act on advice---Discretionary powers of the President

under Art.48(2) of the Constitution of Pakistan which he can exercise without or against
the Prime Minister's advice enumerated.
The President of Pakistan has been given express discretionary power it the following
matters which he can exercise without or against the Prime Minister's advice under
Article 48(1) of the Constitution-
(i) to appoint a date for election under Article 48(5)(a);
(ii) to appoint a caretaker Cabinet after dissolution of the National Assembly and
dismissal of the Cabinet under Article 58(2)(b);
(iii) to refer a matter of national importance for Referendum under Article 48(6);
(iv) to dissolve the National Assembly under Article 58(2)(a) when no confidence vote
has been passed against Prime Minister and the President is o1 the view that no other
Member of the National Assembly is likely to command the confidence of the majority;
(v) to dissolve the National Assembly if the two conditions, contained in sub-clause (b) of
Article 58(2) are fulfilled;
(vi) to accord approval to the Governor under Article 105(3)(4) of the Constitution for (a)
appointment of the Chief Minister, (b) dismissal of a Cabinet which has not the
confidence of the Provincial Assembly, (c) dissolution of the Provincial Assembly when
an, appeal to the electorate is necessary.
(vii) to appoint the Chief Election Commisioner under Article 213(1);
(viii) to appoint the Chairman, Federal Public Service Commission under Articie 242(lAl;
(ix) to appoint Chairman, Joint Chief of Staff Committee and Chiefs o1 Army, Naval and
Air Staff under Article 243(2)(c).
Page No. 7 of 116

(r) Constitution of Pakistan (1973)--
----Arts. 177 & 193---Appointment of Judges of Supreme Court and High Courts---
Making such appointment is an executive job.
(s) Constitution of Pakistan (1973)--
----Art. 48(1) & (2)---President to act on advice---Discretionary powers of President---

Application of Art. 48(1) & (2)---Categories of Articles of the Constitution for the
purposes of application of Art. 48(1) & (2) of the Constitution enumerated.
Prima facie the various Articles of the Constitution can be divided into following five
categories for the purpose of application of, Article ,48(1) and (2):-
(i) The Articles under which actions are to be taken in accordance with the advice
tendered by the Cabinet or Prime Minister;
(ii) the Articles under which the Prime Minister's advice is required but it will be binding
if it is in accordance with the law declared by the Apex Court;
(iii) the Articles which specifically provide for Prime Minister's advice or consultation
independent of clause (1) of Article 48, to which Articles, aforesaid Article 48(1), would
not be attracted to;
(iv) the Articles under which the President has been given discretionary power and,
therefore, he can act without the advice of the Prime Minister by virtue of clause (2) of
Article 48; .
(v) that the nature of the functions/duties/rights provided in certain Articles is such which
excludes the application of Article 48(1).
(t) Constitution of Pakistan (1973)-
----Art. 48(1)---Word "function" as used in Art.48(1) of the Constitution of Pakistan

(1973)---Connotation---Word "function" has very wide connotation and encompasses not
only executive functions but also judicial functions.--[Words and phrases].
Word "function" has very wide connotation. It encompasses nut only executive functions
but also judicial functions. The word "function" is derived from Latin word "tunctus". It,
inter alia, connotes the normal or proper activity of a person, institution, or the specific
duties of a person especially in a professional or official capacity, or duty peculiar to any
office. It includr_:~ "powers" and "duties".
Executive functions the in"panic of comprehensive definition but they can be described
as residue of functions of Government after legislative and judicial functions have been
taken out. Iii other words, executive functions are very wide in their import and scope.
Stroud's Judicial Dictionary, 3rd Edn., Vol. 2; Black's Law Dictionary 6th Edn., 1991;
Law Dictionary with Pronunciations, 2nd Edn. ' Ballentine' ; New Vebster's Dictionary
Deluxe Encyclopaedic Edn.; Chamber's 20th Century Dictionary (New Edn.) and
Halsbury's Laws of England, 4th Edn., para.814 ref.
(u) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48(1)---Appoiniment of Supreme Court and High Court Judges---
President to act on advice---Appointment of Judges of the superior Courts under Arts.
177 & 193 and/or under any other Article of the Constitution cannot be excluded from the
ambit of "functions" used in Art.48(1) of the Constitution of Pakistan.
(v) Constitution of Pakistan (1973)--
Page No. 8 of 116

----Arts. 190 & 189---Decision of Supreme Court---Binding in nature---Action in aid of
Supreme Court---Judgment of Supreme Court on interpretation of various Articles of the
Constitution becomes part of the Constitution and becomes the law and it is incumbent on
all Executive and Judicial Authorities throughout Pakistan to act in aid of Supreme Court
by virtue of Art. 190 of the Constitution.
(w) Constitution of Pakistan (1973)--
----Arts.48(1), 177, 193, 190 & 189---Appointment of Supreme Court and High Court
Judges---President to act on advice---Advice of the Cabinet or Prime Minister---
Interpretation of various Articles of the Constitution ?elating to the superior judiciary
given by Supreme Court in Al-Jehad Trust v. Federation of Pakistan and others PLD 1996
SC 324 is binding on the Executive, which includes the President, and the Prime
Minister---Advice of Prime Minister under Art.48(1) of the Constitution, therefore, has
not to be in violation of the law declared by the Supreme Court---If the advice tendered
by the Prime Minister in respect of appointments of the Judges of the superior Courts is
in accordance with the said judgment of Supreme Court, it will be binding on the
President--If, however, the advice is contrary to' the said judgment, the President has
several options---Some of such options for the President enumerated.
Interpretation ut various Articles zeiating to the superior judiciary given by Supreme

Court in the case Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 will be
binding on the Executive which includes the President, and the Prime Minister.
Since the interpretation of the various ~ Articles by Supreme Court becomes part of the
Constitution and as it becomes the law, it is incumbent on all Executive and Judicial
Authorities throughout Pakistan to act in aid of the Supreme Court by virtue of Article
190.
An advice under clause(1) of Article 48 of the Constitution, therefore, cannot be in

violation of the law as declared by Supreme Court. In other words, if the advice tendered
by the Prime Minister in respect of appointments of the
Judges of the superior Courts is in accordance with the judgment of Supreme
Court in the said case, it will be binding on the President. But if the advice is contrary to
the above judgment, the President has several options which, inter alia, include the
following:-
(i) The President may agree with the reasons recorded by the Prime Minister for not
accepting the recommendations of the Chief Justice or the Chief Justices. In that event
the above reasons will be justiciable as held by this Court in the Judges case.
(ii) The President may refer back the matter to the Prime Minister for
reconsideration under the proviso to clause (1) of Article 48.
(iii) The President may refer the matter for consideration of the Cabinet
under clause (c) of Article 46 of the Constitution.
(iv) The President may convene a meeting and may invite the Prime Minister, the
Chief Justice of Pakistan and the Chief Justice of High Court concerned for resolving the
issue by participatory consultative process, consensus-oriented.
(v) The President may make a reference to this Court under Article 186 for
soliciting opinion.
If there is no ambiguity as to the law declared by the Apex Court, the President cannot, in
breach of such law, act upon the advice of the Prime Minister, as it will not only be
violative of the judgment of the Apex Court but would also be in breach of the oath of
office.
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 and Supreme Court
Advocates-on-Record Association v. Union of India AIR 1994 SC 4 ref.
Page No. 9 of 116

Constitution of India by Dr. Durga Das Basu, 6th (Silver Jubilee) Edn., Vol. E (1981
Publication, p.273) dissented from.
(x) Constitution of Pakistan (1973)--
----Art. 48(1)---Application of Art. 48(1); Constitution of Pakistan--
Article 48(1) of the Constitution will not be applicable to the Articles of Constitution
which provide for a specific role for the Prime Minister--Illustrated with examples.
Clause (1) of Article 48 will not be applicable to the Articles of the Constitution which
provide for specific role for the Prime Minister. In this regard reference may be made to
some of the Articles as examples. Under clause (1) of Article 92, the President is required
to appoint Federal Ministers and Ministers of State on the advice of the Prime Minister.
Similarly under clause (1) of Article 93 the President is to appoint Adviser to the Prime
Minister not more than five on the advice of the Prime Minister. Whereas under clause
(1) of Article 101 the President has been empowered to appoint a Governor for each of
the Provinces after consultation with the Prime Minister.
Since Articles 92(1 j and 93(1 j expressly provide that rim President shall perform his
functions under the same on the advice of the Prime Minister, second advice of the Prime
Minister tinder clause (0 of Article 48 is not required, rarthermore, as under clause (1) of
Article 101 the role of the Prime
Minister is of a consultee, the same will exclude applicability of Article 48(1) of the
Constitution on the principle that a special/specific provision shall exclude a general
provision.
(y) Constitution of Pakistan (1973)--
----Art. 48(2)---Application of Art.48(2) of the Constitution---Provision of Art.48(2) is

relatable to those Articles which provide that President shall act in his discretion in
-respect of matters specified in those Articles and does not include any Article of the
Constitution, if any, relating to an implied power or discretion of the President.
Since new clause of Article 48(2) providing that notwithstanding • anything contained in
clause (1) the President ,shall act in his discretion in respect of any matter in respect of
which he is empowered by the Constitution to do so, was added simultaneously with the
amendments made in the relevant Articles providing that the President shall act at his
discretion in respect of the matters covered by the said Articles, clause (2) of Article 48 is
relatable to those Articles only. The same does not include any Article of the Constitution,
if any, relating to an implied power or discretion.
(z) Constitution of Pakistan (1973)--
__- Arts. 177 & 193 Appointment of Supreme Court and High Court Judges--i°owers of
the President and the Prune Minister to appoint Judges of tile superior Courts
---Determining factor on the question as to whether, the President or the rime Minister
has power to appoint the Judges of the superior.Courts will be the language employed in
the relevant Articles of the Constituduri.
(aa) Constitution of Pakistan (1973)--
----Art. 48(1)---Application of Art.48(f)---Provision of Art.48(1), Constitution of Pakistan

is not-applicable to the Articles of the Constitution wherein nature of the
functions/duties/rights provided are such which exclude the application of Art.48(1)---
Examples supplied.
Provision of Article 48(1) of the Constitution is not applicable to the Articles of the
Constitution wherein the nature of the functions/duties/rights provided is such which
excludes the application of Article 48(1).
Page No. 10 of 116

For example under clause (c) of Article 46, the President may require the Prime
Minister to submit for the consideration of the Cabinet any matter on which a decision
has been taken by the Prime Minister, whereas under proviso 1 to clause (1) of Article 48,
the President may require the Cabinet or as the case may be, the Prime Minister to
reconsider advice tendered under the above provision of the Constitution. Further, under
clause (1) of Article 56 the President may address either House or both Houses whereas
under clause (2) of the above Articles, the President may send messages to either House,
whether with respect to a Bill then pending in the Majlis-e-Shoora (Parliament) or
otherwise, and a House to which a message is so sent shall, with all convenient despatch,
consider any matter required by the message to be taken into consideration. Similarly,
under clause (2) of Article 75 the President has been empowered to return a Bill (other
than a Money Bill) to Majlis-e-Shoora for reconsideration.
The nature of functions mentioned in the above Articles is such that clause (1) of Article
48 of the Constitution is inapplicable. The above Articles create right in favour of the
President and corresponding duty on the part of the Prime Minister, Cabinet and the
Parliament. For exercising the above rights it is inconceivable that the President should
seek advice of the State functionaries against whom such rights are to be exercised in
respect of the legislative and executive functions referred to hereinabove.
(bb) Constitution of Pakistan (1973)---all
----Arts. 177 & 193---Appointment of Judges of Supreme Court and High C-)urts---Delay
in appointments in time-frame as specified by Supreme Court in A -Jehad Trust v.
Federation of Pakistan and others PLD 1996 SC 324 has to be averted.
A time-frame has been specified for the appointments of the Judges by Supreme Court in
its judgment given in Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC
324 against the permanent vacancies i.e. within 30 days in normal circumstances and 90
days when a vacancy occurs due to death of an incumbent or for any other reason before
attaining the age of superannuation. The question arises what will happen if the Prime
Minister's Secretariat does not forward the summary to the President within a reasonable
period after having received the same. One view can be that it can be presumed that the
Prime Minister does not have any objection or reservation to the recommendations made
by the Chief Justices and, therefore, one can infer that the Prime Minister has tendered
his/her advice in accordance with Article 48(1). The other possible and preferable view
can be that an advice to be tendered under the Constitution cannot be presumed to have
been impliedly tendered on account of an act or omission or inadvertence on the part of
the Prime Minister's Secretariat. The above view seems to be more in keeping the respect
of the high office of the Prime Minister which it carries because he/she represents the will
of the people.
However, delay can be averted by working out modalities in detail in respect of the
process of appointments of the Judges of the superior Courts. Since the dates of
rettreuierti of the Judges are known to the quarters concerned, the process of
appointment,, for tinuig to vacancies can be initiated much in advance. The period of 90
days for filling tai vacancies which may occur on account of death or for any other rein
seems to be reasonable and there should not be any difficulty in adhering to the above
time frame,
Copies of the summary can also be submitted to the President's Secretariat

simultaneously with the Prime Minister's Secretariat so that the President's Secretariat
may follow up the above matter and may carry out the initial processing.
(cc) Constitution of Pakistan (1973)--- '
----Arts. 177, 193 & 48(1)---Appointment of Judges of Supreme Court and High
Courts---President to act on advice---Articles 177 & 193 having not been specifically
provided for Prime Minister's advice or consultation independent of Art.48(1) of the
Constitution, provision of Art.48(1) of the Constitution of Pakistan would be applicable.
Page No. 11 of 116

Union of India v. Jyoti Prakash Mitter AIR 1971 SC 1093 and Anand Kumar v. Kattail
Bhaskaran (1988) 2 SCC 50 distinguished.
dd) Constitution of Pakistan (1973)--
----Arts. 177 & 193---Appointment of Judges of Supreme Court and High Courts is not a
judicial act.
(ee) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48---Rules of Business (1973), R.15-A, Sched. V-B, Items 31, 32 &
33---Appointment of Supreme Court and High Court Judges--President to act on advice
of the Cabinet or Prime Minister---Well-established convetiun that appointments of the
Judges in supefiui Courts have tea be made on the basis of the advice of the Prime
Minister in the Parliamentary Form of Govenment, can be pressed into service while
construing Arts. 177 & 193 of the Constitution of Palkistan
(ff) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48(1)---Appointment of Supreme Court and High Court Judges---
President to act on advice of Cabinet or Prime Minister---Since President is to pass a final
order after considering the Prime Minister's advice and the recommendations of the
consultees mentioned in Arts. 177 & 193 of the Constitution, he is the consulter in terms
of Constitution---Fact that the Prime Minister is to give advice under Art.48(1) of the
Constitution to the President militates against the view that the Prime Minister is the
consulter.
(gg) Constitution of Pakistan (1973)--
President to act on advice of the Cabinet or Prime Minister--Principle---For appointment
of Judges of the superior Courts under Arts. 177 & 193 of the Constitution, Art.48(1)
relating to Prime Minister's advice is attracted and the President shall act in accordance
with the same, provided it is in accordance with judgment of Supreme Court in the case
of AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
Per Saiduzzaman Siddiqui, J. agreeing with Sajjad Ali Shah, C.J.--
(hh) Constitution of Pakistan (1973)--
----Art. 189---Decision of Supreme Court---Binding nature---Disposal of a case by

Supreme Court as a result of compromise between the parties without adverting to the
legal issues cannot be treated as enunciation of law by Supreme Court within the meaning
of Art. 189 of the Constitution.
(ii) Constitution of Pakistan (1973)--
----Art. 189---Decision of Supreme Court---Binding nature---Where in a case, Supreme

Court had not found it necessary to go into certain question of law raised in the case,
decision of Supreme Court on other issues in the same case, would not amount to a
decision of Supreme Court on the said question of law so as to bar a decision on the same
question of law raised in another case.
(jj) Constitution of Pakistan (1973)---
----Preamble---Question as to the nature of Constitution, whether it is Parliamentary or

Presidential, has to be determined by the scheme of the Constitution---Principles.
The nature of the Constitution, whether it is Parliamentary or presidential to

character is determined by the schema of a Constitution. In a Constitution which
envisages a Parliamentary system of Government, the parliamentary is considered
supreme to all other organs of 'the State and the Cabinet consisting' of Ministers arid
Page No. 12 of 116

Prime Minister is responsible for running and managing the affairs of the Government.
The concept of responsible Government or collective responsibility of Cabinet to the
Parliament is inherent in this system. So long these features are present in the
Constitutional scheme, the -system retains the characteristics of a Parliamentary Form,
irrespective of the fact that some other powers under the Constitution are exercised by the
President.
The Courts while interpreting a written Constitution, will go by the ,wording of

the document and will not allow it to be influenced or overridden by
any extraneous principles of other Constitutions not explicitly incorporated in the scheme
chosen by the framers of the Constitution.
(kk) Interpretation of Constitution---
----Principles---Courts while interpreting a written Constitution, will go by the wording

of the document and will not allow it to be influenced or overridden by any extraneous
principles of other Constitutions not explicitly incorporated in the scheme chosen by the
framers of the Constitution.
(11) Constitution of Pakistan (1973)---
----Art. 48(l) & (2) [as amended by Constitution (Eighth Amendment) Act, (XVIII of
1985)]---Interpretation of Art.48(1) &- (2) of the Constitution of Pakistan (1973),
The omission of expression "shall be binding on him" from the original Article
48(1) of the Constitution by the Constitution (Eighth Amendment) Act, 1985 made not
much difference, in so far the authority of Prime Minister as the head of the Cabinet and
the Government was concerned. The omission of expression "shall be binding on him"
from sub-clause (1) of Article 48 was necessary to give full effect to the proviso which
was added to Article 48(1).
By omission of the expression "shall be binding on him" from sub clause (1) and
insertion of the proviso after this clause of Article 48, the only change in the scheme of
this Article brought about was, that under the original Article 48, the advice once
tendered by the Prime Minister was binding on the President but now the President is
authorised to refer back the advice to Cabinet or Prime Minister as the case may be, for
reconsideration. However, the advice received by President after such reconsideration is
binding under Article 48(1) of the Constitution. Similarly, sub-clause (2) of Article 48
vested the President with the power to act in his discretion wherever he is so authorised
under the Constitution.
The changes bought about, it. Article 4S(l, and (2; of the Constitution through the
8th Amendment were neither unique nor extraordinary in character nor they were
unknown in the Constitutional field. The makers of the Constitution, therefore, were
deemed to , be aware of the scope of these amendments and the manner in which these
amendments were interpreted: The powers of President under the Constitution, therefore,
remained confined only to the extent they were conferred on him specifically under
the Constitution.
Mian Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 493 ref.
(mm) Constitution of Pakistan (1973)-- .
----Arts. 177, 193, 48(1), (2) & 90---Rules of Business, 1973, Sched. V-B R.15-A(1),
Items Nos. 31, 32 & 33---Appointments of Judges of Supreme Court and High Courts---
President to act on advice of the Cabinet or Prime Minister---Advice of Prime Minister
was necessary under Art.48(1) of the Constitution in exercise of power by the President
under Arts. 177 & 193 of the Constitution of Pakistan while Art .48(2) of the Constitution
refers to the act: which President performs in his discretion---Insertion of R.15-A(1) in
Rules on Business, 1973 after the introduction of Eighth Amendment, supports the view
that amendments in Arts. 48 & 90 of the Constitution through Eighth Amendment did not
Page No. 13 of 116

affect the original scheme of the Constitution and advice of Prime Minister was necessary
in exercise of power by President under Arts. 177 & 193.
(nn) Constitution of Pakistan (1973)---
----Arts. 177, 193 & 48(1)---Appointment of Supreme Court and High Courts Judges---
Expression "functions" as used in Art.48(1) of the Constitution--Classification into
categories---Act of appointment of a Chief Justice or a Judge in the superior Courts is an
executive act, the appointment can be made only on the advice of the Prime Minister.
The expression 'functions' used in Article 48(1) can be classified in three

categories, namely, legislative functions, judicial functions and executive functions.
Functions which are neither legislative nor judicial in nature fall in the category of
executive functions. The act of appointment of a Chief Justice or a Judge in . the superior
Courts is an executive act. This being the settled position, the appointment can be made
only on the advice of the Prime Minister.
The advice of Prime Minister is necessary in the appointment of Judges of

superior Courts under Articles 177 and 193 of the Constitution by the President.
(oo) Constitution of Pakistan (1973)---
President to act on advice of the Cabinet or Prime Minister---Manner in which the advice
is to be tendered by the Prime Minister explained.
The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as
to fitness and suitability of a candidate for judgeship is entitled to be accepted in the
absence of very sound reasons to be recorded by the Executive/President. Appointment of
a person found unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the
Chief Justice of High Court concerned, would not be a proper exercise of power under
the relevant Articles of the Constitution. The time frame has been fixed by the Supreme
Court in AI-Jehad Trust case (PLD 1996 SC 324) for filling the permanent vacancies
occurring in the offices of Chief Justice and Judges not later than 30 days and for a
vacancy 'occurring before the due date on account of death or for any other reason, within
90 days on permanent basis. The advice of the Prime Minister to be binding on the
President must be in line with the above ratio in the case of Al-Jehand Trust.
If the Prime Minister within the time frame fixed in the judgment of Supreme
Court in AI-Jehad Trust case (PLD 1996 SC 324) fails to tender his advice, he or she shall
be deemed to have agreed to the recommendations of the Chief Justice of Pakistan and
that of the Chief Justice of Provincial High Court as the case may be, and the President
may proceed to make the final appointment on that basis.
Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646; Mian

Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Shamsher Singh v.
State of Punjab AIR 1974 SC 2192; Federal Government of Pakistan v. M.D.Tahir,
Advocate 1990 SCMR 189 and Supreme Court Advocates-on-Record Association v.
Union of India AIR 1994 SC 268 ref.
Per. Raja Afrasiab Khan, J. agreeing with Sajjad Ali Shah, C.J.--
(pp) Constitution of Pakistan (1973)--
----Preamble---Preamble as made substantive part of the Constitution as Art .2A

envisages the Parliamentary Form of Government.
(qq) Constitution of Pakistan (197'3)---
Page No. 14 of 116

----Art. 2A read with Annex---Interpretation of Art.2A of the Constitution--Term "people"
occurring in Annex. to . Art. 2A includes the whole mass of persons living in Pakistan
and would represent the whole nation.--[Words and phrases].
Macmillan Discretionary,
(rr) Constitution of Pakistan (1973)-
----Art. 218(3)---Elections---Elections have to be held strictly in accordance with law,

justly, fairly and honestly and corrupt practices are to be guarded against--Chief Election
Commissioner is not subordinate to any Authority while doing his duties in holding free,
fair and transparent elections.
(ss) Constitution--of Pakistan (19"3)---
----Arts. 62 & 63---Qualifications and disqualifications for membership of Parliament---

Chosen representatives of the people to fulfil all the qualifications mentioned in
Art.62---If any one is hit by any of the dis-qualifications under Art-63 of the
Constitution he will be declared to have lost his membership or shall be disqualified
from being elected as Member of the Parliament by the competent Authority.
(tt) Constitution of Pakistan (1973)--
----Arts. 46, 48 & 91---Prime Minister---Prime Minister is not subordinate or inferior to

the President.
Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others PLD 1993
SC 473 ref.
(uu) Constitution of Pakistan (1973)---
----Preamble & Arts. 177, 193 & 480)(2) [as amended by Constitution (Eighth
Amendment) Act (XVIII of 1985)]--Effect of amendment of Art.48(1) of the Constitution
by Constitution (Eighth Amendment) Act, 1985---Basic structure viz. Parliamentary
Form of Government was not changed by the Eighth Amendment and it remained the
same as it was---Appointment of Supreme Court and High Courts Judges---President to
act on advice---President is bound to act in accordance with the advice of the Cabinet or
the Prime Minister---President, can send back the advice to the Prime Minister for
reconsideration--Nevertheless, the President shall act according to the advice after its
reconsideration---President, however, has discretionary powers to be exercised by him to
meet an appropriate situation.
It is true that drastic changes have been made in the Constitution by means of
Constitution (Eighth Amendment) Act, 1985 under which specific powers have been
given to the President. This is surely a scheme to create balance of powers between the
President and the Prime Minister. However, the fact remains that the basic structure
namely Parliamentary Form of Government was not touched by the Eighth Amendment.
It remains the same as existed in the original Constitution. Under Article 48(1), the
President is bound to act in accordance with the advice of the Cabinet or the Prime
Minister. The President may send back the advice to the Prime Minister for
reconsideration. Nevertheless, the President shall act according to the advice after its
reconsideration. Language of clause (1) of Article 48, even after amendment does
indicate that the powers of the Prime Minister have not been affected so substantially so
as to conclude that the system has been changed. The original system of Government
remains in the field only with the change that some more powers were specifically given
to the President to be exercised by him in his discretion to meet an appropriate situation.
(vv) Constitution of Pakistan (1973)---
----Art. 91---Prime Minister---Prime Minster is Chief Executive anti Cabinet headed by

the Prime Minister is to aid and advise the President in the exercise of his functions---
Prime Minister in his/her own right has the powers to run the affairs of the Federation.
Page No. 15 of 116

Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others PLD 1993
SC 473 ref.
(ww) Constitution of Pakistan (1973)---
Provision of Art.48(1), Constitution of Pakistan (1973), would be applicable in case of
such appointments---If, however, the Prime Minister, within the time-frame fixed in the
judgment of Supreme Court in Al-Jehad Trust's case .PLD 1996 SC 324 fails to tender his
advice, he or she, shall be deemed to have agreed to the recommendations of the Chief
Justice o1 Pakistan and that of Chief Justice of Provincial High Court as the case may be,
and the President may proceed to make the final appointment on that basis.
(xx) Constitution of Pakistan (1973)--
----Arts. 189, 190 & 204---Decision of Supreme Court---Action in aid of Supreme

Court---Supreme Court decides cases involving interpretation of the constitutional
provisions in its capacity as administrator of the will of the people---Interpretation of the
Constitution by Supreme Court becomes a part and parcel of the Constitution and the law
which, in turn, shall be obeyed/followed by all and sundry in letter and spirit---Intentional
non-implementation of judgment of Supreme Court---Effect---Article 204 of the
Constitution of Pakistan (1973) will be attracted to take action against the person/persons
who do not intend to implement the judgment of Supreme Court.
Supreme Court, undoubtedly, decides cases involving interpretation of the

Constitutional provisions in its capacity a,, administrator of the will of the people. This
interpretation becomes a part and parcel of the Constitution and the law which, in tun,
shall be obeyed/followed by all and sundry in' letter and spirit.
If the judgment of Supreme court is not implemented intentionally, an answer to the

question has been given under Article 204 of the Constitution. This shall clearly mean
that the order/decree of the Court has been disobeyed. The constitutional command is that
the law declared by the Supreme Court shall bind all Courts of the country. Article 190 of
the Constitution has ordained that all Executive and Judicial Authorities throughout
Pakistan shall act in aid of Supreme Court of Pakistan . Provisions of Article 204 will be'
attracted in case of Icon-implementation of judgment of Supreme Court. Under Article 5,
obedience to the Constitution and law is the inviolable obligation of every citizen of
Pakistan. Article 25 states that all the citizens are equal before law and are entitled to
equal protection of law. In other words. no citizen how high so ever he may be, can claim
exemption/immunity from the application of law of the land. This being the position,
every person in authority is bound to come in aid of Supreme Court in the
implementation of its judgment whether or not such a person is called upon to do so.
Article 204 of the Constitution will be attracted to take action against the
person/persons who do not intend to implement the judgment of Supreme Court.
State v. Ziaur-Rehman PLD 1973 SC 49 ref.
(yy) Interpretation of Constitution-
---- Written Constitution---Well-established conventions and practices are always treated

as part of the Constitution provided they do not violate/contravene the provisions of a
written Constitution.
(zz) Constitution of Pakistan (1973)-
----Arts. 177, 193 & 48---Rules of Business, 1973, R.15-A---Appointment of Supreme

Court and High Courts Judges---Rules of Business, 1973 framed under Arts. 90 & 99
being still in force and their vires having never been challenged or questioned, President
is to act on advice of the Prime Minister in such appointments---Prime Minister shall
propose and recommend the names of the candidates for their appointment as Judges.
Page No. 16 of 116

(aaa) Constitution of Pakistan (1973)--
----Arts. 90 & 99---Rules of Business, 1973---Rules of Business, 1973 are not equal to
the Constitution status-wise.
(bbb) Constitution of Pakistan (1973)--
----Arts. 177, 193 & 48---Appointment of Supreme Court and High Courts Judges---
President to act on advice of the Prime Minister---Procedure regarding appointments of
Judges of superior Courts laid down in AI-Jehad Trust v. Federation of Pakistan PLD
1996 SC 324 has to be treated as final qua such appointments---Chief Justice of Pakistan,
being the head of the Judiciary has the right of primacy on the issue and his opinion shall
hold the field and has to be treated as the last word---Advice of the Prime Minister shall
be accepted by the President ,provided the same is in accordance with the procedure laid
down by the Supreme Court in Al-Jehad Trust case---Where, however, it is shown that
the candidates for judgeship are not entitled to be appointed for lack of qualification or
any fraud or misrepresentation has been found, Chief Justice of Pakistan may review his
earlier recommendations on the basis of documentary evidence disclosing fraud or mis-
representation- --Procedure of appointment of Judges as emanating from the decision of
Supreme Court in Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324
recapitulated.
AI-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.
Petitioner in person (in Constitutional Petition No.23 of 1996).
Shahid Hamid, Advocate Supreme Court (on behalf of the President) (in
Reference No.2 of 1996).
Abid Hasan Minto, Senior Advocate Supreme Court (before 5-11-1996) with Raja
Abdul Ghafoor, Advocate-on-Record and after 5-11-1996 Shahzad Jehangir, Attorney-
General for Pakistan for Respondent No. l (In both Constitutional Petitions).
Shahid Hamid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-
on-Record for Respondent No.2 (in both Constitutional Petitions).
S. Iqbal Haider, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-
Record (after 5-11-1996) . for Respondent No.3 (in both Constitutional Petitions).
Qazi M. Jamil, Attorney-General for Pakistan (on 9-10-1996 only).
S. Iqbal Haider, Attorney-General for Pakistan (before 5-11-1996), Shahzad

Jehangir, Attorney-General for Pakistan (after 5-11-1996), Muhammad Akram Sheikh,
Senior Advocate Supreme Court, President Supreme Court Bar Association, Tariq Pervez,
Advocate Supreme Court, President, Peshawar High Court Bar, Ejaa Yousaf, Additional
Advocate-General, Balochistan and A.-G., Shah Jehan Yousafzai, Addl. A.-G., N.-W.F.P.,
Zafar Pasha, A.G., Punjab, Shabbar Raza Rizvi, Addl. A.-G., Punjab, Rao M. Yousaf,
Advocate on-Record, M.L. Shahani, A.-G., Sindh, Hamid Khan, Advocate Supreme
Court on behalf of Pakistan Bar Council and M. Bilal, Senior Advocate Supreme Court
(on Court's Notice).
Zafar Awan, Advocate High Court, Agha Dilawar Khan and Shahid Orakazai,
Journalist (from the Public).
Syed Sharifuddin Pirzada, Senior Advocate Supreme Court and S.M. Zafar,
Senior Advocate Supreme Court : Amicus curiae.
Dates of hearing: 9th, 20th to 23th; 27th to 30th October, 3rd to 5th, 23rd to 27th
November and lst to 4th December, 1996.
JUDGMENT
Page No. 17 of 116

SAJJAD ALI SHAH, C.J.--In order to comprehend importance of the points involved in
these matters for adjudication, it is essential to record the facts in the background., On
20th March, 1996, this Court passed Short Order whereby C.P. 29/1994 and Civil Appeal
805/1995 filed by Al-Jehad Trust through Mr. Habib Al-Wahabul Khairi, were allowed
after interpreting relevant Articles in the Constitution pertaining to judiciary and laying
down criteria for appointment of Judges in the Supreme Court and High Courts as
envisaged it the Constitution. Later, detailed reasons were released in support of the
Short Order on 3-4-1996. These cases have come to be popularly known a: ' appointment
of Judges case' and the main judgments and Short Order therein are reported in Al-Jehad
Trust v. Federation of Pakistan and others PLD 199E SC 324.
2. Some of the salient points decided in the case of appointment of Judge! are; that
'consultation' is defined as effective, meaningful, purposive. consensus-oriented, leaving
no room for complaint of arbitrariness or unfair play. Recommendations made by the
Chief Justice of the High Court and Chief Justice of Pakistan in respect of appointments
of Judges in the High Court are to be accepted by the President/Executive in the absence
of very sound reasons to be recorded. Acting Chief Justices are not consultees within the
Constitutional scheme. Ad hoc and Acting Judges can be appointed in the Supreme Court
only after sanctioned strength is exhausted. Vacancies to be filled ordinarily within 30
days and in extraordinary circumstances within 90 days. Senior most Judge in the High
Court has legitimate expectancy to become Chief Justice and Additional Judges in the
High Courts have legitimate expectancy to be made permanent .fudges. transfer of a
Judge of the High Court without his consent and induction in the Federal Shariat Court is
violative of Article 209. Ten years active practice as Advocate of the High Court is
mandatory for a Member of Bar for appointment 'as a Judge in the High Court as against
enrolment simpliciter. Judge of the Supreme Court may not be sent as Acting Chief
Justice of the High Court. '
3. After passing of Short Order on 20-3-1996 and before the detailed reasons were
released on 3-4-1996 some steps were taken towards the implementation of the judgment.
On 25-3-1996, in the Full Court Meeting of Supreme Court, decision was taken not to
include in the Roster Ad hoc Judges till their regularization or otherwise. On this account
six Judges of this Court were affected. On 28-3-1996 two Acting Chief Justices of Lahore
and Sindh High Courts respectively were recalled to work in the Supreme Court as
permanent Judges. On 28-3-1996, the then Prime Minister, Mohtrama Benazir Bhutto,
commented adversely upon the judgment of the Supreme Court in the appointment of
Judges case, in the National Assembly and that speech was televised and published in
news media. On 31-3-1996, one Acting and two Ad hoc Judges of the Supreme Court
were confirmed/made permanent. After release of detailed judgments on 3-4-1996,
meeting of the Committee of Chief Justices took place in Islamabad to consider ways and
means to implement the judgment and it was left open to the Chief Justices of the High
Courts and Federal Shariat Court to take appropriate action in that respect.
4. On 4-6-1996, two notifications were issued extending for six months terms of
appointments of Mr. Justice Rana Baghwan Das of Sindh High Court and Mr. Justice
Javaid. Nawaz Gandapur of Peshawar High Court in spite of the fact that the Chief
Justices recommended their confirmation. On 6-6-199) meeting of the Committee of the
Chief Justices took place in Lahore High Con to survey progress of implementation of
judgment and consider the effect of extension of two High court judges against the
recommendations of the Chief Justices. On 8-6-1996, meeting of the Committee of Chief
Justices took puce Murree and with the consent of all decision was taken in consequence
where Additional Judges, who were not recommended for regularisation were laid o with
effect from 16-6-1996 (9 from Lahore, 5 from Sindh and 3 from Peshawer High Courts).
5. In spite of the decision taken by the Committee of the Chief Justice with regard to
the laying off of Judges in the High Courts, affected Judges continued to enjoy fringe
benefits connected with such posts and were not officially de-notified. News item
appeared in Daily Nawa-i-Waqt, Rawalpind on 4-8-1996 that the Prime Minister would
call affected Judges and ask them to resign and such Judges would be accommodated in
other Government departments. Mr. Justice Shaft Muhammadi was Judge of Sindh High
Court and at the relevant time was working as Judge of the Federal Shariat Court. He was
Page No. 18 of 116

not to be regularised and was laid off. He was allowed to work in the Court After hearing
bail application in a criminal matter, he passed order dated 10-7-1996 in which he made
adverse comments on the judgment of the Supreme Court in the appointment of Judges
case, in an insolent manner. Criminal Petition No.26/1996 was filed in this Court for
cancellation of bail and copy of, the detailed order was also produced. That order was
published in the newspapers as well. Finally, notice of contempt of Court was issued to
the learned Judge. The contempt matter is still pending, ultimately, learned Judge
resigned on 1-9-1996 and his resignation was accepted by the President of Pakistan and
in consequence he ceased to hold office as a Judge of Sindh High Court as also of the
Federal Shariat Court. '
U. Against cite backdrop of facts and events mentioned in above paragraphs three Civil
Review petition Nos.32, 33 and 34 of 1996 were filed. Two of the were filed by
Federation of Pakistan through Secretary, Mainstay of Law and justice 19-5-1996 and
third was filed by Governor of Punjab on 21-5-199 In these petitions review was sought
of judgment of this Court in the case appointment of Judges on various grounds. On 19-5-
1996, Reference was filed under Article 186 of the Constitution by the Federal
Government, last page which showed that it was not signed by the President of Pakistan
but was filed through Mr. Justice Muhammad Arif, Secretary, Ministry of Law, Justice a
Parliamentary Affairs, and settled by Qazi Muhammad Jamil, Attorney-Gene for Pakistan
and was signed by both of them apart from Advocate-on-Record On office objection,
Reference was returned for signature of the Preside which was done and then it was re-
filed and numbered as Reference No. l/199 One common factor was noted in Reference
No.l/1996 and Review Petition Nos.32 to 34/1996 that in the Reference six questions had
been asked a identical questions of the same nature differently worded were raised in
Civil Review Petitions mentioned above. Review Petitions were fixed for hearing before
a Full Bench of seven Judges at Lahore and on 3-7-1996 Order was passed by this Court
directing Federal Ministry of Law to produce record relating to confirmation of
Additional Judges of Lahore and Sindh High Courts a day before the announcement of
the Short Order on 20-3-1996 in the case of appointment of Judges on the next date of
hearing. On 7-7-1996 Mr. Aitzaz Ahsan, learned .Advocate Supreme Court for the
petitioners, made a statement before: the Court that he had instructions to say that if the
Bench was not reconstituted, he would withdraw the Review Petitions. Request for re-
constitution of the Bench was rejected by the Chief Justice in view of the case of Zulfikar
Ali Bhutto v. The State PLD 1978 SC 125 and in the result Review Petitions were
dismissed as withdrawn.
7. Constitution Petition 23/1996 was filed by Al-Jehad Trust through Mr. Habib Al-
Wahabul Khairi on 21-4-1996 under Article 184(3) of the Constitution with ten prayers
relating to the functioning of judiciary including that in the appointments of Judges, apart
from Chief Justices of the High Court and Supreme Court, authority on behalf of the
Federal Government should be exercised only by President and any other view would run
counter to the independence of judiciary. Record relating to the appointments of Judges
o1 superior Courts is not privileged and should be shown on demand to the citizens and
lawyers on the basis of right to information. Judge of the High Court should not be
appointed as Law Secretary and Chief Justice of the High Court should not be appointed
as Governor. In this petition order was passed for issuance' of notice to respondents. C.P.
54/1996 with title 'Zafar Iqbal Chaudhry. Advocate, Supreme Court v. Federation of
Pakistan' was filed on 26-8-1996 under Article 184(3) of the Constitution. Other
respondents in this petition are: President of Pakistan, Mohtrama Benazir Bhutto, the then
Prime Minister and Secretary, Ministry of Law and Justice, Government of Pakistan.
Prayer in this petition. is that petitioner seeks protection and enforcement of his
Fundamental Rights under Articles 4, 14 and 25 with declaration from the Court that
Prime Minister has no power/authority under Article 48 of the Constitution to interfere, in
any manner, in the matters of appointments of Judges of superior Courts.
8. President of Pakistan has filed Special Reference No.2 of 199( on 25-9-1996 under
Article 186 of the Constitution. It is stated in the said Reference that the President as the
appointing authority of the Judges of the Supreme Court and High Courts has the
Constitutional duty to make suck appointments. Since it is mentioned in the Objectives
Resolution watch is no only reflected in Preamble but is now substantive part of the
Constitution in the shape of Article 2A, which provides that Independence of the
Page No. 19 of 116

Judiciary shall be fully secured, question has teen trained fear opinion of the Supreme
Court to the effect whether or not the powers of the President to make appointments of
Judges in the Supreme Court and High Courts under Articles 177 and 193 of the
Constitution are subject to the provisions of Article 48(1) of the Constitution. It would be
pertinent here to mention that Article 48(1) envisages that in the exercise of his functions,
the President shall act in accordance with the advice of the Cabinet or the Prime Minister.
'
9. References Nos. l and 2 of 1996 end Constitutional Petitions Nos.23 and 54 of 1996
were placed for hearing before a Bench of three Judges on 9-10-1996. It was pointed out
to the Court that President of Pakistan had been pleased to appoint Mr. Shahid Hamid,
Advocate, Supreme Court to represent him in all matters relating to Reference No.l of
1996. Mr. Shahid Hamid informed the Court that since in Reference No.l of 1996 same
questions are raised which were raised in Review Petitions Nos.32 to 34 of 1996 and the
said Review Petitions were dismissed as withdrawn, President considers this Reference to
have become infructuous and therefore has dissociated himself from that Reference. Qazi
Muhammad Jamil, the then Attorney-General for Pakistan, present in the Court, stated
that Presidential Reference was always filed on the advice of the Prime Minister and he
as the Attorney-General representing the Federal Government had no instructions to
withdraw the same, hence requested for time to obtain instructions. In Reference No.2 of
1996 Mr. Shahid Hamid appeared for the President and the learned Attorney-General
stated that he had no nexus with that Reference and requested for time to seek further
instructions from the Federal Government. It was noticed that in C.P. No.23/1996 and
C.P. No.54/1996 common point involved was interpretation of Article 48 to the effect
whether advice of the Prime Minister was binding or not on the President in respect of
appointments of Judges in the superior Judiciary hence notices Were issued to the learned
Attorney-General for Pakistan as contemplated under Order XXVII-A, Rule f , C.P.C.
and also to the respondents in loth Constitutional petitions. The Court directed that the
further hearing of these matters would come up before a larger Bench and M/s. S.
Sharifuddin Pirzada and S.M. Zafar, Senior Advocates Supreme Court were requested to
assist the Court as amicus curiae. Hearing was adjourned to date in office.
10. Hearing of two References and two Constitutional petitions mentioned above
carne up again on 20-10-1996 at Islamabad before a Bench of five Judges. In the
meantime, Qazi -Muhammad Jamil had resigned and in his place Syed Iqbal Haider was
appointed as Attorney-General for Pakistan. Syed Iqbal Haider appeared in Reference
No. l of 1996 and Mr. Shahid Hamid appeared in Reference No.2 of 1996 and also
appeared for respondent No.2 in C.P. No13 of 1996. In response to Court notice Syed
lqbal Haider also appeared as Attorney-General for Pakistan and Syed Sharifuddin
Pirzada, Senior Advocate Supreme Court, was present in the Court as amicus curiae.
Syed lqbal Haider produced a copy of ex post facto approval by the Cabinet to Reference
No.2 of 1996 filed by the President, copy is available on the record.
11. On 21-10-1996 Mr. M. Bilal, Senior Advocate Supreme Court, present in the Court
informed that since the case was of utmost importance and involved questions of
interpretation of Articles of the Constitution, which have nexus with Independence of
Judiciary, hence he requested that representatives of the Bar Associations be invited to
assist the Court. The request was accepted and such order was passed for issue of notices
to the Presidents of Supreme Court Bar Association and Bar Associations of all the four
High Courts and Advocates General of Provinces to assist the Court. Notice was issued to
the Pakistan Bar Council to send a representative to assist the Court.
12. On behalf of the Federal Government in Reference No. l of 1996 Raja Muhammad
Bashir, learned Deputy Attorney-General filed .M.A. No.657 of 1996 with prayer for
constitution of Full Court for hearing of the two References and two C.Ps. Since the
prayer related to the constitution of Bench, which is the exclusive function of the Chief
Justice, the application was heard in Chamber by the Chief Justice and the request was
rejected vide Order dated 23-10-1996 on the ground that it was not necessary to
constitute Full Court for hearing of References in view of the case-law on the subject.
Hearing of the matters by Bench of five Judges resumed and made progress. On 29-10-
1996 Syed lqbal Haider, Attorney-General for Pakistan, filed an application praying that
compromise dated 18-12-1989 arrived at between the then President, Mr. Ghulam Ishaq
Page No. 20 of 116

Khan, and Prime Minister, Mohtrama Benazir Bhutto be placed on the record. It was
ordered that application be registered, notices be issued to the petitioners in the two
Constitutional petitions and respondent No. 2.
13. On 5th November, 1996, when the cases were fixed for hearing in the Court,
Government of Prime Minister Mohtrama Benazir Bhutto was dismissed and National
Assembly dissolved by proclamation of the President passed under Article 58(2)(b) of the
Constitution. Time was sought by Mr. Abid Hasan Minto who was appearing for Federal
Government and Mr. Shabbar Raza Rizvi, Additional Advocate-General Punjab, and Mr.
Shah Jehan Yousafzai, Additional Advocate-General, N.-W.F.P., to seek instructions from
their respective Governments. Syed Sharifuddin Pirzada, learned amicus curiae present in
the Court, also supported the request for adjournment to enable the other counsel to seek
further instructions and requested that proper finding should be given by the Court on the
point which is in dispute. In the circumstances, hearing was adjourned to a date after two
weeks.
14. On 23-11-1996_ Mr. Shahzad Jehangir, appeared in the Court as new Attorney-
General for Pakistan and stated that he represented the Federal Government arid had
instructions to say that' lad wanted to withdraw Reference No. I of 1996. As a
consequence the Reference stood withdrawn.
. 15. Syed lqbal Haider filed two applications in two C.Ps.23 and 54 of 1996, on behalf
of Mohtrama Benazir Bhutto, who was impleaded as respondent No.3 in her capacity as
Prime Minister of Pakistan and prayed that she be allowed to remain as respondent No.3
in her private capacity and to contest the proceedings. Prayer was allowed to that extent
and Mr. Iqbal Haider was also allowed to appear for her.
16. Above narrative of facts shows that Reference No. l / 1996 stands withdrawn and
Reference No.2/1996 filed by the President of Pakistan through his private counsel, Mr.
Shahid Hamid, has been accorded ex post facto approval by the Cabinet as has been
informed by Syed lqbal Haider, the then Attorney-General for Pakistan. In this Reference
apparently now there is no objection front any quarter so far as its maintainability is
concerned. One thing; is very clear in this Reference as it stands now that the President of
Pakistan is represented not by Attorney-General who normally represents the Federal
Government which includes both President and Prime Minister and instead of
that President is represented by private counsel and there is approval by the Cabinet and
copy of such ex post facto approval is brought on the record by the Attorney-General of
Pakistan who, now seemingly represents only the Prime Minister. This fact in itself
shows the extent of gulf of differences between President and Prime Minister who have
both taken up contrary stands on the
question of interpretation of Article 48(1) of the Constitution vis-à-vis appointments in
the Superior Judiciary on the question whether advice of the Prime Minister is binding on
the President or not.
17. In the Memorandum of Reference No.2/1996 filed by the President of Pakistan it

is stated that after tile judgment of 20-3-1996 in the appointment of Judges case, in the
process of implementation of tile judgment, some directions have been complied with
and the others have not, particularly in respect of the Judges who were not recommended
for regularisation and the Chief Justice of Pakistan wrote to the President to intervene to
break the deadlock. As against that the then Prime Minister took up the position that there
was no deadlock and she was tile head of the Government of which the Chief Justice was
a part and the Government was consulting him in spite of the fact that his own position
was disputed through a petition pending before the Peshawar High Court arid steps were
being taken to decide the cases of the Judges who were not recommended for
regularisation. From the Memorandum of Reference No.2t f 996 relevant portion at pages
13 and f2 is reproduced as under:
"The .fudges of the Supreme Court and the High Courts are holders of Constitutional
office. The requirement and mandate of the Objective Resolution, which now
forms a substantive part of the Constitution, is that such appointments be made in
order to fully secure the independence of the judiciary. It is therefore a moot
point whether the President's power to make such appointments is subject to the
Page No. 21 of 116

provisions of Article 48(1) which prescribes that in the exercise of his functions
the President shall act in accordance with the advice of the Prime Minister.
In this matter, the following points need consideration:---
(i) the appointments to the Constitutional offices forming part of .the judicial organ of
the State, would appear to be a sacred Constitutional duty and not the exercise of an
executive function;
(ii) the appointments of the Judges of the Supreme Court and the High Courts are to
be made by the President after consultation with named Constitutional consultees. It
appears prima facie that the power to make these appointments after such consultation is
within the ambit and scope of Article 48(2) on the Constitution.
(iii) As events since the announcement of the Supreme Court Judgment in the Al-Jehad
Trust case have shown, the prime Constitutional objective of securing the
independence of the judiciary requires that the President should be the effective
appointing authority for Judges forming part of the Judicial organ of the State, in
accordance with the judgment given in that case. "
The above quote shows clearly that in respect of appointments of Judges in the superior
Courts the President wants to know whether he is bound by the advice of the Prime
Minister as contemplated under Article 48(1) of the Constitution or such appointments
are covered by Article 48(2) in which President has been given power to act in- his
discretion without advice of the Prime Minister. Article 186 of the Constitution, which
relates to the advisory jurisdiction of the Supreme Court, contemplates that if at any time,
the President considers that it is desirable to obtain opinion of the Supreme Court on any
question of law which he considers to be of public importance, he may refer the question
to the Supreme Court for consideration. Concept of advisory jurisdiction of the Supreme
Court goes back and originates from section 213 of Government of India Act, 1935,
under which Governor-General could send a question of law, which was of such a nature
and of such public importance to the Federal Court for consideration, if it was considered
by him to be expedient to do so. After partition when Pakistan came into existence, in our
first 1936 Constitution provision was made for advisory jurisdiction of the Supreme court
under Article 162 to enable the President. to obtain opinion from the Supreme Court of
Pakistan if it appeared to him that question of law has arisen or is likely to arise, which is
of such a nature and of such public importance. In our 1962 Constitution Article 59
provided that the Presented, if he considers desirable tee obtain the opinion on any
question' of law which he considers of public importance he may refer the question to the
Supreme Court for consideration. 'The same provision is written in 1973 Constitution.
Opinion-of-the Supreme Court is just opinion with explanation on the question of law
and is not of binding nature and it is up to the President or the Federal Government to act
upon it or not.
18. What is question of law which President considers to , be of public importance

would vary from case to case. In some cases it can be a question of law and of public
importance in which Federal Government as a whole is interested to make enquiry
without there being any difference of opinion between President and the Prime Minister.
19. For such a situation,, which is the normal course, it is indisputable that advisory
jurisdiction of the supreme Court can be invoked by the President on the advice of the
Prime Minister. With the exception of 1962 Constitution which envisaged exclusively
Presidential Form of Government, our Constitution of 1956 and present Constitution of
1973, both provide for Parliamentary Form of Government with Federal Government
composed of President and the Prime Minister.
20. Article 90 of our 1973 Constitution envisages that the Executive Authority of the
Federation shall vest in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution. Article 99
provides that all Executive actions of the Federal Government shall be expressed to be-
taken in the name of the President. In E exercise of powers conferred by both these
Articles, the Federal Government has' made Rules of Business of 1973 under Schedule V-
B, Rule 15-A(1), list is made of cases requiring orders of President on the advice of the
Page No. 22 of 116

Prime Minister. Entry No.54 specifically mentions Reference to the Supreme Court on
any question of law to be filed under Article 186, which is to be done on the advice of the
Prime Minister. The only difference in the Reference under consideration before us, is
that initially it was filed by the President without the advice of the Prime Minister as he
wanted to find out whether advice of the Prime Minister is binding upon him or not as
contemplated under Article 48(l) of the Constitution in respect of the appointments of
Judges in the Superior Courts. Earlier, Reference No. 1 of 1996 was -filed by the Federal
Government in .the Supreme Court which was not signed by the President and when it
was returned by the Office of the Supreme Court with such objection, only then it was
signed by the President and re-filed. This only shows differences prevailing between the
President' and Prime Minister on the question whether advice of the Prime Minister is
binding upon President or not in respect of appointments of Judges in the Superior
Judiciary and particularly in view of implementation of the judgment of the Supreme
Court in the case of appointment of Judges. However, even in Reference No.2 of 1996
during the hearing in the Court ex post facto approval was obtained from the Cabinet and
such copy was, brought on the record. So, it can be safely said that maintainability of
Reference No.2 of 1996 is not open to question on any ground. Moreover, the same
question of law upon which opinion of this court is being sought under advisory
jurisdiction is also if pending before us in the adjudicatory jurisdiction in C.P.23/1996
and C.P.54/1996 which are being heard alongwith this Reference. Finding of this Court
rendered under adjudicatory jurisdiction is binding upon all and can be considered as
opinion rendered under the advisory jurisdiction as well.
21. Before we take up merits, it would be pertinent to point out that issue of
maintainability of Reference No.2/1996 is finally clinched as is held in paragraph 20 (at
page 15) of this judgment. Now, so far maintainability of C.P. 23/1996 and C.P.54/1996 is
concerned such objection is raised by Mr. Abid Hasan Minto, who appeared for the
Federal Government before Proclamation of dissolution was issued by the President. This
objection was vociferously re-agitated by Syed Iqbal Haider who appeared for Mohtrama
Benazir Bhutto, who contested the proceedings in her private capacity after she ceased to
be the Prime Minister.
22. In C.P.23/1996 Mr. Habib AI-Wahabul Khairi, Advocate, is petitioner and in the
case of appointment of Judges he was petitioner in C.P.No.29/1994 which was directly
filed by him under Article 184(3) of the Constitution. In that petition he had prayed that
Articles relating to the Judiciary in the Constitution may be interpreted and should be
followed and acted upon to ensure and promote Independence of Judiciary. It was pointed
out by him that his Fundamental Right under Article 18 of the Constitution relating to
freedom of trade, business or profession has been violated as he practises law in the
Courts and cannot perform his duties as a lawyer, satisfactorily if the Judiciary is not
independent. He pointed out Pakistan Bar Council Act, 1973 and Rules framed
thereunder and made reference to Rules 165 and 175-A to point out that it was duty of
Advocates to prevent political considerations from outweighing judicial fitness in the
appointments of Judges and if he showed lack of endeavour in that context he would be
guilty of professional misconduct. His petition was held to be maintainable as it was
being heard alongwith other matter in which common questions were involved. In
C.P.29/1994 petitioner had not touched directly the question of applicability of Article 48
in respect of appointment of Judges as contemplated under Articles 177 and 193 of the
Constitution but this question was impliedly there as he had prayed for interpretation of
Articles relating to the Judiciary as such. Secondly, question with regard to the
applicability of Article 48 in that case was taken up by Syed Sharifuddin Pirzada, Senior
A.S.C., who appeared in that case as amicus curiae but was left out unattended to be
decided later in some other case.
23. After the announcement of judgment in the case of appointment of Judges arising
from C.P.29/1994, petitioner Mr. Habib Al-Wahabul Khairi, filed C.P.23/1996 on 21-4-
1996 under Article 184(3) of the Constitution with prayer, inter alia, that advice of the
Prime Minister is not binding on President in respect of appointment of Judges and record
of appointments to be shown to him and strength of Judges in the Supreme Court and
High Courts should be fixed by law. Federal Government filed Civil Review Petitions 32
and 33/1996 on 19-5-1996 and Civil Review Petition No.34/1996 was filed by the
Governor of the Punjab on 21-5-1996, in which petitioner, Mr. Khairi, filed
Page No. 23 of 116

Miscellaneous Application No.359/1996 praying that alongwith the Review Petitions, his
C.P. 23/1996 should also be heard together as subject-matter is the same, which involves
interpretation of Articles relating to the Judiciary. Review Petitions were then dismissed
as withdrawn. Special Reference No. l/1996 which contained same grounds as in Civil
Review Petitions has been withdrawn. Special Reference No.2/1996 filed by the
President contains prayer with regard to the interpretation of Article 48 vis-a-vis Articles
177 and 193 of the Constitution to find out whether advice of Prime Minister is binding
on President or not in respect of appointments in Superior Judiciary. This Special
Reference No.2/1996 is declared maintainable. Hence, C.P.23/1996 is also maintainable.
C.P.54/1996 is filed under Article 184(3) of the Constitution by petitioner, Zafar Iqbal
Chaudhry, who is an- Advocate, and contains the same prayers requiring interpretation of
Article 48 whether advice of Prime Minister is binding on President or not in respect of
appointments in Superior Judiciary. Therefore, for reasons stated above we hold that both
these petitions are maintainable.
24. In C.P.23/1996, fled by Al-Jehad Trust, respondent No.2 is President of Pakistan,

who has been represented all along by private counsel, Mr. Shahid Hamid. In this petition
respondent No.3 is Mohtrama Benazir Bhutto as Prime Minister and at a later stage after
she ceased to be Prime Minister, requested to be allowed to remain respondent No.3 in
her private capacity and to contest the proceedings and her such request was accepted.
She is represented by Syed Iqbal Haider.
25. In both petitions and Reference No.2 common point is of interpretation of Article
48 of the Constitution with emphasis to the effect whether advice of the Prime Minister as
contemplated under Article 48(1) is binding on President in respect of appointments in
the Superior Judiciary. Since C.P.23/1996 was filed first in point of time Mr. Habib Al-
Wahabul Khairi, Advocate as petitioner, was heard first in the order of priority. In his
petition there are several prayers, some of which have been repeated as they figured in his
previous petition which resulted in the judgment in the case of appointment of Judges and
he submitted that the prayers repeated in the present petition were not adverted to by the
Court in his previous petition. In any case, in the preset petition since the main point is
interpretation of Article 48 vis-a-vis appointments of Judges in the Superior Courts as
contemplated under Articles 177 and 193 of the Constitution, he was asked to address the
Court on the main point.
26. Mr. Khairi contended before us that our Constitution of 1973 as it stands now
contemplates the Parliamentary. Form of Government but in respect of appointments of
Judges of the superior Courts, advice of the Prime Minister is not binding on the
President for the following reasons: Firstly, that Judiciary stands separated from
Executive as provided under Article 175(3) of the Constitution means the whole judiciary
and not the part to the extent of magisterial level. Secondly, in the Constitution on the
subject of appointments of Judges in the superior judiciary special provisions exist with
particular emphasis on Articles 177 and 193 to which general provision of Article 48(1) is
not attracted, hence advice of the Prime Minister is-not binding on the. President. Thirdly,
basic structure of the Constitution guarantees complete independence of judiciary.
Fourthly, President of Pakistan has positive role in the Constitution to perform and is not
a mere ceremonial head. 'Fifthly, citizens of Pakistan have right to see record of
appointments of Judges, as right to information and secrecy in the matter of judicial
appointments leads to misunderstanding, which can be avoided by making the
appointments transparent. Mr. Khairi supplemented his arguments with a large number of
rulings which may be adverted to at later stage when the relevant points are taken up for
proper consideration.
27. Raja Muhammad Akram, Senior Advocate Supreme Court for petitioner in
C.P.54/1996, contended that Article 48(1) of the Constitution is generally applicable with
the exception of Three Categories. In First Category, there are cases in which President
can act in his discretion. Such language is used in Article 48(6). Article 58(2)(b), Article
105(4), Article 213, Article 242(1)(1-A) and Article 243(2)(c). In the Second Category,
there are Articles in which language used is such that advice under Article 48(1) becomes
automatically not operative. Such Articles are: Articles 101, 92 and 93 in which there is
self contained provision of advice. In the Third Category, there are provisions where
President is to act without advice of the Prime Minister, on the basis of Constitutional
Page No. 24 of 116

compulsion. Article 91(5) provides that Prime Minister shall hole office during the
pleasure of the President. If Prime Minister does not command confidence, can be
required to have vote of confidence. Article 75 provides for assent of President on the
Bills. Article 46 mentions duties of Prime Minister in relation to the President including
communication of information to him. Article 56(3) enables President to address either
House of the Parliament or both Houses assembled together. Under Article 243 Supreme
Command of Armed Forces is vested in the President,
28. It is submitted that in respect of appointments also there are three categories and in
the first category President acts in his discretion. In the second category he acts on the
advice of the Prime Minister. In the third category he acts "after consultation with".
Appointments of Judges in the Superior Judiciary (Articles 177 and 193) are regulated
under the third category providing "after consultation with". Hence, when there are two
provisions in the constitution from which cane is special and the other is general, then
special will prevail. Raja Muhammad Akram also contended that in the Constitution of
1973 Article 48(3) provided that orders of the President required for their validity the
countersignature of the Prime Minister. Sub-Article (3) was deleted by the Eighth
Amendment Act of 1985. After that now Article 90 is to be read differently which
provides that Executive Authority of Federation shall vest in the President and shall be
exercised by him either directly or through officer. subordinate to him in accordance with
the Constitution.
29. Mr. Shahid Hamid appearing for respondent No.2 in C.P.23/1996 and C.P.54/1996
and in Reference No.2/1996 stated that he supports fully the arguments raised on behalf
of the petitioners in both the petitions. He stated that the President regretted very much
that he had no choice but to file the Reference. He and the Prime Minister held different
views about the judiciary and the 'role of the President. In such circumstances, ibis views
were opposed and there was delay .in the implementation of the judgment of this Court.
President, as head of the State, has to keep his eyes and ears open to watch the State o1
affairs. Article 50 of the Constitution provided that there shall beta Parliament consisting
of two Houses to be known as the National Assembly and the Senate. This Article was
amended by P.0.14 of 1985 and now envisages that there shall be a Majlis-e-Shoora
(Parliament) of Pakistan consisting of President and two Houses to be known respectively
as the National Assembly and the Senate.
30. Acting under Article 56(2) President sent message to the Parliament ox, 23-9-1996
on the question of national importance on the subject of rampant corruption which gave
the country had reputation and is being ranked as number two corrupt country in the
world by international agencies. President suggested to the Parliament that it should make
law on the subject of corruption which should apply to all including himself. The then
Prime Minister objected on the ground that message could be sent by the president to the
House of Parliament on we advice of Prime Minister as Contemplated under Article 48(1)
of the Constitution. About implementation of judgment, she took the stand that Chief
Justice of Pakistan cannot ask for implementation of the judgment as the Judge can only
interpret the law and the judgment can be overturned by the Parliament. She further
stated to this context that she is the head of the Government of which Chief Justice of
Pakistan in only a part.
31. Mr. Shahid Hamid described powers of the President in seven categories as under:
(1) Articles of the Constitution under-which President can exercise powers in his
dis-creations .
` (2) Articles of the Constitution in which words "in his discretion" are not there but on
the reading of which it is evident that the duty imposed and/or the right conferred
is to be discharged by the President independently of the advice of the Cabinet by
Prime Minister or that the President has either absolute or qualified discretion in
such matters;
. (3) Articles of the Constitution in which President is bound by the advice ("shall" and
"may");
Page No. 25 of 116

(4) Articles in which. functions to be performed by the President are subject to
Article 48(1);
(5) Articles of the Constitution in which President is to exercise powers either on the
advice of Prime Minister or independently provided he is satisfied or forms the
opinion that Constitutional basis exists for exercise of that power;
(6) Articles in terms of which President is to exercise powers and discharge his
duties with specified consultees and
(7) Articles according to which a Constitutional duty is inspired as a sacred trust

which is to be discharged through participatory consultative --process; in the case of
Supreme Court with consultation of Chief Justice of Pakistan and in the case of High
Courts in consultation with Chief Justice of the High Court, Governor and Chief Justice
of Pakistan.
32. Mr. Shahid Hamid very laboriously took us through the amendments in the 1973
Constitution from the very beginning when the President was just a nominal head without
powers and for validation his signature was to be countersigned by the Prime Minister,
Later amendments were brought in the Constitution in order to make the President
effective and in that process Article 48 was also amended and in sub-Article (1) words
"shall be binding" in respect of advice of the Prime Minister to the President were
dropped. Learned counsel described in great detail the changes made by the Eighth
Amendment which were intended, inter alia, to give more powers to the President to
strike proper balance in the powers of the President and the Prime Minister.
33. Mr. Shahid Hamid further submitted that in India Judicial appointments are trust
and in Pakistan the concept is on higher pedestal because of Islamic provisions in the
.Constitution and therefore such appointments are to be treated as sacred trust in the
process of which extraneous consideration is a great sin. In the circumstances, such
appointments are to be made under Article 48(2) and not under Article 48(1). In the
judgment of appointment of Judges case time frame of 90 days is given for making
appointments and Article 190 envisages that all Executive and Judicial Authorities shall
act in aid of the Supreme Court. Political element in judicial appointments can be avoided
only when such appointments are made by President who is a political and is a better
person to ensure stopping of political influence in the appointments.
34. Mr. Abid Hasan Minto, Advocate Supreme Court, appeared for Federal
Government and raised the following contentions: Firstly, what is the basic structure of
1973 Constitution and his answer is that it is Federal in character and Parliamentary in
the form. He further stated that Constitution is not a dead letter but is an organic
instrument which must be interpreted as such. Secondly, issue is not as to what are the
powers of the President and Prime Minister but what are the Executive powers and where
do they reside. He further stated that while describing such powers in the Constitution in
the terminology different words are used, such as, 'advice', 'satisfaction' and
'consultation'. Thirdly, President is not to be placed at a pedestal higher than the Prime
Minister in the set-up envisaged in the -Constitution as oath taken by them is identical. If
political Government errs, correction is to be made by political sovereign by the method
provided in the Constitution. Fourthly, Constitutional Petitions (C.Ps.23 and 54 of 1996)
are not maintainable directly in the Supreme Court as petitioners have failed to show as
to what are their Fundamental Rights which have been infringed.
35. Hearing of the case was going on day-to-day basis when on the following day, i.e.
5-11-1996, news item was published in the newspapers that Federal Government of
Mohtrama Benazir Bhutto was dismissed and National Assembly was dissolved by
Proclamation of the President issued under Article 58(2)(b) of the Constitution and
caretaker Federal Government was to be set up. In view of this development, Mr. Abid
Hasan Minto requested for adjournment in order to find out whether the new caretaker
Federal Government would retain him as counsel or not. In the circumstances, with the
consent of all the counsel present in the Court, hearing was adjourned to a date after two
weeks.
Page No. 26 of 116

36. On the next date of hearing, Mr. Abid Hasan Minto was replaced by the new
Attorney-General, Mr. Shahzad Jehangir, who appeared for the Federal Government.
37. Mr. Shahzad Jehangir contended that President is not bound by the advice of the
Prime Minister under Article 48(1) in respect of appointments of Judges which
are made under Articles 177 and 193 of the Constitution. In support of his
contention he relied upon Eighth Amendment and submitted that executive authority
now vests in the President and not in the Prime Minister as President is the Head of
Executive and not the Prime Minister. Mr. Shabbar Raza Rizvi, Additional Advocate-
General Punjab adopted arguments of the learned Attorney-General. Mr. M.L.
Shahani, Advocate-General, Sindh, also adopted arguments of the learned Attorney-
General and additionally stated that Article 48 contemplates three situations: firstly,
Executive functions of the Government which are covered by sub-Article (1) where
advice of the Prime Minister is binding on the President; secondly, Constitutional
functions and powers of President which are covered by sub-Article (2); thirdly,
political functions which are covered by sub-Article (6) providing for referendum. He
further stated that appointments of Judges of the superior Courts are covered by sub-
Article (2) of Article 48. His supplementary contention is that in the appointments of
Judges, relevant Articles contain consultative process which exclude the concept of
advice of Prime Minister to be binding on the President. Mr. Shah Jehan Yousafzai,
Additional Advocate-General N.-W.F.P., also adopted arguments of the learned
Attorney-General.
38. As stated above, Mohtarma Benazir Bhutto after she ceased to be Prime Minister
was allowed to contest proceedings in her private capacity and was represented by Mr.
S. Iqbal Haider who submitted as follows: Caretaker Government has no mandate or
legitimacy as this Government is subject to the confirmation by this Court. Attorney-
General has no locus standi as the members of the caretaker set-up dd not represent
the will of the people. Petitions under consideration are not maintainable as no
Fundamental Rights of the petitioners are infringed. Mr. Iqbal Haider contended that
in the appointments of Judges of the superior Courts' advice of the Prime Minister is
binding on the President. If the advice is in conflict with the judgment in the
appointment of Judges case then according to that judgment reasons to be assigned by
the Executive for not accepting the recommendation of the Chief Justices are
justiciable. It was further submitted by him that there was already consensus
agreement between the Prime Minister and President (Mohtarma Benazir Bhutto and
Mr. Ghulam Ishaq Khan) which provides for harmonious relationship not only
between the President and Prime Minister but also among the three pillars of the State.
In support reliance was placed on Articles 90 and 99(1) of the Constitution and Rule
15-A(1) and Entries Nos.31, 32, 33, 34 and 35 of Schedule V-B and Rule 15-A(2),
Schedule VI of the. Rules of Business of 1973. Lastly, Syed lqbal Haider submitted
that if President is given such powers by this Court then Federal character of the
Constitution will break down.
39. Agha Muhammad Dilawar Khan, President of Pakistan Insaf Party appeared as a
citizen on his own request and was allowed to address the Court. He supported the case
of the petitioners and submitted that before -Eighth Amendment executive authority of
Federation under Article 90 of the Constitution was to be exercised by the Federal
Government through the Prime Minister who was treated as Chief Executive of the
Federation. After the Eighth Amendment Article 90 was modified and it now provides
that Executive Authority of the Federation shall vest in the President and shall be
exercised by him either directly or through officers subordinate to him in accordance with
the Constitution. He also pointed out Article 91 of the Constitution which envisages that
there shall be a Cabinet of Ministers with Prime Minister as its head to aid and advise the
President in the exercise of his functions. He drew the attention of the Court to Article 46
under which it is the duty of the Prime Minister to communicate to President all decisions
of the Cabinet and proposals for legislation and furnish such information to him relating
to the administration of affairs of the Federation and proposals for legislation as the
President nay call for clause (c) of Article 46 envisages that if President so requires he
can submit any matter on which decision has been taken by Prime Minister or a Minister
for consideration of Cabinet, which has not been considered by the cabinet. It wag
pointed out by him that under Article 58(1) advice of the Prime Minister to the President
Page No. 27 of 116

to dissolve the National Assembly is not binding because it automatically stands
dissolved at expiration of 48 hours. It was submitted by him that President can file
Reference and agreement of Mohtarma Benazir Bhutto with Mr. Ghulam Ishaq Khan is
not valid and is violation of oath under the Constitution for which she can be disqualified.
40. Mr. Shahid Orakzai, journalist, requested the Court for hearing and he was allowed
to address. It was stated by him that Reference No. 2 is not maintainable and there is no
provision in the Supreme Court Rules for hearing of Reference. According to him
President could not file Reference in, the Supreme Court without advice of the Prime
Minister as in Article 186 there is no mention that he could do so in his discretion as is
specifically mentioned in Article 48 (6) which provides for holding of referendum, which
can be done by the President in his discretion or on the advice of the Prime Minister.
41. Mr. M. Akram Sheikh, President of the Supreme Court Bar Association, addressed
the Court and submitted that judgment in the case of appointment of Judges announced
by short order on 20-3-1996 was not implemented by the Federal Government for the
following reasons: Firstly, tenure of two Additional Judges, namely, Mr Justice Rana
Baghwan Das of Sindh High Court and Mr Justice Javaid Nawaz Gandapur of Peshawar
High Court was extended for six months against the recommendation of the Chief
Justices of the High Courts and Chief Justice of Pakistan, who were in favour of their
confirmation/permanent appointment and. had opposed extension. Secondly, from the
Additional Judges of the High Court not confirmed in 1994, some were recommended for
appointment by the Chief Justices but they were not so appointed by the Federal
Government. Thirdly, during the process of implementation of the judgment asking for
resignation of Additional Judges was strategy of resistance and defiance as resignations
showed that appointments were made validly. In the process of regularisation and
permanent appointments of Additional Judges seniority was not given. Learned counsel
further submitted that appointment of Judges have nothing to do with basic structure of
the Constitution or system contemplated thereunder. Parliamentary system had become
dictatorship and proper system ensures checks and balances. Appointments in judiciary is
a State function. Political affiliation should be deleted from the judgment in the
appointment of Judges case. Advocates have right to fight political appointment. In the
scheme of appointments of Judges in Superior Judiciary as enshrined in the Constitution
power does not belong to Prime Minister. .
42. Mr. Hamid Khan, Vice-Chairman of Pakistan Bar Council while addressing the Court
supported the proposition that advice of the Prime Minister under Article 48(1) of the
Constitution in respect of appointments of Judges in the Superior Judiciary is binding on
the President. He traced the history of 1973 Constitution and amendments made there in
from time to time including Eighth Amendment and submitted that changes were
brought in the Constitution to strike balance between the powers of the President and the
Prime Minister. He pointed out in detail provisions of Revival of Constitution Order (PO
14 of 1985) and Eighth Amendment Act (Act No.XVIII) of 1985 in order to show that in
spite of such amendments character, of the Constitution giving Parliamentary Form of
Government was not changed.
43. In order to appreciate question of interpretation of relevant Articles involved in

these cases, it would be very essential to trace legislative history of our Constitution
going back to period before the partition of the sub-continent. Before emergence of
Pakistan, united India was governed by Government of India Act of 1935. Part IX of this
Act relates to judicature and section 200 thereof envisages establishment and Constitution
of the Federal Court and section 220 provides for Constitution of High Courts. Judges of
the Federal Court and High Courts under that Act were to be appointed by the Governor -
General and there is no mention of consultation in the relevant provisions of appointment.
Professor C.L. Anand has written a book with title 'Constitutional Law and History of
Government of India of which 6th Edition in 1990 is published by Chief Justice H.N.
Seth. This book contains a critical survey and in-depth commentary for understanding the
legal background of the Constitution. It is stated in this book, in the commentary of
section 220 of the Government of India Act, that appointments of all High Court Judges
were crown appointments and they were neither Federal nor Provincial. Such
appointments were in the unfettered discretion of the Crown. Ministers had nothing to do
with the appointments. The chance of political influence being brought to bear in
Page No. 28 of 116

connection with the selection of Judges was thus completely excluded. At that time sub-
continent of India was being ruled by the British as a colony. Hence all appointments of
Judges were being made by the Crown through the Governor General.
44. Mr Sharifuddin Pirzada while tracing the history of Judiciary before Partition of
India stated that until the Partition appointments Vf Judges' in the superior Courts were
made on the recommendations of the chief Justices of India and the High Courts and such
recommendations were accepted by the Governor and Governor-General of His Majesty.
This practice was consistently followed with the exception of one or two instances. In
one case, Justice Shad: Lal was the Chief Justice and made recommendations but the
Governor noticed that names of Muslim Lawyers were not included. This happened in
1929 and discreetly such hint was made to Justice Shadi Lal, who sent names of two
Muslim Lawyers who were Sir Muhammad Iqbal and Sir Abdul Qadir. Chief Justice
opined about Sir Muhammad Iqbal that he is more a poet than a lawyer and about Sir
Abdul Qadir that he is more a literate figure than a lawyer. Governor also sent his own
observations and in the result Sir Abdul Qadir was appointed as Additional Judge. In such
circumstances during those days Muslim Lawyers felt discriminated.
45. Another interesting incident is that Khawaja Nazir Ahmad was appointed as
receiver in the litigation of S.M. Saleh and his relatives in connection with the partition of
the property. Saleh became dissatisfied with the activities of the receiver and applied to
have him removed. At the same time, F.I.R. was filed and the matter was being
investigated as well. K.L. Gauba, a Barrister, represented Saleh in certain proceedings
and sent a written complaint to the District Magistrate charging Khawja Nazir Ahmad,
receiver, with a number of crimes. Finally High Court was approached for quashment of
proceedings and stopping of investigation. Resultantly, High Court stopped the
investigation. Appeal was taken to the Privy Council, where it was allowed and
investigation was permitted to proceed. When complaint was made against Khawaja
Nazir Ahmad, his name was duly recommended by the Chief Justice for elevation to the
High Court and was in the drawer of Governor of Punjab. Chief Justice Sir Douglas
Young was compelled to withdraw the recommendation and in consequence Mr
Muhammad Munir, the then President of Income-tax Tribunal was appointed to the High
Court Bench in the vacancy earmarked for Kh. Nazir Ahmad. Apart from the incidents
mentioned above there was smooth sailing in the matters of appointments in the High
Court and normally the recommendations of the Chief Justices were accepted.
46. After partition, in India attempt was made by Sardar Vallabhbhai Patel, Home
Minister in the Centre to control the Judiciary. In the book with title "President and the
Indian Constitution" by Valmiki Chaudhry, it is stated that after the Independence Act but
before the issue of Memo. by the Home Minister dated 4th November, 1947, the same
procedure was followed with the elimination of the recommendation to the Secretary of
the State. Memo. of the Home Ministry dated 4th November, 1947 laid down the
procedure under which the Chief Minister of the State acting in consultation with the
Home Minister as also the Home Minister in the Centre had to be consulted in the
selection of a Judge of a High Court. When this procedure was communicated to the
Provincial Governments and the High Courts, Chief Justice of Madras, Sir Frederick
Gentle, put forward this as one of the reasons for his resigning from his post. He was
supported in his protest by. Sir Archibal Nye, the then Governor of Madras. Both the
Chief Justice and the Governor were of the view that the procedure of appointment would
lead to political jobbery and affect the independence of the judiciary. Lord Mountbatten
took up this matter with the then Home Minister, Sardar Valabhbhai Patel but the Chief
Justice of India had agreed to the new procedure. Later, the Conference of the Chief
Justices representing all Provincial High Courts of the Union of India was held on 26-3-
1948 in which the procedure of appointment was disapproved and it was held that power
would pass into the hands of political parties who will control and dominate the
Governmental machinery and, therefore, extreme caution had to be exercised in evolving
correct procedure for appointment of High Court Judges.
47. In India in the famous Sapru Report there are Constitutional proposals of which
paragraph 259 relates to the appointments in the Supreme Court and the High Court. In
sub-clause (3) thereof recommendations are as under:
Page No. 29 of 116

"(a) The Chief Justice of India shall be appointed by the Head of the State and the other,
Judges of the Supreme Court shall be appointed by the Head of the State in
consultation with the Chief Justice of India.
(b) The Chief Justice of a High Court shall be appointed by the Head of the State in
consultation with the Head of the Unit and the Chief Justice of India.
(c) Other Judges of a High Court shall be appointed by the Head of the State in
consultation with the Head of the Unit, the Chief Justice of the High Court
concerned and the Chief Justice of India.
48. In Paragraph 261 of the Report it is stated that in the course of appointments High
Court and Government concerned would be more or less interested parties in the matter,
hence intervention of the Supreme Court and the head of the State would rule cut all
possibility of the exercise of political part, influences. The imposition of such conditions
may at a superficial view seem w be inconsistent with the theoretical autonomy of the
Provinces. Independence of the High Court and of Judiciary is of supreme importance for
satisfactory working of the Constitution and nothing can be more detrimental to the well
being of a Province 'or calculated to undermine public confidence than the possibility of
Executive interference with the strength and independence of the highest Tribunal of the
Province.
49. In paragraph 288 of the Report, it is stated that the Union will be a Democratic
Federal State and the Head of that State, who will replace both the Governor-General and
the Crown Representative and might be given a suitable indigenous designation, if
necessary, should exercise such functions as are given to him only on the advice of his
Federal Ministry; barring a very few exceptional cases, to be specifically mentioned in
the Constitutional Act, where discretion is given to him to act on his own or on the advice
other than of the Federal Ministry (1) for avoiding political or communal graft, or, (2) for
taking the initiative in the national interest, specially in exceptional and fast moving
situations, such as, exists at the present day. Under Exception (1) will fall suggestions
relating to the strength of High Courts and appointment and removal of Judges of the
Supreme Court and the High Courts.
50. Perusal of Sapru Report, as stated above, shows that endeavours were made
suggesting making Judiciary Independent and particularly appointments of Judges free
from political influence and for that reason Head of the State was involved in the process
of appointments, who could be given discretion to act on his own or on the advice usher
than that of the Federal Ministry These suggestions in the Sapru Report were not
accepted in totality hence wren the constitution was promulgated in India Article 124
provided for establishment and Constitution of the Supreme Court envisaging that every
Judge of the Supreme Court shall be appointed by the President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the.
High Courts in the estates as the President may deem necessary for the purpose and shall
hold office until he attains age of 65 years: provided that in the case of appointment of a
Judge other than the Chief Justice, the Chief Justice of India shall always be consulted.
Similar provisions were made in Article 217 of the Indian Constitution catering for
appointment of Judges in the High Courts with terms and conditions mentioned therein.
51. The Constitution of India envisages Sovereign Socialist Secular Democratic

Republic. Article 53 provides that executive power of the Union shall be vested in the
President and shall be exercised by him either directly or through officers subordinate to
him in accordance with the Constitution. Article 74 provides that there shall be a Council
of Ministers with the Prime Minister at the Head to aid and advise the President, who
shall, in exercise of his functions act in accordance with such advice. These provisions
clearly show that in the Indian Constitution President in the performance of his Executive
powers has to act on the advice of the Prime Minister and this is applicable in the
appointments of Judiciary as well.
52. While, on the other hand, in Pakistan we were able to make and promulgate
Constitution for the first time in 1956. Before that we relied upon the provisions of
Government of India- Act, 1935, which was adapted by Pakistan (Provisional
Page No. 30 of 116

Constitution) Order, 1947. Federal Court of Pakistan war setup under Federal Court of
Pakistan Order, 1948. The jurisdiction of Privy Council in respect of appeals and
petitions from Pakistan was abolished by tire Privy Council (Abolition of Jurisdiction)
Act, 1950. Pakistan succeeded iii framing the Constitution in 1956 called as the
Constitution of Islamic Republic of Pakistan, 1956. Mr. Sharifuddin Pirzada stated that
when this exercise of making Constitution of 1956 was taken in hand, at that time and at
the time of promulgation of the Constitution, Mr I.I. Chundrigar was the Law Minister.
Ground work was done and reports on the Constitution making were considered.
Mr.Sharifuddin Pirzada has stated before us that copy of Sapru Report was borrowed
from him. It is understandable that detailed study might have been made on the subject
because preparation and promulgation of Constitution is an extremely important task and
the Constitution provides a proper system of governance.
53. In 1956 Constitution, Part IX relates to judiciary containing Articles 148 to 178,
providing for setting up Supreme Court at its apex and High Courts in the Provinces. This
Constitution provides that Chief Justice of Pakistan shall be appointed by the President
and the other Judges shall be appointed by the President after. consultation with Chief
Justice. Consultative process is provided for appointment of the Judges of the High
Courts. Even at that time there was anxiety in the minds of the Constitution-makers to
provide for the Independence of Judiciary. In this context, Late Mx. I.I. Chundrigar, who
was then Law Minister, stated on the Floor of the Assembly (please refer Constituent
Assembly of Pakistan Debates, 1956, Volume I, Part II, page 1803), relevant portion of
which is reproduced as under:
" ... ... ...Then the Supreme Court Judges and the High Court Judges are not removable
once they are appointed, except by following the procedure prescribed therein. This
would in my humble opinion, completely safeguard the independence of the Judiciary
and that is a matter which will really secure the rights of the people. Sir, the
independence of the Judiciary is a principle very dear to the people of this country,, who
believe that they receive justice from the Courts of this country and that their rights are
safe in the hands of the Judges. The impartiality of Judges is one aspect of the nature of
the Judge, of which another is independence. A Judge who is not independent cannot be
impartial. The provisions in the Bill are intended to ensure the independence of the
Judges and to preserve it in future as it is preserved at present. We have at the outset
made provisions in the Constitution which make the interpretation of the Constitution by
the Supreme Court final. We cannot give greater assurances to say that justice is given in
Pakistan in a real and unpolluted form ... ... ... "
54. Comparison can be made between provisions relating to the Judiciary in 1956
Constitution (Articles 148 to 178) and Indian Constitution (Articles 124 to 217) and it
would appear that language is more or less same with slight variation but the 'substance is
same. It can be said without fear of contradiction that the view point in both Indian
Constitution and 1956 Constitution of Pakistan with regard to the powers of Judiciary
and procedure for appointment of Judges therein is sate including conscious endeavour
for maintenance of independent of Judiciary. In both the Constitutions, the form of
Government provided it Parliamentary. Article 37 in 1956 Constitution provided that
there shall be s Cabinet of Ministers with the Prime Minister at its head, to aid and advise
the President in the exercise of his functions. In the circumstances, is can be said that like
in India, in our Constitution of 1956 because of Parliamentary Form of Government
advice of the Cabinet of Ministers with Prime Minister at its head was a must to aid and
advise the President in exercise of his functions including appointments in superior
Judiciary.
55. In Pakistan 1956 Constitution was in force for a short time of two years and in
1958 martial law was promulgated and Constitution was abrogated. Till that time in the
normal course, process of appointments of Judges went smoothly without interference
from Prime Minister on political grounds except in one case where Mr. Suharwardi, as
Prime Minister, bypassed the Chief Justice of Pakistan but when it was pointed out to.
him, he made amends and rectified the situation. After promulgation of Martial Law and
abrogation of the Constitution of 1956 late Field Marshall Ayub Khan minced no words
and stated very frankly that Parliamentary Form of Government did not suit genius of the
people of Pakistan and himself in 1962 gave Constitution to the people contemplating
Page No. 31 of 116

Presidential Form of the Government. This Constitution remained in force and on 25-s-
1969 Proclamation was issued abrogating the constitution and declaring Martial Law. In
the aftermath we lost East Pakistan, which declared independence and proclaimed itself
as separate independent country called Bangladesh. in the remaining pan, West Pakistan,
Interim Constitution of 1972 was promulgated on 21-4-1972 declaring the State of
Pakistan as a Republic to be known as Islamic Republic of Pakistan. The form of
Government was Presidential. Interim Constitution was operative till Permanent
Constitution was promulgated on 12-4-1973 providing Parliamentary Form of
Government.
56. In the original 1973 Constitution, Part VII relates to Judicature from Articles 175
to 203. So far as appointments of Judges are concerned the relevant Articles are 177
relating to the Supreme Court Judges and 193 relating to the High Court Judges. In the
draft Constitution idea was mooted whether for appointment of Judge the Chief Justice
.should recommend panel of three names and removal of Judges should be made through
the Parliament. There was opposition during the debate and finally both ideas were
dropped and Article 209 was inserted in the Constitution empowering Supreme Judicial
Council to initiate proceedings in respect of removal of Judges. In the process of
appointment of Judges with the exception of Chief Justice of Pakistan who is to be
appointed by President without consultation, for appointment of other Judges of the
Supreme Court and the High Court consultative process is provided in the Constitution.
Article 48 in the original Constitution envisages that in the performance of his functions,
the President shall act on and in accordance with the advice of the Prime Minister and
such advice shall be binding on him. Since the Constitution provided for Parliamentary
Form of Government Article 48 also applied to the appointments of Judges in the superior
Judiciary.
57. On 5-7-1977 Martial Law was promulgated in the country and the Constitution
was held in abeyance. By Presidential Order XIV of 1985 Constitution was revived.
General elections were held on non-party basis. On 11-11-1985 Constitution (Eighth)
Amendment Act of 1985 was passed where under several provisions of the Constitution
were amended. It is stated that there was bargain and Eighth Amendment was allowed to
be passed in return of lifting of Martial Law. Unfettered powers of the Prime Minister as
contained in the original Constitution were circumscribed to make the role of the
President more effective to strike balance between the powers of the two.
58. Amendment was made in Article 48 and the words "such advice shall be binding on
President" were deleted. Proviso was added that President may require the Cabinet or the
Prime Minister to reconsider such advice and shall act in accordance .with advice
tendered after such reconsideration. Sub-Article (2) was amended and President has been
given power to act in his discretion in respect of any matters in which he is empowered
to do so in the Constitution. For the first time President was empowered to dissolve the
National Assembly in his discretion and appoint a date not later than 90 days from the
date of dissolution for holding of General Election to the Assembly and could appoint a
caretaker Cabinet. Article 58 in the 1973 Constitution in original form enabled the
President to dissolve the National Assembly only after Prime Minister has so advised.
After amendment Article 58(2) in clause (a) empowered President to dissolve the
National Assembly in his discretion after vote of no-confidence has been passed against
the Prime Minister and under (b) President can dissolve the National Assembly in his
discretion if a situation has arisen in which the Government of Federation cannot be
carried on in accordance with the provisions of the Constitution and an appeal to the
electorate is necessary. In view of such amendments, it is being felt that President
indirectly elected has become more powerful than Prime Minister who is directly elected
and is considered as Head of the Executive in the Parliamentary Form of Government.
59. Now we come to brass-tacks. From the arguments and contentions raised arid
advanced before us by learned counsel appearing for the parties and amicus curiae, the
following pertinent points emerge categorically for consideration and adjudication:
(1) What is the basic structure or complexion of the Constitution of 1973 from the point
of view whether it envisages after Eighth Amendment Parliamentary Form of
Government or Presidential?
Page No. 32 of 116

(2) Who is the Head of Executive after Eighth Amendment?
(3)' Whether appointment of Judges in the superior Courts as envisaged in the

Constitution is Executive power/action?
(4) Is there conflict between general provision (Article 48) and special
provisions (Article 177) and (Article 193) of the Constitution?
(5) Is President bound by the advice of Prime Minister in respect of appointments

of Judges?
(6) What will happen, if judgment of the Supreme. Court in the case of appointment of
Judges is not implemented?
60. Now so far the first point is concerned the question is as to what is the basic
structure of the Constitution of 1973 and what form of Government is contemplated
therein. On this point there appears consensus among the learned Advocates appearing
before us that seemingly Constitution of 1973 contemplates Parliamentary Form of
Government. This is so stated even by Mr. Habib AlWahabul Khairi, who has appeared
before us as petitioner and he has stated categorically that Constitution of 1973 envisages
Parliamentary- Form of Government but has Islamic provisions as well. He further
contended that in respect of appointments in the Superior Judiciary President is not bound
by the advice of the Prime Minister as contemplated under Article 48(1) of the
Constitution for which he has given his own reasons- Mr Abid Hasan Minto Advocate
Supreme Court, appearing for the Federal Government at the initial stage submitted that
basic structure of 1973 Constitution is Federal in character and Parliamentary in the
Form. Constitution is not a dead letter but is an organic instrument, which must be
interpreted as such.
61. In order to understand fully as to what is the basic structure of the Constitution of
1973, it would be pertinent to read not only the Constitution but other relevant
documents, such as, Preamble, Constitution Bill, Report of the Constitution Committee,
Debates and Amendments, if any, only then clear picture will emerge as to what is the
basic structure of the Constitution. Preamble to the Constitution of 1973 reads as under:
"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;
And whereas it is the will of the people of Pakistan to establish an order:
Wherein the State shall exercise its powers and authority through the chosen
representatives of the people;
Wherein the principles of 'democracy, freedom, equality, tolerance and social justice, as
enunciated by Islam, shall be fully observed;
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
Qur'an and Sunnah;
Wherein adequate provision shall be made for the minorities freely to profess and
practise their religions' and develop cultures;
Wherein the territories now included in or in accession with Pakistan and such other
territories as may hereafter be included in or accede to Pakistan shall form 4 Federation
wherein the units will be autonomous with such boundaries and limitations on their
powers and authority as may be prescribed;
Wherein shall be guaranteed fundamental rights, including equality of status, of

opportunity and before law, social economic and political justice, and freedom of
Page No. 33 of 116

thought, expression, belief, faith, worship and association, subject to law and public
morality; .
Wherein adequate provision shall be made to safeguard the legitimate interests of

minorities and backward and depressed classes;
Wherein the independence of the judiciary shall be fully secured;
Wherein the integrity of the territories of the Federation,' its independence and all its
rights, including its sovereign rights on land, sea and air, shall be safeguarded; so that the
people of Pakistan may prosper and attain their rightful and honoured place amongst the
nations of the world and make their full contribution towards international peace and
progress and happiness of humanity;"
Article 1 of the Constitution contemplates that Pakistan shall be Federal Republic

known to be Islamic Republic of Pakistan, hereinafter referred to as Pakistan. Article 2
provides that Islam shall be the State religion of Pakistan. Part III of the Constitution
refers to Federation of Pakistan and Article 41 contemplates that there shall be a President
of Pakistan who shall be Head of the State and shall represent the unity of Republic.
Article 48, as it originally stood in 1973 Constitution, provided that in performance of his
functions, the President shall act on and in accordance with the advice of the Prime
Minister and such advice shall be binding on him. Chapter II of the Constitution relates to
Parliament composed of National Assembly and the Senate. In the Constitution itself is
provided specifically that President is elected indirectly by electoral college while the
Prime Minister, is elected directly by way of adult franchise and is leader of majority
party in the Parliament.
62. Before 1973 Constitution, we had 1962 Constitution given to us by Field Marshall
Muhammad Ayub Khan, which contemplated Presidential Form of Government. Interim
Constitution of 1972 also envisaged Presidential Form of Government. . Before the
promulgation of Constitution of 1973, all political parties represented in the National
Assembly, took part in the deliberations and finally the Constitution was promulgated
with consensus deciding upon Parliamentary Form of Government in which the question
of autonomy of Provinces was also resolved. Therefore, there is no dispute about the fact
that the Constitution of 1973, in its original shape, provided for Parliamentary Form of
Government where Executive Authority vested in the Prime Minister and the President
was just a nominal head of the State representing the unity of the Republic. Not only that
but Article 48(3) required that orders of the President 'for validity were to be
countersigned by the Prime Minister.
63. Now, the question arises as to what has been achieved by the insertion of
Constitution (Eighth Amendment) Act, 1985, and whether it has changed the shape and
basic structure of the Constitution from Parliamentary Form to Presidential. The answer
to that is, no it has not. No doubt, Eighth Amendment Act, 1985, has amended a large
number of Articles in the Constitution to strike balance between the powers of the
President and the Prime Minister in order to give more effective role to the President. In
consequence, Articles 48, 51, 56, 58, 59, 60, 75, 90, 91, 101, 105, 106, 112, 116, 130,
144, 152 and 270 were amended. Of course, this was done for the reason that Martial
Law was imposed in the country in 1977 and Constitution was held in abeyance and in
1985 Constitution was revived, elections were held on non-party basis and then
Constitution (Eighth Amendment) Act, 1985, was passed validating Proclamation of 5-7-
1977 and all President's Orders and Ordinances, Martial Law Regulations, Martial Law
Orders including Referendum Order of 1984. It can be said that Constitution (Eighth
Amendment) Act, 1985, was passed and in return Marital Law was lifted.
64. Now, if all the amendments made in the Eighth Amendment are studied minutely it
would appear, candidly speaking that more powers have been given to the President to
provide him an effective role but Parliamentary Form of Government is retained. Article
41 in the Constitution before Eighth Amendment provided in sub-Article (1) that there
shall be a President of Pakistan who shall be the Head of State and shall represent the
unity of the Republic and this provision remains in the same position after the Eighth
Amendment. Article 41 originally contained six sub-Articles and RCO/P.0.14 of 1985 has
Page No. 34 of 116

made two amendments. Sub-Article (3) was amended to provide that the President shall
be elected by the Members of the Provincial Assemblies in addition to Members of both
Houses and sub-Article (7) was added. In Article 48 before Eighth Amendment, Sub-
Article (1) envisaged that in performance of his functions, the President shall act on and
in accordance with the advice of the Prime Minister and such advice shall be binding on
him. -, This sub-Article is amended with deletion of words "and such advice shall be
binding on him" and proviso has been added that the President may require the Cabinet or
the Prime Minister to re-consider such advice and the President shall act in accordance
with advice tendered after such re-consideration. Sub-Article (3) requiring orders of
President to be countersigned by the Prime Minister for validity is deleted. These
amendments inserted by Eighth Amendment Act, 1985, do not show that Form of the
Government in the Constitution of 1973 has been changed from Parliamentary to
Presidential.
65. Second point mentioned above is as to who is Head of the Executive I after the Eighth
Amendment. Chapter III in the Constitution of 1973 defines the Federal Government.
Before Eighth Amendment, Article 90(1) reads that subject to the Constitution, the
Executive Authority of the Federation shall be exercise in the name of the President by
the Federal Government consisting of the Prime Minister and the Federal Ministers,
which shall act through the Prime Minister, who shall be the Chief Executive of the
Federation. After Eighth Amendment. Article 90(1) reads that the Executive Authority of
the Federation shall vest in the President and shall be exercised by him either directly or
through officers subordinate to him in accordance with the Constitution. Now, the
question arises for consideration whether modification in the language as provided in the
amended Sub-Article (1) of Article 90 after Eighth Amendment has given Executive
Authority of Federation to the President instead of Prime Minister or no difference is
made as the Executive Authority of the Federation is still to be exercised by the President
in accordance with the Constitution which includes Article 48(1) providing that in the
performance of his functions, the President shall act in accordance with the advice of the
Cabinet or the Prime Minister. Language used in Article 90(1) after Eighth Amendment is
borrowed and bodily lifted from. Article 53 of the Constitution of India, and in India
there is Parliamentary Form of Government and Article 53 is read with Article 74 in their
Constitution and the latter Article provides that there shall be a Council of Ministers with
Prime Minister at the Head to aid and advise the resident, who shall in the exercise of his
functions, act in accordance with such advice so the answer is that under Article 90(1)
executive authority is to be exercised by the President in conjunction with Article 48(1)
of the Constitution, which requires that President shall act in accordance with the advice
of the Cabinet or the Prime Minister.
66. The third point is whether appointment of Judges is Executive power/action. This
Court has already rendered authoritative judgment in the case of appointment of Judges
in the superior Courts (PLD 1996 SC 324) in which all the Articles relating to judicature
in the Constitution of 1973 have been interpreted to determine the scope of the word
"consultation" in respect of appointments and such other allied matters. It is held as
under:
(i) ' The words "after consultation" employed inter alia in Articles 177 and 193 of the
Constitution connote that the consultation should be effective, meaningful,
purposive, consensus-oriented, leaving no room for complaint or arbitrariness or
unfairplay. The opinion of the Chief Justice of Pakistan and Chief Justice of a High
Court as to the fitness and suitability of a candidate for Judgeship is entitled to be
accepted in the absence of very sound reasons to be recorded. by the
President/Executive.
(ii) If President/Executive appoints a candidate found to be unfit and unsuitable for

Judgeship by the Chief Justice of Pakistan and Chief Justice of the High Court
concerned, it will not be a proper exercise of power under relevant Article of the
Constitution. ,
(iii) That the permanent vacancies occurring in the office of the Chief Justice and Judges
normally should be filled in immediately by not later than 30 days but a vacancy
Page No. 35 of 116

occurring before the due date on account of death or for any other reason, should be
filled in within 90 days on permanent basis.
There is no doubt about the fact that appointment of a Judge as contemplated in

the Constitution is an Executive action for the reason that final order is passed in the
name of the President and in consequence Notification is to be issued as covered by
Entries Nos.31(b) and 32 of Schedule V-B, Rule 15-A(1) of Rules of Business, 1973.
67. - The fourth point for consideration is whether there is conflict between Article 48
which is a general provision and Articles 177 and 193 which are special provisions in the
Constitution providing scheme and procedure for appointment of Judges in the Superior
Courts. The proposition with regard to the interpretation is that if there is conflict
between general and special provisions, then special provision shall prevail.. In the case
of M.D, Tahir v. federal Government and others (1989 CLC 1369,, Division Bench of
Lahore High Court held that Prime Minister does not find mention in Article 193,
amongst the persons after consultation with whom the President is required to appoint
Judges and since this is special provision then it shall prevail over general provision
contained in Article 48(I) of the Constitution which requires that President shall act in
accordance with the advice of the Cabinet or the Prime Minister in the matter of
appointments of Judges in the superior Courts as envisaged in Article 193 is unnecessary
and not attracted. High Court dismissed writ petition of M:D. Tahir vide order dated 21-
12-1988 which was authored by Mr. Justice Muhammad Afzal Lone (as he was then). In
support of the provision reliance, was placed on the judgment in the case: Government of
Punjab, Health Department v. Naila Begum (PLD 1987 Lahore 336) by Division Bench
in Intra-Court Appeal which was allowed holding inter alia that if there is conflict
between general and special provisions in the statute then special provision shall prevail
over the general provision. Incidentally, the same learned Judge, Mr. Justice Muhammad
Afzal Lone, was author of that judgment. After the dismissal in limine of writ petition of
M.D Tahir in the High Court, Federal Government filed petition for leave to appeal in the
Supreme Court on the ground that writ petition in the High Court was dismissed in limine
which involved question of interpretation of Articles of the Constitution in which the
Attorney-General of Pakistan was not heard as is contemplated under Order XXVII-A,
.Rule 1, C.P.C. Leave was granted and finally it came up for. hearing before 11 learned
Judges of this Court, who disposed of the appeal on the basis of compromise between the
parties reached outside the Court. In the result paragraph 5 of the impugned order dated
21-12-1996 of Lahore High Court was excised 111 which it was mentioned that Article
48(1) being general provision will not apply to special provision of Article 193 and
advice of the Prime Minister to the President is not attracted while considering the
appointments of Judges of the High Court. Two learned Judges on the Bench, namely,
Mr. Justice Abdul Kadir Shaikh and Mr. Justice Zaffar Hussain Mirza (as they were then)
while agreeing with the conclusion recorded their separate notes in which it was observed
by them that interpretation of provisions of the Constitution should be done on merits and
the controversy should have been resolved instead of deciding the appeal on the basis of
consent of parties.
68. Mr Justice Muhammad Afzal Lone who wrote two judgments as Judge of Lahore
High Court mentioned in the preceding paragraph was elevated to the Supreme Court
and was Member of the Bench which heard the case of Muhammad Nawaz Sharif v.
Federation of Pakistan (PLD 1993 SC 473). The same point with regard to the
interpretation of Article 193 in conjunction with Article 48 (1) of the Constitution carne
up for consideration and the learned Judge considered the point in the light of his earlier
decisions in the High Court and observed: Relevant paragraph 25 from pages 754 and
755 of the report is reproduced as under:
"25. With reference to other category of powers of the president Mr. S.M. Zafar dilated
upon provisions under which the President acts in consultation with other Constitutional
functionaries. Such provisions listed by him are Articles 72(1), 101, 177, 181, 193(1) and
218(1)(b). Article 72(1) relates to the making of the rules by the President its consultation
with the Speaker of the National Assembly concerning the joint sitting, and
communication between two Houses of the Parliament. The other Articles relate to
appointments of Judges of the superior Court except Article 218(1)(b) which covers the
appointment of the members of the Election Commission. In the submission of Mr.Yahya
Page No. 36 of 116

Bakhtiar 'consultation' does not exclude applicability of Article 48(1) under which the
President has to act on the advice of the Cabinet or the Prime Minister, as the case may
be. While in the High Court in M.D. Tahir v. Federal Government 1988 CLC 1369 in
hearing a 'writ petition dismissed in limine, I had the occasion to construe Article 193(1)
and did not consider the Prime Minister's advice as sine qua non for the validity of
appointment of Judges of the High Court. After hearing Mr. Yahya Bakhtiar, I feel that
what he asserts can be another way of looking at Article 193(1) and this matter requires
serious research. "
69. In fact, there is no cavil with the proposition that if there are two provisions in the
same statute and one is general and the other is special, then while interpreting the
provisions the presumption would be that the general provision was not intended to
interfering with the operation of the special provision. In the case of Golden Oraphies
(Pvt.) Ltd. v. Director of Vigilance, Central Excise, Customs and Sales Tax 1993 SCMR
1635, the proposition mentioned above came up for consideration but it was in respect of
entries in the First Schedule to the Customs Act and the controversy arose whether claim
of appellants was correct that diaries manufactured by them did not fall under Heading
48.18, Pakistan Customs Tariff but were covered by the description "printed books" listed
under Heading 49.01 and thus exempt from levy of sales tax. It was held by this Court
that it is not possible to treat. such diaries as outside the purview of Heading 48.18 and
categorised them as "printed books" classified under Heading 49. In support of the
proposition that in case of conflict between general provision and special provisions in
the statute special shall prevail. Raja Muhammad Akram, counsel for petitioner in C.P.
No.54/1996 has cited three cases which are distinguishable. In the case of Inspector-
General of Police, Punjab and others v. Mushtaq Ahmad Warraich and others PLD 1985
SC 159, while laying down criterion for determining seniority of subordinate ranks of
police force, it was held that Police Act, 1861 and Rules framed thereunder being special
law shall prevail over Punjab Civil Servants Act, 1974
and Punjab Civil-Servants Appointment and Conditions of Service Rules, 1974, being
general law. Same view is taken in the case of Neimat Ali Goraya v. Jaffar Abbas,
Inspector/Sargent Traffic 1996 SCMR 826. In the case of Mst. Imam Bibi v. Allah Ditta
and others PLD 1989 SC 384, it was held by this Court that section 19-A was added by
Colonization of Government Lands Punjab (Amendment) Act--III of 1951, and the
controversy arose whether newly-added section 19-A was expressly extended to
Bahawalpur on the wordings of adaptation law of 1926, by which the Act with certain
modifications was applied to Bahawalpur or otherwise which could not have the effect of
incorporating the subsequent amendments as well. It was in that context, that effect of
general law on special statute was considered and it was held that notification adding
section 19-A neither creates nor curtails any right.
70. Mr. Sharifuddin Pirzada while arguing the general propositions with regard to the
conflict between the general and special provisions pointed out to us Special Reference
No.1 / 1957 reported in PLD 1957 SC 219 under the Advisory Jurisdiction seeking
opinion to resolve conflict between Articles 83 and 225 of 1956 Constitution. Article 83
empowered Governor to summon, prorogue or dissolve the Provincial Assembly which
was a general provision and Article 225, special provision, provided that until a
Provincial Assembly for the Province of East Pakistan was constituted, Provincial
Legislative Assembly for the Province of East Bengal functioning immediately before the
Constitution day shall exercise powers conferred, and perform the duties imposed upon,
the Provincial Assembly of East Pakistan It was argued that an Interim Assembly having
been directed to function until a Provincial Assembly under the Constitution is
constituted, whether the Governor could dissolve the latter Assembly under Article 83. It
was held by this Court that on the construction of Articles 83 and 225 there can be no
conflict between the two because whereas the Governor has the General power to
dissolve a Provincial Assembly, the exercise of that power is negated by special provision
which has operation for only a limited time. Article 83 in respect of the Governor's power
to dissolve is thus subject to Article 225 and there is no repugnancy between them. In the
case of State v. Zia-ur-Rehman PLD 1973 SC 49 the point for consideration was that
where in a statute there are both general provision as well as special provision for
meeting a particular situation, then it is the special provision which must be applied to
that particular case or situation instead of the general provision. In the Interim
Page No. 37 of 116

Constitution of 1972, Article 281(1) declared valid all Proclamations, President's Orders,
Martial Law Regulations, Martial Law Orders and all other Laws made as from 25-3-
1969 and their, validity was made beyond question in any Court. Article 281(1) provided
that all orders made, proceedings taken and acts done by any authority, or by any person,
which were made, taken or done, or purported to have been made, taken or-done, on or
after the twenty-fifth day of March, 1969, in exercise of the powers derived from any
President's Orders, Martial Law Regulations, Martial Law Orders, enactments,
notifications, rules,
orders or bye-laws, or in execution of any orders made or sentences passed by any
authority in the exercise of powers as aforesaid, shall be deemed to be and always to
have been validly made, taken or done. As against that Article 295 provided that where a
law (including a President's Order, a Martial Law Regulation or a Martial Law Order) is
repealed or is deemed to have been repealed by, under or by virtue of this Constitution
the repeal shall not except as otherwise provided in the Constitution,---
(a) revive anything not in force or existing at the time at which the repeal takes
effect; _
(b) affect the previous operation of the law or anything duly done or suffered under
the law;
(c) affect any right, privilege, obligation or liability acquired, accrued or

incurred under the law;
(d) affect any penalty, forfeiture or punishment incurred 'in respect of any offence
committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment; or
(f) affect the continuance of any body or authority constituted by or under such
law, "
This Court after consideration has held as under:
"It is a well-established rule of interpretation that wherein a statute there are both general
provisions as well as special provisions for meeting a particular situation, then it is the
special provisions which must be applied to that particular case or situation instead of the
general provisions. Applying this principle of generalia specialibus non derogant, the
provisions of Article 295 will have to be applied to the repealed legislative measures and
thereunder it is significant that only acts 'duly done' or things 'suffered under the law' are
protected. Acts done mala fide or without jurisdiction or acts which are coram non judice
would clearly not be acts 'duly done' and, therefore, the protection would not extend to
such acts.
In either view of the matter, therefore, the conclusion to which I have arrived is that the
validity given by clause (2) of Article 281 of the Interim Constitution to acts done or
purported to be done in exercise of the powers given by Martial Law Regulations and
Orders since repealed or even in the purported exercise of those powers do not have the
effect of validating acts done coram non judice or without jurisdiction or mala fide. Such
an interpretation, in my view, not only gives full effect to the provisions of the Interim
Constitution but also administers the will of the law-maker as far as it can be gathered
from a harmonious reading of the provisions of clause (2) of Article 281 alongwith some
of the other provisions of the same Constitution without departing from the well-
recognised principle that the Legislature should not be imputed the intention of
perpetuating or perpetrating an injustice."
71. In the context of what is stated above, it is to be seen whether really there is
conflict between Article 48(1) and Articles 177 and 193 of the Constitution. Interpretation
of the provisions of the Constitution is to be done in M a responsible manner and is to be
done in such a way that the Constitution is construed as a whole as an organic instrument
and no part of it is rendered as redundant. If Constitution of 1973 is considered as a
Page No. 38 of 116

whole then reading of the Constitution indicates that it contains Federal Character and
Parliamentary Form IN of Government. In Parliamentary Form of Government Prime
Minister is Head of the Executive and all Executive actions are taken in the name of the
President. i Article 48(l) envisages that in the exercise of his functions, the President shall
act in accordance with the advice of the Cabinet or the Prime Minister. This is to be read
in conjunction with Articles 177 and 193 of the Constitution so far as the appointments of
the Judges of the Superior Courts are concerned. It will not be correct to say that Articles
177 and 193 of the Constitution are special provisions which do not attract application of
Article 48 of the Constitution, which contains the basic characteristic of Parliamentary
Form of the Government to the effect that the President has to act in accordance with the
advice of the Cabinet or the Prime Minister. This provision of Article 48(1) will be
automatically attracted whenever the President is exercising' his functions unless the
cases fall squarely under Article 48(2) of the Constitution in which it is stated that the
President l shall act in his discretion in respect of any matter in respect of which he is l
empowered by the Constitution to do so. So either the President has no discretion but has
to act in accordance with the advice of the Cabinet or the Prime Minister as
contemplated. under Article 48(l) or can act in his discretion as contemplated under
Article 48(2) of the Constitution.
72. Raja Muhammad Akram, learned counsel for petitioner in C..P.54/1996 submitted that
there are three categories providing for exercise of powers by the President. In the first
category, the President can act in his discretion. In the second category language used is
such that advice is excluded by implication. In the third category, Article 48(1) would not
apply. On the subject of appointments he further mentioned three categories. In the first
category President can act in his discretion. In the second category the President has to
act on the advice of the Prime Minister. In the third category President has to make
appointments after consultation with. According to the learned counsel appointments of
Judges in the Superior Judiciary contemplated under Articles 177 and 193 fall in the third
category where appointments are made by the President after consultation with. Since
consultative process is provided specifically hence advice of the Prime Minister to the
President as contemplated under Article 48(1) is not attracted.
73. Contention of Raja Muhammad Akram, as stated in the above paragraph, is not
tenable for the reason that if advice of the Prime Minister is to be excluded because
consultative process is provided in Articles 177 and 193 of the Constitution, then this rule
will have to be applied to all the provisions on the subject of appointments in Judiciary,
which can be called judicial structure but could be extended to the whole structure of the
Constitution. The rule will be that in the appointments if the President has to consult
consultees and the Prime Minister is not mentioned then the Prime Minister has no role to
play. Conversely, when the President is not required to consult, he shall have to act on the
advice of the Prime Minister. Both cannot go together. Applying the rule stated above to
the provisions relating to judicature, it would then make very interesting reading. For
example, in Article 176, which provides for the constitution of the Supreme Court is
provided that so many other Judges as may be determined by the Act of Parliament or
until so determined may be fixed by the President. In this provision, consultation is not
mentioned hence advice of the Prime Minister is attracted. Article 177 relates to the
appointments of Chief Justice of Pakistan and so far his appointment is concerned
consultation is not required which means Prime Minister has role to play. In the second
part of the same sub-Article (1) the President is authorised to appoint other Judges after
consultation with Chief Justice. This shows that in the appointment of Chief Justice of
Pakistan Prime Minister has a say but in the appointments of other Judges of the Supreme
Court the Prime Minister has no say. Article 180 provides for appointment of Acting
Chief Justice and because consultation is not mentioned hence Prime Minister will have a
say. Article 181 relates to appointments of Acting Judges in the Supreme Court and since
word consultation' is not used therefore Prime Minister will have a say. Article 182
relates to the appointments of Ad hoc Judges and here the initiative is to be taken by the
Chief Justice of Pakistan. In clause (a) the consultation is not mentioned, so advice of
Prime Minister will be attracted and in clause (b) consent of the Chief Justice of the High
Court is mentioned, so advice of the Prime Minister will be excluded. Article 183(1)
provided for permanent seat of the Supreme Court at Islamabad. Under sub-Article (2)
Chief Justice of Pakistan can declare other places after approval of the President for
sitting of the Supreme Court which will exclude advice of the Prime Minister but in sub-
Page No. 39 of 116

Article (3) President is empowered to declare sitting of the Supreme Court at any such
place until provision is made for establishment at Islamabad, advice of the Prime Minister
will be attracted. Under Article 193 for appointment of a Judge of the High Court
consultation is mentioned which will exclude advice of the Prime Minister. In Article
200(1) for transfer of a Judge from one High Court to another, consultation is required, so
advice of the Prime Minister will be excluded. In Articles 200(3) and 203-C 'consultation'
is not mentioned hence advice of the Prime Minister will be attracted. This argument that
where process of consultation is provided and Prime Minister is riot mentioned by
designation then in the process -advice of the Prime Minister is not attracted;. does not
sound convincing because then only two Articles 177 and 193 would exclude the advice
of the Prime Minister but in all other Articles relating to the appointment of Judges,
advice would be included.
74. After considering the arguments advanced for and against the proposition on the
point whether for making appointments of Judges under Articles 177 and 193, which are
special provisions, advice of the Prime Minister i to the President under general provision
of Article 48 is attracted or not, we are of the considered opinion that there is no apparent
conflict ltt Articles 48 on one side and 177 and 193 on the other side, because Articles
177 and 193 are to be read in conjunction with Article 48(1) which is omni potent
provision being special characteristic of Constitution of 1973 which envisages
Parliamentary] Form of Government. If the Constitution-makers. intended even after
promulgation of Eighth Amendment to exclude Article 48(1) from application to Articles
177 and 193, then they could have expressly mentioned in Articles 177 and 193 that the
President while performing his functions under these Articles is allowed to act in his
discretion excluding advice of the Prime Minister and would be deemed to be acting
under Article 48(2). For such reasons we are of the view that there is no conflict as
appointments under Articles 177 and 193 of the Constitution are made in conjunction
with Article 48(1) of the Constitution always attracting and applying advice of the Prime
Minister to the President.
75. The fifth point is whether President is bound by the advice of the Prime Minister
in respect of appointments of Judges as contemplated under Articles 177 and 193 of the
Constitution. On this point, Mr. Khairi, petitioner in C.P. 23/1996, submitted that the
President is not bound by the advice of the Prime Minister in respect of appointments of
Judges because in such appointments Article 48(2) will be attracted which gives President
discretionary powers. Here, discretionary powers will be exercised by the President by
implication because these provisions of the Constitution, namely, Articles 48, 177 and
193 are to be construed in such a way that Judiciary is made Independent. There are so
many provisions in the Constitution to which Article 48 does not apply for the reason that
President has to act subject to his satisfaction; such Articles are: 89., 232, 235 and so on.
76. In this respect, Mr. Shahid Hamid, counsel for the President, argued that President as
Head of the State has responsibility as envisaged in. the Constitution and has to keep
himself fully informed and the Constitution has empowered him under Article 56 to
address either House or both Houses in the Joint Sitting on matters of public importance.
He had sent message to both the Houses on the question of corruption, which is rampant
in the country and is a matter of great national importance and suggested that law should
be made on the subject which would apply to all including himself. Learned counsel then
divided the powers of the President, mentioned in the Constitution, in seven categories. In
the first category are Articles of the Constitution in which President is empowered to act
in his discretion. In the second category are Articles in which words "in his discretion"
are not mentioned. In the third category are Articles in which President is bound by the
advice ("shall" and "may"). In the fourth category are Articles in which functions are to
be performed by the President subject to Article 48(1). In the fifth category are Articles
under which President is to exercise powers either on the advice of Prime Minister or
independently, provided he is satisfied or forms the opinion that Constitutional basis
exists for such exercise of that power. In the sixth category are Articles under which
President is to exercise powers and discharge his duties with specified consultees. And in
the seventh category there are Articles according to which Constitutional duty is to be
performed by the President which is to be treated as sacred trust. According to the learned
counsel so far appointments of Judges are concerned under Article 177 and 193 of the
Constitution, President has to act in his discretion impliedly which would be covered by
Page No. 40 of 116

Article 48(2) of the Constitution for the reasons that sixth and seventh categories of
powers will be attracted. According to sixth category President is to consult specified
consultees and the whole methodology is provided in the Constitutional scheme of
appointments without mentioning Prime Minister, hence advice of the Prime Minister is
excluded. Category seven would also cover the case of appointments of Judges because
here the President is performing Constitutional duties and he has to see that appointments
are made strictly in accordance with the procedure which is laid down in the Constitution.
77 . In furtherance of his contentions, Mr Shahid Hamid further submitted . that in the

original 1973 Constitution role of the President was insignificant and was -no more than
that of a robot. Eighth Amendment inserted in the Constitution in 1985 has brought about
radical changes and the President has been given very meaningful and effective role to
play under the Constitution and has been freed from the advice of the Prime Minister in
so many cases. He has also drawn our attention to Article 90(1) to show that after Eighth
Amendment Executive Authority of the Federation is vested in the President and is to be
exercised by him either directly or through officers subordinate to him in accordance with
the Constitution. Previously, Article 90 before Eighth Amendment provided that
Executive Authority of Federation was to be exercised in the name of the President by the
Federal Government consisting of Prime Minister and Federal Ministers which shall act
through the Prime Minister who shall be Chief Executive of the Federation. This
proposition is dealt with in the preceding paragraphs of this judgment with observation
that the amendment so made does not make much difference for the reason that Article 90
is to be read in conjunction with Article 48 of the Constitution and the language used in
Article 90 by Eighth Amendment has been borrowed from Article 53 which is to be read
in conjunction with Article 74 of the Indian Constitution. It may be mentioned here that
Article 53 of the Indian Constitution in which same language is used as is now contained
in Article 90 of our Constitution after Eighth Amendment and the language so used was
there from the very beginning when the Constitution of India was promulgated in 1949.
Indian Constitution contemplates parliamentary form of Government, so is the
Constitution of this country even after the Eighth Amendment.
78. There is similarity in the provisions relating to appointments of Judges in - the

Constitutions of India and Pakistan. In the case of Supreme Court Advocates-on-Record
Association v. Union of India (AIR 1994 SC 268) it is held that President is obliged to act
in accordance with advice of Council of Ministers circumscribed by the condition that
advice given must be in accordance with Articles 124 and 217, as interpreted by the
Supreme Court. Likewise, in Pakistan this Court has also in the case of appointment of
Judges reported as Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) has
considered in great detail all the Articles relating to the judiciary and has held that in such
appointments recommendation of Chief Justice of the High Court and the Chief Justice of
Pakistan are to be accepted and acted upon by the President/Executive in the absence of
concrete and valid reasons to be recorded., We have interpreted the relevant provisions in
the Constitution keeping in view the preamble, Article 2A, Islamic provisions in the
Constitution and independence of judiciary and separation of judiciary from Executive as
is contemplated under Article 175(3) of the Constitution. In the circumstances, to the
performance of Constitutional duties, it is to be seen that provisions in the Constitution
relating to the appointments of Judges are now to be construed in the light of the
judgment which holds the field.
79. Mr. Hamid Khan, who represented Pakistan Bar Council, submitted before us that
Eighth Amendment has not changed the complexion or basic character of the Constitution
of 1973 which contemplates parliamentary form of Government beyond dispute or doubt.
Eighth Amendment has at the most increased powers of the President to create balance
between the powers of the Prime Minister and President in order to make the Constitution
workable retaining the Parliamentary form of Government. He further submitted that
Article 58 has been amended by the Eighth Amendment by giving power to the President
to dissolve National Assembly in his discretion requiring holding of election within 90
days. In the meantime, in the sub-Article (5) of Article 48 provision is made for
appointment of caretaker Cabinet. General Muhammad Zia-ul-Haq, after dissolving the
National Assembly and dismissing the Government of Mr. Muhammad Khan Junejo
appointed caretaker Minister without appointing the Prime Minister. This point came up
Page No. 41 of 116

for consideration in the case of Federation of Pakistan v. Muhammad Saifullah Khan
(PLD 1989 SC 166) end this Court held at page 215 of the report reproduced as under:--
"In this background the Constitution does not visualise a caretaker Cabinet without a
Prime Minister. The absence of Prime Minister from a Caretaker Cabinet alters
for the period under discussion the very character of the Constitution from a
Parliamentary democracy to a Presidential system of Government. The Courts
can neither countenance nor condone all this at this stage and in these
proceedings. Such violations and breaches concern the very essential features of
the Constitution. What are the legal consequences or individual acts done, or
actions already taken and, suffered, we are leaving' it to be decided in individual
cases, more appropriately brought before us."
. 80. Mr Hamid Khan further submitted that in Parliamentary Democracy advice of Prime
Minister is a must and binding even if it is not mentioned specifically. He has referred to
Indian Constitution Article 74 before amendment in which it is mentioned that there
shall be a Council of Ministers with the Prime Minister at the Head to aid and advice the
President. In the case of Shamsher Singh v. State of Punjab and another (AIR 1974 SC
2192) it is held that the President as well as the Governor act on the aid and advice of
the Council of Ministers in Executive action and is not required by the Constitution to
act personally without aid and advice of the Council of Ministers or against the aid and
advice of the Council of Ministers. Where the Governor has any discretion, he acts on
his own judgment. The Governor exercises his discretion in harmony with his Council
of Ministers. The appointment as well as removal of members of the subordinate
judicial service is an Executive action of the Governor to be exercised on the aid
and advice of the Council of Ministers in accordance with the provisions of the
Constitution. That is why any action by any servant, of the Union or State in regard to
appointment or dismissal is brought against the Union or the State and not against the
President or the Governor.
81. In the case of Shamsher Singh (supra) paragraph 148 at page 2228 of the report is
very pertinent and is reproduced as under:---
"In the light of the scheme of the Constitution we have already referred to, it is doubtful
whether such an interpretation as to the personal satisfaction of the President is correct.
We are of the view that the President means, for all practical purposes, the Minister or the
Council of Ministers as the case may be, and his opinion, satisfaction or decision is
Constitutionally secured when his Ministers arrive at such opinion, satisfaction or
decision. The independence of the judiciary, which is a cardinal principle of the
Constitution and has been relied on to justify the deviation, is guarded by the relevant
Article making consultation with the Chief Justice of India obligatory. In all conceivable
cases consultation with that highest dignitary of Indian Justice will and should be
accepted by the Government of India and the Court will have an opportunity to examine
if any other extraneous circumstances have entered into the verdict of the Minister, if he
departs from the counsel given by the Chief Justice of India. In practice the last word in
such a sensitive subject must belong to the Chief Justice of India, the rejection of his
advice being ordinarily regarded as prompted by oblique considerations vitiating the
order. In this view it is immaterial whether the President or the Prime Minister or the
Minister for Justice formally decides the issue. "
82. Mr. S.M. Zafar, learned Senior Advocate Supreme Court submitted that Eighth
Amendment is passed try the National Assembly under the shadow of Martial Law and
notwithstanding the fact that Members of the National Assembly were elected on non-
party basis, Constitution with Eighth Amendment included has become foundation of our
national legal order. Constitution of each country is according to its own aspirations
Quoting from Constitutional Interpretation by Philip Babbitt at page 12, he stated that
Constitutional modalities are the ways in which legal provisions are characterized as true
from Constitutional point of view. He named six such modalities. Firstly, the historical
(relying on the intentions of the framers and ratifiers of the Constitution), Secondly,
textual (looking to the meaning of the words of the Constitution alone, as they would be
interpreted by the average contemporary man on the street), thirdly, structural (inferring
rules from the relationships that the Constitution mandates among the structures it sets
Page No. 42 of 116

up); fourthly doctrinal (applying rules generated by precedent), fifthly ethical (deriving
rules from those moral commitments of the American ethos that are reflected to the
Constitution), and sixthly, prudential (seeking to balance the costs and benefit of a
particular rule). It was submitted by the learned counsel that important modality is
structural argument which means inferring from relations that Constitution creates inter
sc to various structures with which Constitution is concerned, Articles 177 and 193 in our
Constitution of 1973 which call for interpretation pertain to judicial structure requiring
interpretation which would be applied to the whole structure. In such circumstances, there
is no substance in the argument that in the appointments of Judges contemplated in our
Constitution, since Prime Minister is not mentioned specifically, then role is completely
excluded. Learned counsel then referred to various Articles of the Constitution under the
Chapter of Judicature which have been mentioned in the preceding paragraphs of this
judgment and need not be repeated.
83. Taking up textual argument, Mr. Zafar stated that Article 48(l) requires advice of -
Cabinet or Prime Minister in respect of functions and actions as Article 48(1) is all
embracing commenting upon the judgment in the Al-Jehad Trust case, learned counsel
stated that Supreme Court of Pakistan in the said judgment has provided for
independence of Judiciary which is fully secured. Chief Justice of Pakistan has assumed
the role to see that no wrong appointment takes place in the judiciary, With regard to the
advice of Prime Minister in respect of appointments of Judges, learned counsel submitted
that this role is actuated by the fact, both political and social at the relevant time and the
role to be played by the President in such appointments can be helpful and controlling
providing careful balancing.
84. The upshot of what is stated above is that in respect of appointments of Judges as
contemplated under Articles 177 and 193 of the Constitution advice of the Cabinet or
Prime Minister under Article 48(1) is attracted which is further qualified by and subject to
the ratio decidendi contained in the judgment of AI-Jehad Trust v. Federation of Pakistan
(PLD 1996 SC 324) in which it is held that in the appointments of Judges, opinion of the
Chief Justice of Pakistan and Chief Justice of High Court as to the fitness and suitability
of a candidate for' judgeship is entitled to be accepted in the absence of very sound
reasons .to be recorded by the President/Executive. If President/Executive appoints a
candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan
and the Chief justice of the High Court concerned, it will not be a proper exercise of
power under the relevant Article of the Constitution.
85. The last point is very thought provoking and was raised in the Court during the
hearing, which into the effect as to what will happen if the judgment of the Supreme
Court in the- appointment of Judges case is not implemented. Learned counsel who had
appeared in these matters made different .comments. Mr. S.M. Zafar as amicus curiae
stated that in such a situation President will be justified to invoke Article 58(2)(b) of the
Constitution because it would amount to arising of situation in which Government of the
Federation cannot be carried on in accordance with the provisions of the Constitution,
Under the four corners of the Constitution Article 189 provides specifically that 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.
Article 190 envisages that all executive and judicial Authority throughout Pakistan shall
act in aid of the Supreme Court. Article 204 empowers the Supreme Court to punish for
contempt any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or
disobeys any order of the Court;
(b) scandalizes the Court or otherwise does anything which tends to bring the Court or a
Judge of the Court into hatred, ridicule or contempt:
(c) does anything which tends to prejudice the determination of a matter

pending before the Court; or
'(d) does any other thing which; by law, constitutes contempt of the Court.
Page No. 43 of 116

86 In the case of non-implementation of the judgment it will have to be found out as to
who is responsible for not implementing it. Article 190 is a mandatory provision under
which there is no alternative for the Executive but has to act in aid of the Supreme Court.
Person identified as responsible for non- implementation of the judgment can be
punished by the Supreme Court for contempt for disobedience of its judgment. Perusal of
Articles 177 and 193 and other Articles which are relevant for the subject-matter of
judiciary shows that Supreme Court has to correspond with the President for
appointments as he is named specifically in the relevant Articles and all Executive actions
are to be taken in his name. It is expected that President shall see to it that appointments
of Judges in the superior Judiciary are made in strict accordance with the V
Constitutional scheme contemplated in Articles 177 and 193 of the Constitution which
are to be interpreted and read in conjunction with the judgment in Al-Jehad Trust case
which is authoritative adjudicatory pronouncement in respect or interpretation of Articles
in the Constitution relating to the judiciary. Time frame is also provided in the judgment
within which appointments are to be finalised. If there is undue delay or impasse which
shows that dilatory tactics are being adopted and sincere attempt is not being made to
implement the judgment then it will become the Constitutional duty of the President to
see that judgment of the Supreme Court is implemented and there is no violation or non-
compliance of Article 190 of the Constitutional which makes it mandatory for all
Executive and Judicial Authority throughout Pakistan to act in aid of the Supreme Court.
If all the Executive and Judicial Authorities in Pakistan are unable to come in aid of the
Supreme Court and judgment is not implemented, then such situation would be open to
be construed as impasse or deadlock and would amount to very unhappy situation
reflecting failure of Constitutional machinery and one would be justified to say that a
situation has arisen in which the Government of Federation cannot be carried on in
accordance with the provisions of the Constitution as is contemplated under Article 58(2)
(b).
87. For the facts and reasons stated above two Constitutional petitions 23/1996 and
54/1996 are 'disposed of in the terms stated above. Special Reference No.2 of 1996 filed
by the President of Pakistan under Article 186 of the Constitution also stands disposed of
in the terms stated above. Copy of the judgment may be sent to the President of Pakistan
as opinion of the Supreme Court on the question framed and sent by him as contemplated
under Article 186(2) of the Constitution.
(Sd.) .
SAJJAD ALI SHAH, C.J.
(Sd.)
FAZAL ELAHI KHAN, J.
RAJA AFRASIAB KHAN, J.---With utmost respect and humality, I agree

with the judgment having been rendered by the honourable Chief Justice.
However, in view of the importance of the questions involved, I will add a note of
my own.
AJMAL MIA. J.-y this common opinion, t intend to dispose of the above two
Constitution Petitions and the aforesaid Special Reference. Constitution Petition
o.2of 1996 has been filed lay Al-Jehad Trust through Mr. Taib-ul-'hab Al-Khairi,
which ways the petitioner in the case now town as 'Judges Case' reported in PD
1996 SC 321 (Al-.Tehad Trust through Raeesul Mujahideen Habib-ui-Waahab-ul-
Khairi and others v. Federation of Pakistan and others, in the said petition, the
petitioner has prayed for the following reliefs:---
Whereas Constitution Petition No.54 of 1996 has been filed by a practising Advocate, in
which he has sought the following relief:---
"In view of the above, it is most respectfully prayed that this Honourable Court may very
graciously issue necessary direction for protection and enforcement of fundamental rights
Page No. 44 of 116

of the petitioner under Articles 4, 14 and 25 and pronounce that the Prime Minister of
Pakistan has no power/authority under Article 48 of the Constitution of Pakistan to
interfere, in any manner, in the matter of appointment of Judges of superior Courts.
Any other relief to which the petitioner is found entitled may also graciously be granted."
It may be observed that the President of Pakistan, in Special Reference No.2 of

1996, has sought the opinion of this Court under Article 186 of the Constitution of the
Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, on the
following question:---
"Whether or not the powers of the President to make appointments to the Supreme Court
and the High Courts under Articles 177 and 193 of the Constitution are subject to the
provisions of Article 48(1) of the Constitution?"
The memo. of the Reference has given the background which compelled the President to
file the aforesaid Reference, namely, the then Prime Minister resisted the implementation
of the judgment of this Court in the Judges Case (supra) in spite of best efforts on the part
of the President.
2. In support of the above two Constitution Petitions, Messrs Habib-ulWahab Al-

Khairi, learned ASC and Raja Muhammad Akram. learned Sr. ASC have appeared.
Whereas the President was represented in the aforementioned Reference by Mr. Shahid
Hamid.
3. In response to the notices issued by the Court, Mr. Iqbal Haider had appeared as the
Attorney-General and Mr. Abid Hasan Minto, learned Sr. ASC, appeared for the
Federation up to 4-11-1996. However. after the dissolution of the National Assembly and
the dismissal of the Government on 5-11-1996, Mr. Shahzad Jehangir had put in
appearance as the Attorney-General and Mr. Abid
Hasan Minto withdrew from the case on the instructions of the Caretaker Government.
On an application of the former Prime Minister, Mohtarma Benazir Bhutto, she

was impleaded in the above two Constitution Petitions in her personal capacity as
respondent, No.3 by an order dated 23-11-1996, Mr. Iqbal Haider appeared on her behalf.
Messrs Syed Sharifuddin Pirzada, S.M. Zafar, Hamid Khan, Vice President of the
Pakistan Bar Council on behalf of the Pakistan Bar Council, Muhammad Akram Sheikh,
President of the Supreme Court Bar Association, M.L. Shahani, Advocate-General Sindh,
Mr. Shabbar Raza Rizvi, Additional Advocate-General Punjab, and Mr. Shah Jehan
Yousafzai, Additional Advocate General, N.-W.F.P., appeared as amicus curiae.
The learned Additional Advocates-General, Punjab and N.-W.F.P. adopted the

arguments of the learned Attorney-General, Mr. Shahzad Jehangir.
In addition to the above learned counsel, we had also heard one Agha Muhammad
Dilawar, who claimed to be the President of Pakistan Insaf Tehrik and Mr. Shahid
Orakzai.
4. The basic question before the Court is the question on which the President has
sought the opinion of this Court quoted hereinabove. Before touching upon the above
question, we may dispose of the preliminary objection raised by Mr. Abid Hasan Minto
when he was appearing for the Federation and Mr.Iqbal Haider- as to the maintainability
of the aforesaid two Constitution Petitions. The thrust of their arguments was that, in
order to attract the jurisdiction under Article 184(3) of the Constitution, there are two pre-
conditions, namely, (i) that a question of public importance should be involved, and (ii)
that such a question should be relatable to the enforcement of any of the fundamental
rights conferred by Chapter 1 of Part IL. According to them, the above two petitioners
failed to demonstrate that any of their fundamental rights has been violated. In
furtherance of the above submission, Mr. Abid Hasan Minto has referred to the case of
Haji Muhammad Saifullah Khan v. The Federation of Pakistan and others 1989 SCMR 22
Page No. 45 of 116

and the case of Dr. Amanullah Khan and another v. Chairman, Medical Research Council
and 3 others 1996 SCMR 1211.
In the first case, a Bench of this Court comprising Full Court has held that
invocation of jurisdiction of Supreme Court under Article 184(3) without alleging any
infringement of fundamental rights is barred.
Whereas in the second case, this Court declined a direct petition under Article 184(3) of
the Constitution, in which the petitioner sought a prohibitory writ directing inter alia
Pakistan Television Corporation from televising commercials of the cigarettes companies
on the television, as the petitioner failed to demonstrate that any of his fundamental rights
was violated.
On the other hand, Messrs Habib-ul-Wahab Al-Khairi and Raja Muhammad

Akram have vehemently contended that the aforesaid Constitution petitions are in fact in
continuation of the Constitution petition in the above Judges' Case and as the same was
entertained, the present Constitution petitions are also competent. Reliance was placed by
them on the following cases:---
(i) Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through
Prime Minister of Pakistan and another PLD 1989 Karachi 404;
(ii) Government of Sindh through Chief Secretary, Karachi v. Sharaf Faridi and
others PLD 1994 SC 105;
(iii) S.P. Gupta case AIR 1982 SC 149; and .
(iv) Supreme Court Advocates-on-Record Association v. Union of India AIR

1994 SC 268
They have also relied upon para. 18 of my opinion in the Judges' Case, which reads as
follows:---
"18. At this juncture, I may point out the right to have access to justice through an
independent Judiciary is a Fundamental Right as held in the case of Sharaf Faridi (supra)
by Saleem Akhtar, J. In this regard, reference may be made to the following
observation:---
'The right of 'access to justice to all' is well-recognised inviolable right enshrined in

Article 9 of the Constitution. This right is equally found in the doctrine of 'due process of
law'. The right of access to justice includes the right to be treated according to law, the
right to have a fair and proper trial and a right to have an impartial Court or Tribunal.
This conclusion finds support from the observation of Willoughby in Constitution of
United States, Second Edition, Vol. II at page 1709 where the term 'due process of law'
has been summarized. "
The above view has been affirmed by this Court in the case of Government of
Balochistan through Additional Chief Secretary v. Azizullah Menton and 16 others PLD
1993 SC 341. "
4. Mr. Muhammad Akram Sheikh, learned Sr. ASC, also supported the maintainability
of the aforesaid Constitution petitions and referred to the case of I.A. Sharwani and others
v. Government of Pakistan through Secretary, Finance Division, Islamabad and others
1991 SCMR 1041 and the case of Human Rights Cases 1993 SCMR 2001.
5. In Constitution Petition No.54 of 1996, only one relief has been prayed for relating
to the question, as to whether Prime Minister's advice under Article 48(1) is necessary or
not for the appointments of Judges of the superior Courts under Articles 177 and 193 of
the Constitution. Whereas in Constitution Petition No.23 of 1996, a number of reliefs
have been prayed for as is evident from the above-quoted para. from the memo. of the
said petition. The same inter alia include the aforesaid question of applicability of Article
48(1). In addition to the above, inter alia under sub-para. of the afore quoted para. a
Page No. 46 of 116

declaration has been sought to the effect that the appointment of the present incumbent of
the office of the Chief Justice of Pakistan cannot be challenged and that in future, the
senior most Judge is entitled to be appointed has the Chief Justice.
6. I may observe that in the Constitution petition. relating to the Judges' Case, the
petitioner had prayed that the then senior most Judge, Saad Saood Jan, J., who was then
appointed as the Acting Chief Justice, should be appointed as the permanent Chief
Justice. It may be observed that while the aforementioned Constitution petition was
pending, the present incumbent of the office of the Chief Justice was appointed. The
question, as to whether the senior most Judge had legitimate expectancy to be appointed
as the Chief Justice in the absence of any concrete thing against him, was argued before
the Bench which was hearing the Judges Case, to which I was a Member and so also the
learned Chief Justice. I sought the assistance on the above question of the learned counsel
who appeared in the aforesaid Constitution petition. My personal view was that since it
was not directly involved, the question of appointment of the Chief Justice of Pakistan
should also be decided as we were deciding the question vt appointment of the Chief
Justice of the High Courts. .judges, of the Supreme -Court aid the. High Courts and other
matters relating to the judicial appointments in exercise of jurisdiction under Article
184(3) of the Constitution. However, the learned Chief Justice was of the contrary view.
The above question was left open for the reasons mentioned in para. 53 of my opinion in
the Judges' Case.
7. The above mentioned question was again raised by the Federation in the Review
Petition filed against the judgment in the Judges' Case as well as in Special Reference No.
l of 1996. The above Review Petition was withdrawn by the then Government for the
reason, need not be repeated here. Whereas above Special Reference was withdrawn by
the Caretaker Government on 23-11-1996. Thus the above relief prayed for in para. ( 7 )
has nexus with the Judges' Case on the parity of reasoning in the latter case, and it can be
urged that the said relief falls within the ambit of Article ' 184(3) of the Constitution.
8. Mr. Shahid Hamid, learned counsel for the President, submitted that since the above
question remained unattended, it should be decided by the Court. I enquired from him as
to whether, it would be proper on my part to sit on the Bench and to hear the above
question after the retirement of Saad Saood Jan J. His reply was that nobody knew that
would happen in future, but in order to remove uncertainty and doubts, the aforesaid
question should also be adjudicated upon for future. He also submitted that he was
instructed by the President to make commitment that in future for the appointment of
Chief Justice of Supreme Court, seniority rule would be followed as held by this Court in
respect of the Chief Justices of the High Courts in the Judges' Case.
9. Mr. Iqbal Haider, with the permission of this Court, has placed on record a copy of
an agreement which was entered into in 1989 between the then President of Pakistan, Mr.
Ghulam Ishaq Khan, and the then Prime Minister of Pakistan, Mohtarma Benazir Bhutto,
inter alia containing the agreed procedure as to the appointment of the Chief Justices and
Judges of the superior Courts. The method of appointment of the Chief Justice of
Pakistan is provided in Item No.4, which indicates that it was agreed that the senior most
Judge would be given preference and that he would be superseded only in case there was
anything adverse on record against him.
10. Since while pronouncing the above order on 4-12-1996, we have

decided/expressed our view only on one question, the above matter need no further
discussion. The question in issue is, as to whether the advice of the Prime Minister under
Article 48(1) of the Constitution is necessary for the appointment of the Judges of the
superior Courts. In my view, the above question is directly linked with the Judges' Case.
The above matter was agitated before the Bench in the Judges' Case. It may be pertinent
to reproduce paras. 66 to 68 froth the above judgment, which read as follows:---
"66. Before parting with the above discussion, I may observe that Mr.Sharifuddin Pirzada
has contended that the appointment of Judges in the superior Courts by the President is
not an act of the nature which needs advice of the Prime Minister under Article 48 of the
Constitution. According to him, the relevant Articles of the Constitution confer power on
the President to appoint the Judges of the superior Courts after consulting the consultees
Page No. 47 of 116

mentioned in the relevant Articles; which do not include the Prime Minister. His further
submission was that since the special Articles provide specifically the consultees who are
to be consulted, this will negate Article 48 of the Constitution and thus the Prime
Minister's advice is not required. In support of his submission, he has referred to certain
cases and other material.
Mr. Khairi and Mr. Raja Muhammad Akram, learned counsel for the newly added
appellants Nos.3 to 7, had also submitted arguments in line with Mr. Sharifuddin
Pirzada's above arguments.
67. On the other hand, Mr. Qazi Muhammad Jamil, learned Attorney General, and Mr.
Aitzaz Ahsan, learned counsel for the Federation, have submitted that the appointment of
a Judge in a superior Court is an executive act and the Executive includes the President
and the Prime Minister. According to them, it is not necessary to go into the above
question.
68. Since the interpretation of various Articles given by this Court hereinabove will be
binding on the Executive, as such it is not necessary to go into the above question in this
case."
The above question was left open in view of the statement of the then AttorneyGeneral,
Mr. Qazi Muhammad Jamil, and Mr. Eitzaz Ahsan, the learned counsel for the
Federation, to the effect that the appointment of a Judge in a superior Court was an
executive act and the Executive includes the President and the Prime Minister and,
therefore, it was not necessary to go into the above question. I left the above question
open after observing that since the interpretation of various Articles given by this Court
would be binding on the executive and, as such, it was not necessary to go into the above
question in that case. The scenario which emerged after the judgment in the Judges' Case
was handed down, namely, the then Government resisted the implementation of the same
which is also evident from the facts narrated in the memo. of Reference filed by the
President. The above question has acquired importance and needs resolution.
11. I am, therefore, of the view that the above Constitution petitions are maintainable
at least to the extent of deciding the above question for the reasons inter alia stated in the
afore quoted para. 18 of my opinion from the Judges' Case. I may observe that some of
the reliefs prayed for in Constitution Petition No.23 of 1996 were in fact also prayed for
in the Judges' Case, but we refrained from dealing with the same as we were not inclined
to grant the same. It is, therefore, doubtful whether the same can be repeated.
12. Before dealing with the above question, I - may take up another preliminary
submission of Mr. Iqbal Haider, namely, that since the above mutual agreement entered
into between the then President and the then Prime Minister contained a detailed agreed
procedure as to the appointment of the Chief Justice and the Judges of the superior Courts
and as a Bench of this Court comprising Full Court, on the basis of the above agreement,
disposed of Civil Appeal No.486 of 1989 on 10-12-1989 through the judgment in the case
of Federal Government of Pakistan through the Secretary, Ministry of Law, Justice and
Parliamentary Affairs, Islamabad v. M.D. Tahir, Advocate and others 1990 SCMR 189,
there does not exist any doubt or dispute as to the mode of appointment of the Judges of
the superior Courts and, therefore, the above Constitution petitions and the Special
Reference are not warranted. In order to appreciate the above contention, it may be
pertinent to point out that a Division Bench of Lahore High Court in the case of M.D.
Tahir v. Federal Government and 12 others 1989 CLC 1369, while dismissing a
Constitution petition in limine, held that the advice of the Prime Minister under Article
48(1) of the Constitution was not necessary for the appointment of Judges in the superior
Courts for the following reasons:---
"5.- As regards the absence of the advice of the Prime Minister similar argument was
advanced before a Full Bench of this Court, in the case of Muhammad Sharif v.
Federation of Pakistan PLD 1988 Lah. 725 but according to the majority view
interference in the matter, in exercise of discretionary powers under Article 199 of the
Constitution was not called for. After hearing the petitioner we are not persuaded
otherwise. In any case the Prime Minister does not find mention in, Article 193, amongst
Page No. 48 of 116

the person, after consultation with whom the President is required to appoint the Judges.
It is Article 48(1) which ordains that in exercise of his functions the President shall act in
accordance with the advice of the Cabinet or the Prime Minister. Bur Article 193
specifically deals with the appointments of the High Court Judges and it is well-settled,
that where if, a statute there are two provisions, one of which is of specific character and
the other general one, then the specific provision ought to be applied unfettered by the
general one. This principle has also been exhaustively discussed iii Government of
Punjab v. Naila Begum PLD 1957 Lah. 336 to which one of us (Lone, J.) was a party."
The above matter was brought before this Court by the Federation in the form of above
appeal, which was disposed of by consent as under:---
"The learned Deputy Attorney-General on instructions from the Secretary, Ministry of

Law, Justice and Provincial Coordination, states that the Federal Government will be
satisfied if para. 5 of the impugned order dated 21st December, 1988, of the Lahore High
Court is excised and this appeal be disposed of accordingly. The offending portion in
para. 5 is as follows:
In any case the Prime Minister does not find mention in Article 193, amongst the
persons, after consultation with whom the President is required to appoint the Judges. It is
Article 48(1) which ordains that in exercise of his functions the President shall act in
accordance with the advice of the Cabinet or the Prime Minister. But Article 193
specifically deals with the appointments of the High Court Judges and it is well-settled
that where in a Statute there are two provisions, one of which is of specific character and
general one. This principle has also been exhaustively discussed in Government of
Punjab v. Naila Begum PLD 1987 Lah. 336 to which one of us (Lone, J). was a party.
Against which exception was taken by the Federal Government on the -ground that the
required notice under Order 27-A, Rule 1, was not given to the Attorney-General before
determining the Constitutional question.
Learned counsel' for the respondent No.2. Mr. Sharifuddin Pirzada stated that he had no
objection to the disposal of the appeal in the above manner as it seemed to him to be a
realistic and a practical approach.
Respondent No.l, however, objected to the disposal of the appeal on this short ground,
but as he had not filed arty appeal against the order, it became final as against him. As
such we do not find any substance in his contention. Accordingly, the offending portion-
be-excised„ but the judgment in all other respects stands. There will be no order as to
costs. "
It may be pertinent to mention that two of the learned Judges, namely, Abdul Kadir
Shaikh and Zaffar Hussain Mirza, JJ. appended their short notes to the effect that the
Court should have decided the above Constitutional question as it was the Constitutional
duty of the Court to interpret the Constitution, but, at the same time, they agreed to the
above consent order as the other learned Judges were agreeable to the same.
13. On the other hand, Mr. Syed Sharifuddin Pirzada, who appeared as amicus curiae,
has submitted that the above consent order recorded by this Court in the case of M.D.
Tahir (supra) cannot be treated as a decree or a judgment of the Court and, secondly, the
above agreement was not brought on record and, therefore, cannot be referred to. To
reinforce the above submission, he has cited the case of Pulavarthi Venkata Subba Rao
and others, Appellants v. Valluri Jagannadha Rao (deceased) by his heirs. and legal
representatives, and others, Respondents AIR 1967 SC 591 relevant at page 595 and the
case of Municipal Corporation of Delhi, Appellant v. Gurnam Kaur, Respondent AIR
1989 SC 38 relevant at page 42.
In the first case, it was held that a money decree passed on a compromise is not a
decision of the Court and; therefore, it does not constitute res judicata as to create
estoppel under section 115 of the Evidence Act, 1872. In the second case, it was
concluded that a direction given by the Supreme Court of India to the Municipal
Page No. 49 of 116

Corporation to construct stalls for pavement squatters by consent is not a decision to be
followed as a precedent by a High Court in a subsequent case.
14. The aforesaid mutual agreement contained a detailed procedure as to the guiding
principles for exercise of Presidential Constitutional functions and the procedure as to the
appointment of Judges of the High Courts, Chief Justices of the High Courts, Judges of
the Supreme Court, and the Chief Justice of the Supreme Court. which reads as
follows:---
"Mutually Agreed Guiding Principles for exercise of President's Constitutional functions:
(1) Discretion.- -The President should normally and a6 far as possible exercise his
discretion after taking the Prime Minister into confidence by prior information.
(2) Where word President simpliciter is used the President shall accept the advice of the
Prime Minister subject to requirement for reconsideration. The reconsidered advice
should be tendered by the Prime Minister-normally and as far as possible
accommodating the views of the President.
(3) Where advice of the Prime Minister is incorporated in the Article itself then it is the
advice which shall be accepted by the President without requirement of
reconsideration.
(4) Consultation, satisfaction, opinion, thinks fit, considers. Subject to detailed

examination of the individual Articles of the Constitution, in principle decision will
be based on consultations and as mutually agreed in one or more than one meetings.
The Prime Minister will tender advice to the President reflecting the
consensus/agreement reached which will be approved by the President accordingly.
Appointment of the high Courts:
(1) On his own initiative or on receipt of information from the Law and Justice Division
verbal or written a panel of three names against each vacancy is forwarded by the
Chief Justice of the concerned High Court to the Governor of the Province. Copy of
this communication is sent to the Federal Law Secretary.
(2) From the Governor the file goes to the Chief Minister of the Province. The Chief
Minister through office file makes recommendations or his comments on each
nominee of the Chief Justice to the Governor.
(3) The Governor sends a D.O. Letter to the Federal. Law Secretary containing his
opinion on each nominee in the Chief Justice's panel based on the
recommendations/comments of the Chief Minister.
(4) Copies of the D.O. Letters of the Provincial Chief Justice and the Governor are
sent by the Federal Law Secretary to the Chief Justice of Pakistan for his comments.
(5) Based on the recommendations/comments/opinions of the Provincial
Chief Justice, Governor of the Province and the Chief Justice of Pakistan, the Law and
Justice Division submits a summary to the Prime Minister together with
recommendations of Chief Justice and Governors. The Law and Justice Minister
approves the submission of the Summary.
(6) On receipt of the Summary, the Prime Minister calls for report from the DI.B.
and DG ISI. ..
(7) After completion of the above formalities, the Prime Minister and the President hold
consultations in the light of recommendations, comments, opinions and Intelligence
Reports etc.
Page No. 50 of 116

(8) Based on such consultations and as agreed in one or in more than one meetings the'
Prime Minister tenders advice on the Summary to the President reflecting the
agreement reached which is approved accordingly.
ITEM-1I
APPOINTMENT OF THE CHIEF JUSTICE OF A HIGH COURT
(1) Chief Justice of Pakistan sends his recommendation to the Federal Law Secretary.
(2) Law and Justice Division obtains the views of the Governor of the concerned
Province. Views of the Governor, based on the opinion of the Chief Minister of the
Province; are communicated to the Law and Justice Division.
(3) In the matter of appointment of the Chief Justice of a High Court, due weight is
given to the recommendation of the Chief Justice of Pakistan.
(4) Preference is given to the senior most puisne Judge of the High Court for
appointment as Chief Justice.
(5) The senior most Judge would be superseded only in case there is anything adverse on
record against him. In that case consultation would be held between the President
and the Prime Minister in order to determine the question of super session. If it is
agreed that on the basis of record the super session of most senior Judge is justified
then the next most senior of the Judges of High Court will be appointed Chief
Justice.
ITEM-III
APPOINTMENT OF THE JUDGES OF THE SUPREME COURT
(1) On the request of the Law and Justice Division or on his own initiative, the Chief
Justice of Pakistan sends a panel to the Federal Law Secretary to fill available
vacancies.
(2) On the basis of the recommendations of the Chief Justice of Pakistan, a Summary
(Submission authorised by the Law and Justice Minister) is submitted by the. Law
and Justice Division to the Prime Minister.
(3) Based on such consultations and as agreed in one or in more, than one meetings the
Prime Minister tenders advice on the Summary to the President reflecting the
agreement reached which is approved accordingly.
(4) Following has been the consistent practice so far in the appointment of
Supreme Court Judges:---
(i) On recommendation of the Chief Justice of Pakistan Supreme Court Judges have
been appointed from amongst the nominees of the Chief Justice of Pakistan.
(iij Nominees were .fudges of the High Court.
(iii) Representation of the various High Courts was kept in view.
(5) Above practice would continue to be followed in future also,
ITEM-IV
APPOINTMENT OF THE CHIEF JUSTICE OF PAKISTAN
(1) On occurrence of a vacancy of Chief Justice of Pakistan a Summary is submitted by

the Law and Justice Division to the Prime Minister. Submission of the Summary is
authorised by the Law and Justice Minister.
Page No. 51 of 116

(2) Preference is given to the senior most Judge of the Supreme Court for appointment
as Chief Justice. The senior most Judge would be superseded only in case there is
anything adverse on record against him
(3) Decision in principle would be made in the light of item 2 of Mutual Arrangements."
15. Tire above-quoted ' mutually agreed guiding principles indicates that modalities
for the exercise of Constitutional functions by the President and as to the appointments of
the Chief Justices and the Judges of the superior Court were mutually agreed to between
the then President and the then Prime Minister which was founded on participator
consultative process and consensus-oriented. If the above mutually agreed agreement
would have been adhered to by tree former Prime Minister, there aright not have been
any occasion for rendering judgment by this Court in the Judges Case or for the President
to have made the above Reference. The above document spells out a coordinated
working modality based on mutual confidence and understanding between the two high
functionaries of the State, which is a must for the good governance and prosperity of the
country. However, we cannot hold that in view of the above agreement, it is not necessary
to answer the above Reference or to adjudicate upon the above question in the aforesaid
two Constitution petitions. Mr. Syed Sharifuddin Pirzada's submission that the above
consent order in disposing of the above appeal by this Court in the case of Federation v.
M.D. Tahir (supra) cannot be treated as a judgment, seems to be correct. Secondly, it is
also true that since the above agreement was not brought even on the record of this Court
in the aforesaid appeal, it cannot be contended that the above appeal was disposed of on
the basis of the above agreement. Thirdly, the Court is under Constitutional duty to
interpret the Constitutional provisions as held in the case of Union of India v.
Sankalchand AIR 1977 SC 2328. In this view of the matter, Mr.Iqbal Haider's above
submission is devoid of any force. However, it is for the President and the Prime Minister
in power to consider, as to whether the above agreement can form a sound basis for
carrying out their respective Constitutional functions.
16. I may now revert to the above question.
(a) The learned counsel in support of the contention that the Prime Minister's advice
under Article 48(1) of the Constitution is not required for the appointments of Judges of
the superior Courts have inter alia contended as under:---
(i) That under the original Constitution the President was only titular and practically
had no functions to perform but the amendments made by the Eighth Amendment in the
Constitution have brought about a balance between the powers of the President and the
Prime Minister, though the Constitution remained a Parliamentary _Form;
(ii) That it is-not correct to urge that under Article 48 of the Constitution, the President
can act without accepting the Prime Minister's advice only in respect of those Articles
which expressly confer discretion on him;
(iii) That the ' appointments of Judges in the superior Courts cannot be equated with any
other Constitutional appointments, but it is a Constitutional duty in . the form of a
sacred trust and hence Article 48(1) of the Constitution has no application;
(iv) That Article 48 of the Constitution is a general Article and whereas Articles
177 and 193 of the same are special Articles providing special procedure for the
appointments of the Judges in the superior Courts and, therefore, the latter
Articles shall exclude the applicability of the former Article;
(v) That the conclusions recorded by this Court contained in para. 7(i), (v) and (vii)
in the Judges' Case PLD 1996 SC 367 require recording of reasons by the President
which cannot be done if it is held that the Prime Minister's advice is binding;
(vi) That the view that the Prime Minister's advice is not required under Article 48(1) of,
the Constitution is in accord with the objects of Independence and Separation of
Judiciary enshrined in the Constitution;
Page No. 52 of 116

(vii) That since India has adopted the Westminster Type of Parliamentary form, Articles
relating to appointment of Judges of the Indian Constitution and the case-law thereon
cannot be pressed into service in Pakistan as the Westminster Type of Parliamentary
form has not been accepted in Pakistan.
Syed Sharifuddin Pirzada's line of argument was somewhat different. According

to him, in order to eliminate any political consideration and to ensure Independence of
Judiciary, the Framers of the Constitution deliberately excluded the Prime Minister from
Articles 177 and 193 and, therefore, Article 48(1) has no application to the appointments
of the Judges of the superior Courts.
(b) The learned counsel, who canvassed at the Bar the opposite point of view broadly
had urged as follows:---
(i) That since Articles 177 and 193 of the Constitution have not been amended by the
Eighth Amendment, they would continue to operate as they were prior to the above
amendments in the Constitution;
(ii) That the President can act without or against the Prime Minister's advice in respect of
the Articles of the Constitution relating to the appointments of Constitutional offices
which expressly confer discretion on him;
(iii) That all appointments under the Constitution involve duty in the nature of sacred
trust and, therefore, appointments of Judges in the superior Courts cannot be
distinguished on that account;
(iv) That the rule that a special provision will exclude a general provision of a
statute is not attracted in the present case;
(v) That since in fact the Prime Minister is the consultor for the purpose of Articles 177
and 193 of the Constitution, he or she, as the case :nay be, will record reasons in
terms of para. 7(i), (v) and (vii) of the judgment in the Judges' Case;
(vi) That since prior and after the enforcement of 1956 Constitution during the period of
the Parliamentary Form of Government in Pakistan the appointments of the Judges in
the superior Courts have been made on
the basis of the Prime Minister's advice, the same cannot be deviated as a Constitutional
convention has come into existence;
(vii) That since even under the Rules of Business, 1973, framed under the Constitution of
1973 and as amended upto date, the appointments of the Judges of the superior
Courts are required to be made on the advice of the Prime Minister, it cannot be
urged that the same is not required under Article 48(1) of the Constitution;
(viii) That the factum that there exists a Constitutional convention/practice since the
adoption of the Parliamentary Form of Government in Pakistan to appoint Judges in
the superior Courts on the basis of the Prime Minister's advice negates the contention
that the Framers of 1956 or 1973 Constitutions intended to exclude the Prime
Minister's advice in case of appointment of Judges in the superior Courts;
(ix) That if we were to examine the question whether the Prime Minister's advice is
necessary under Articles 177 and 193 thereof by pressing into service six modalities
of Constitutional interpretation, it becomes evident that the same is required.
17. I may take up the above first contention mentioned in para. 16(a). In .order to
appreciate what amendments have been made through the Eighth Amendment in the
Constitution as to create balance between the powers of the President and the Prime
Minister, it may be pertinent to refer to the English translation of the political plan
announced by the then President, General M. Ziaul Haq, on 12-8-1983 at the seventh
session of the Majlis-e-Shoora, relied upon by Mr. Hamid Khan, in which he has dilated
upon the political history of Pakistan and the factum that a number of Constitutions had
Page No. 53 of 116

been framed since the .creation of Pakistan and the reasons for their failure. It may be
instructive to reproduce the relevant portion of the above speech which runs into more
than 20 printed pages, which reads as follows:---
"After deliberating on this issue and after exchanging views with my colleagues I have
reached the conclusion that we have three alternatives before us at the moment:
One; to restore the 1973 Constitution as it is;
Two; to abrogate the Constitution; frame a new Constitution and seek its endorsement by
the people; and
Three; to promulgate the 1973 Constitution with necessary amendments.
If we were to, adopt the first alternative it would mean that the country would
periodically face the same crises as it did in 1977, which meant that, on the one side, we
would have a despotic Prime Minister and, on the other, a helpless and ineffective
President so that the country would be at the mercy of a dictator. This would also mean
that we had learnt no lesson from our past. To adopt this course, therefore, would not be
in the national interest. Another important point to note is that in its pristine form the
1973 Constitution had "Islam" in it only to the extent . of its preamble while in its text it
is rarely mentioned. This to my mind runs counter to the aspirations of the nation.
The second alternative, too, was not, in our view, in the national interest because
to adopt such a course would mean plugging the country and the nation into a situation of
uncertainty and to throw Pakistan's Constitutional life back into the same position that
obtained at the time of its birth. Had that been my intention I would not have kept it in
abeyance for all these six years. I would have abrogated it a long time ago.
So after due deliberation and consultations we have decided to adopt the third
course because we consider it to be in the national interest. There are in this Constitution
certain settled issues and it would be inappropriate to reopen them. Apart from this there
is a consensus among all sections of the country on its restoration with certain
amendments. It would not be inappropriate to point out here that this view is also shared
by this House: and I and my colleagues greatly value this point. However, amendments of
two kinds must be made in this Constitution as has been demanded by sensible people
belonging to every school of thought. One aspect of the amendment relates to a suitable
alteration that needs to be made in the respective powers of the President and Prime
Minister: and the other to bring the Constitution in harmony with the Islamic principles. I
shall perhaps not be able to go into the details of the amendments contemplated, but in
deference to the principle of consultation I will definitely seek your advice as well as the
advice of the people.
I deem it necessary to identify the main points of the amendments contemplated.

In the first place the Objectives Resolution which has been included in the preamble of
the Constitution should find its place in the main text. Secondly, the guiding principles
that have been framed for us must necessarily be incorporated in the Constitution in some
form or the other. We believe that these guiding principles, in their original form, must
form part of the Constitution.
These are the barest minimum amendments that must be made in the 1973
Constitution so that apart from reflecting the Islamic aspirations of the people it may
protect the country from future crises.
After a dispassionate consideration of all these matters we have taken certain

basic decisions, which are:---
(1) The 1973 Constitution be restored but a balance be brought about between the
powers of the President and the Prime Minister and the Constitution harmonised with
Islamic principles. In adopting these amendments due consideration will be given,
apart from other proposals, to the opinion of the Members of the Majlis-e-Shoora
and the recommendations of the Ansari Commission.
Page No. 54 of 116

(2) There has been a lot of controversy with regard to the role of the Armed Forces. I
would like to end this controversy too. The Armed Forces will have no new
Constitutional role, the present accepted position in this matter will be maintained.
(3) Elections will be held on the basis of adult suffrage.
(4) The Prime Minister will be appointed by the President. But the person appointed
must in the president’s view command majority support in the National Assembly.
The Prime Minister, within two months of assumption of office, will be required to
obtain a vote of confidence from the National Assembly
(5) When the President feels that a need has arisen for seeking a fresh mandate for the
electorate, he can dissolve the National Assembly. But in such an event fresh
elections will have to be held within 75 days.
(6) . The President will have the powers to return for reconsideration to the Assembly and
the House a bill which has already been passed.
(7) The President will be the Supreme Commander of the Armed Forces. He will appoint
the Chairman of the Joint Chiefs of Staff Committee and the Chiefs of Staff of the
three armed services and determine the terms and conditions of their appointments.
(8) The appointment of the Chief Election Commissioner and members of the
Commission will also be made by the President in consultation with the Chief Justice
of Pakistan.
(9) The Provincial Governors will also be appointed by the President.
(10) Additionally, a National Security Council will be established. The Government of

the day will not be able to declare an emergency without the advice of the Council.
The composition and duties of the National Security Council be announced later.
(11) In order to improve the economic conditions of the country the private sector
will be encouraged and protected."
18. The above-quoted extract from the above speech indicates that the then President,
General M. Ziaul Haq, wanted to make minimum amendments on certain matters
including in respect of certain appointments. After the above disclosure of the political
plan by the then President, the elections for National Assembly and Provincial Assembles
were held on 25-2-1985 and 28-2-1985 respectively. After few days from the above
elections. Revival of the Constitution of 1973 Order, 1985 (President's Order No, 14 of
1985), hereinafter referred to as the R.C.O., was issued and gazetted on 2-3-1985
containing a number of amendments in the 1973 Constitution. Mr. Muhammad Khan
Junejo was appointed as the Prime Minister of Pakistan by the then President-i,, terms of
amended clause (2) of Article 90 of the constitution. He formed a political party in the
National Assembly. The R.C.CJ, was placed before the National Assembly for adopting
the same. However, it seems, that there was a bargain between the then President and the
party in power inasmuch as a number of amendments in the Constitution incorporated by
the R.C.O. were dropped/modified and the R.C.O. in tire, amended form was unacted as
Constitution (Eighth Amendment) Act, 1985 (Act XVIII of 1985) gazetted or, 1 i-11-1985,
hereinafter referred to as the Eighth Amendment. The Martial Law was lifted on 31-12-
1985. In other words, the Eighth Amendment facilitated the lifting of the Martial Law
within six or seven weeks from the date of its enactment. In my view, it is not necessary
to refer to all the amendment . I intend to refer only those amendments which have some
bearing on the controversy in issue. The above relevant amendments are as follows:---
(i) The original Article 46 reads as follows:---
"Original Article 46.--The Prime Minister shall keep the President informed on matters of
internal and foreign policy and on all legislative proposals the Federal Government
intends to bring before Parliament."
Page No. 55 of 116

The R.C.O. substituted the same, which was adopted through the Eighth Amendment
without any modification. The above substituted Article 46 provides as under:--- .
"R.C.O.. Article 46.--It shall be the duty of the Prime Minister--
(a) to communicate to the President all decisions of the Cabinet relating to the
administration of the affairs of the Federation and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the
Federation and proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the consideration of the Cabinet any matter
on which a decision has been taken by the Prime Minister or a Minister but which
has not been considered by the Cabinet."
(ii) Original Article 48 reads as under:--
. "Original Article 48.--(1) In the performance of his functions, the President shall act on
and in accordance with the advice of the Prime Minister and such advice shall be
binding on him.
(2) The question whether any, and if so what, advice was tendered to the President by
the Prime Minister shall not be inquired into in any Court.
(3) Save as otherwise provided in any rules made under Article 99, the orders of the
President shall require for their validity the countersignature of the Prime Minister." .
The above Article was substituted by the R.C.O. as follows:--
"R.C.O. Article 48.--(1) In the exercise of his functions, the President shall act in
accordance with the advice of the Cabinet, the Prime Minister, or appropriate Minister:
Provided that the President may require the Cabinet to reconsider or consider such
advice, as the case may be, either generally or otherwise, and the President shall act in
accordance with the advice tendered after such reconsideration or consideration.
(2) Notwithstanding anything contained in clause (1), the President shall act in his
discretion in respect of any matter in respect of which he is empowered by the
Constitution to do so.
(3) If any question arises whether any matter is or is not a matter in respect of which the
President is by the Constitution empowered to act in his discretion, the decision of
the President in his discretion shall be final, and the validity of anything done by the
President shall not be called in question on the ground that he ought or ought not to
have acted in his discretion.
(4) The question whether any, and if so what, advice was tendered to the President by
the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired
into in, or by, any Court, tribunal or other authority.
(5) Where the President dissolves the National Assembly, he shall, in his discretion,---
(a) appoint a date, not later than one hundred days from the date of the dissolution,
for the holding of a general election to the Assembly; and
(b) appoint a Caretaker Cabinet.
(6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister,
considers that it is desirable that any matter of national importance should be referred
to a referendum, the President may cause the matter to be referred to a referendum in
the form of a question that is capable of being answered either by "Yes" or "No".
Page No. 56 of 116

(7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the
holding of a referendum and the compiling and consolidation of the result of a
referendum. "
The above Article was modified by the Eighth Amendment inasmuch as above
clause (3) was omitted.
(iii) Original Article 50 of the Constitution reads as follows:---
"Original Article 50.--There shall be a Parliament consisting of two Houses to be known

as the National Assembly and the Senate. "
The same was substituted by the R.C.O. as under:--
"R.C.O. Article 50.--There shall be a Majlis-e-Shoora (Parliament) of Pakistan consisting

of the President and two Houses to/be known respectively as the National Assembly and
the Senate. "
The same was adopted by the Eighth Amendment:
(iv) Original Article 56 provided as follows:--
" original Article 56.--The President may address either House or both Houses assembled
together and may for that purpose require the attendance of the members."
"R.C.O., Article 56.--(1) The President may address either House or both Houses
assembled together and may for that purpose require the attendance of the members.
(2) The President may send massages to either House, whether with respect to a Bill
then pending in the Majlis-e-Shoora (Parliament) or otherwise, and a House to which
any message is so sent shall with all convenient despatch consider any matter
required by the message to be taken into consideration.
(3) At the commencement of each session of the Majlis-e-Shoora (Parliament), the

President shall address both Houses assembled together and inform the Majlis-e-
shoora (Parliament) of the causes of its summons.
(4) Provision shall be made in the rules for regulating the procedure of a House and the
conduct of its business for the allotment of time for discussion of the matter referred
to in the address of the President. "
The Eighth Amendment adopted the same with modification that in clause (3) the
words, "after each general election" were added.
(v) Original Article ~t3 reads as follows:--
"Original Article 58.--The President shall dissolve the National Assembly if so advised by
the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand
dissolved, at the expiration of forty-eight hours after the Prime Minister has so advised.
Explanation.- -Reference in this Article to 'Prime Minister' shall not be construed to

include reference to a Prime Minister against whom a resolution for a vote of no-
confidence has been moved in the National Assembly but has not been voted upon or
against whom such a resolution has been passed or who is continuing in office after his
resignation or after the dissolution of the National Assembly or a Federal Minister
performing the functions of Prime Minister under clause (1) or clause (3) of Article 95."
The same was substituted by the R.C.O. as under:---
Page No. 57 of 116

"R.C.O., Article 58.--(1) The President shall dissolve the- National Assembly if so
advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved,
stand dissolved at the expiration of forty-eight hours after the Prime Minister has so
advised.
Explanation.--Reference in this Article to "Prime Minister" shall not be construed to

include reference to a Prime Minister against whom a resolution for a vote of no-
confidence has been moved in the National Assembly but has not beets voted upon or
against whom such a resolution has 'been passed or who is continuing in office after his
resignation or after the dissolution of the National Assembly
(2) The President may also dissolve the National Assembly in his discretion where, in his
opinion, - an appeal to the electorate is necessary."
The Eighth Amendment re-substituted the above Article by providing as under:--
. "58.--(1) The President shall dissolve the National Assembly if so advised by the
Prime Minister; and the National Assembly shall, unless sooner dissolved, stand
dissolved at the expiration of forty-eight hours after the Prime Minister has so advised.
Explanation.--Reference in this Article to 'Prime Minister' shall not be construed to

include reference; to a Prime Minister against whom a (notice of a resolution for a vote of
no-confidence has been given) in the National Assembly but has not been voted upon or
against whom such a resolution has been passed or who is continuing in office after his
resignation or after the dissolution of the National Assembly.
(2) Notwithstanding anything contained in clause (2) of Article 48, the President may
also dissolve the National Assembly in his discretion where, in his opinion,--
(a) a vote of no-confidence having been passed against the Prime Minister, no other
member of the National Assembly is likely to command the confidence of the
majority of the members of the National Assembly in accordance with the provisions
of the Constitution, as ascertained in a session of the National Assembly summoned
for the purpose; or
(b) a situation has arisen in which the Government of the Federation cannot be carried
onP accordance with the provisions of the Constitution and an appeal to the
electorate is necessary.."
(vi) The original Article 75 reads as follows:--
"Original Article 75.--(1) The President shall assent to a Bill within seven days after it has
been presented to him for assent under Article 70, Article 71 or Article 73 and if the
President fails to do so he shall be deemed to have assented to the Bill at the expiration of
the said period.
(2) When the President has assented or is deemed to have assented to a Bill, it shall
become law and be called an Act of Parliament.
(3) - No Act of Parliament, and no provision in any such Act, shall be invalid by reason
only that some recommendation, previous sanction or consent required by the
Constitution was not given if that Act was assented to or deemed to have been
assented to in accordance with the Constitution. "
"R.C.O., Article 75.--(1) When a Bill is presented to the President for, assent, the
President shall, within, forty-five days,--
(a) assent to the Bill; or
Page No. 58 of 116

(b) in the case of a Bill other than a Money Bill, return the Bill to Majlis-eShoora
(Parliament) with a message requesting that the Bill, or any specified provision
thereof, be considered and that any amendment specified in the message be
considered. '
(2) When the President has returned a Bill to the Majlis-e-Shoora (Parliament), it shall
be reconsidered by the Majlis-e-Shoora (Parliament) in joint sitting and, if it is again
passed, with or without amendment, by the Majlis-e-Shoora (Parliament), by the
votes of the majority of the local membership of the two Houses, it shall be again
presented to the President and the President shall assent thereto.
(3) When the President has assented to a Bill, it shall become law and be called
an Act of Majlis-e-Shoora (Parliament).
(4) No Act of Majlis-e-Shoora (Parliament), and no provision in any such ' Act,
shall be invalid by reason only that some recommendation, previous sanction or consent
required by the Constitution was not given if that Act was assented to in accordance with
the Constitution. "
The Eighth Amendment adopted the above. substituted Article 75 with the
modification in clause (2), namely, that the words "the President shall assent thereto"
which appeared as the last words in the aforesaid sub-clause, were substituted by the
words "the President shall not withhold assent therefrom".
(vii) Original Article 90 provided as under:--
"Original Article 90.--(1) Subject to the Constitution, the executive authority of the
Federation shall be exercised in the name of the President by the Federal Government,
consisting of the Prime Minister and the Federal Ministers, which shall act through the
Prime Minister who shall be the chief executive of the Federation.
(2) In the performance of his functions under the Constitution, the Prime
Minister may act either directly or through the Federal Ministers.
(3) The Prime Minister and the Federal Ministers shall be collectively responsible to
the National Assembly:"
The R.C.O. substituted the same as follows:--
"The executive authority of the Federation shall vest in .the President and shall be
exercised by him, either directly or through officers subordinate to him, in accordance
with the Constitution. "
Whereas the Eighth Amendment resubstituted as under:--
"90.-(l) The executive authority of the Federation shall vest in the President and shall be
exercised by him, either directly or through officers subordinate to him, in accordance
with the Constitution.
(2) Nothing contained in clause (1) shall--
(a) be deemed to transfer to the President any functions conferred by any

existing law on the Government of any Province or other authority: or
(b) prevent the Majlis-e-Shoora (Parliament) from conferring by law functions on

authorities other than the President. "
(viii) Original Article 91 of the Constitution provided as follows:--
"Original Article 91.--(1) The National Assembly shall meet on the thirtieth day
following the day on which a general election to the Assembly is held, unless sooner
summoned by the President.
Page No. 59 of 116

(2) After the election of the Speaker and the Deputy Speaker, the National Assembly
shall, to the exclusion of any other business, proceed to elect without debate one of
its Muslim members to be the Prime Minister.
(3) The Prime Minister shall be elected by the votes of the majority of the total
membership of the National Assembly:
Provided that, if no member secures such majority in the first poll, a second poll shall be
held between the members who secure the two highest numbers of votes in the first poll
and the member who secures a majority of votes of the members present and voting shall
be declared to have been elected as Prime Minister Provided further that, if the number of
votes secured by two or more members securing the highest number of votes is equal,
further poll shall be held between them until one of them secures a majority of votes of
the members present and voting.
(4) The member elected under clause (3) shall be called upon by the President to assume
the office of Prime Minister and he shall, before entering upon the office, make
before the President oath in the form set out in the Third Schedule."
The R.C.O. substituted the same as under:--
(1) There shall be a Cabinet of Ministers, with the Prime Minister at its head, to aid
and advise the President in the exercise of his functions.
(2)' The President shall in his discretion appoint from amongst the members of the
National Assembly a Prime Minister who, in-his opinion, is most likely to command
the confidence of the majority, of the members of the National Assembly.
(3) The person appointed under clause (2) shall; before entering upon the office, make
before the President oath in the form set out in the Third Schedule and shall within a
period of sixty days thereof obtain a vote of confidence from the National Assembly.
(4) The Cabinet, together with the Ministers of State, shall be collectively
responsible to the National Assembly.
(5) The Prime Minister, shall, hold office during the pleasure of the President, but the
President shall not exercise his powers under this clause unless he is satisfied that the
Prime Minister does not command the .confidence of the majority of the members of
the National Assembly.
(6) The Prime Minister may, by writing under his hand addressed to the President,
resign his office.
(7) A Minister who for any period of six consecutive months is not a member of the
National Assembly shall, at the expiration of that period, cease to be a Minister and
shall not before the dissolution of that Assembly be again appointed a Minister
unless he is elected a member of that Assembly:
Provided that nothing contained in this clause shall apply to a Minister who is a member
of the Senate.
(8) Nothing contained in this Article shall be construed as disqualifying the Prime
Minister or any other Minister or a Minister of State for continuing in office during
any period during which the National Assembly stands dissolved, or as preventing
the appointment of any person as Prime Minister or other Minister or as Minister of
State during any such period. "
It may be observed that under the Eighth Amendment, a new clause (2A) was
added and clause (5) was amended. The same read as follows:--,
"91.--(1). .. . .. ... ... .... .. ... ... ... ... ..
Page No. 60 of 116

(2)....... ........ ........................ .
(2A). Notwithstanding anything contained in clause (2), after the twentieth day of March,
one thousand nine hundred and ninety, the President shall invite the member of the
National Assembly to be the Prime Minister who commands the confidence of the
majority of the members of the National Assembly, as ascertained in a session of the
Assembly summoned for the purpose in accordance with the provisions of the
Constitution. .
(3) . . ....................................
(4) ....................................
(5) The Prime Minister shall hold office during the pleasure of the President, but the
President shall not exercise his powers under this clause unless he is satisfied that the
Prime Minister does not command the confidence of the majority of the members of
the National Assembly, in which case he shall summon the National Assembly and
require the Prime Minister to obtain a vote of confidence from the Assembly.
(6)…………………………….
(7)…………………………
(8)……………………….
The remaining clauses of the above Article were incorporated through the Eighth
Amendment without any modification.
(ix) Original Article 93 of the Constitution reads as follows:--
"Original Article 93.--(1) The Prime Minister shall continue to hold office until his
successor enters upon the office of Prime Minister.
(2) Nothing in Article 91 or Article 92 shall be construed to disqualify the Prime

Minister or a Federal Minister or a Minister of State from continuing in office during
the period the National Assembly stands dissolved."
The R.C.O., substituted the same as under:--
"R.C.O., Article 93.--(1) The President may, on the advice of the Prime Minister, appoint
not more than five Advisers, on such terms and conditions as he may determine.
(2) The provisions of Article 57 shall also apply to an Adviser. "
It may be noticed that no amendment was made in the above Article by the Eighth
Amendment and the same was adopted.
(x) Original Article 99 of the Constitution reads as under:--
"Original Article 99.---(1) Orders and other instruments made and executed in the name
of the President shall be authenticated in such manner as may be specified in rules to be
made by the Federal Government, and the validity of an order or instrument which is so
authenticated shall not be called in question on the ground that it is not an order or
instrument made or executed by the President.
(2) The Federal Government may regulate to allocation and transaction of . its
business and may for the convenient transaction of that business delegate any of its
functions to officers or authorities subordinate to it."
The same was substituted by the R.C.O. as follows:--
"R.C.O.. Article 99.--(1) All executive actions of the Federal Government shall, be
expressed to be taken in the name of the President.
Page No. 61 of 116

(2) The President shall by rules specify the manner in which orders and other
instruments made and executed in his name shall be authenticated, and the validity of
any order of instrument so authenticated shall not be questioned in any Court on the
ground that it was not made or executed by the President.
(3) The President shall also make rules for the allocation and transaction of the
business of the Federal Government. "
The same was adopted by the Eighth Amendment.
(19)(i), I may highlight the above amendments brought about by the R.C.O.' and
the Eighth Amendment in juxtaposition with the original versions of the Constitution as
amended up to 5-7-1977. It may be pointed that .under original, Article 46 the Prime
Minister was required to keep the President informed on matters of internal and foreign
policy and all legislative proposals the Federal Government intended to bring before the
Parliament. Whereas under the amended Article, the following duties have been imposed
on the Prime Minister--
(a) to communicate to the President all decisions of the Cabinet relating to the
administration of the affairs of the Federation and proposals for legislation,
(b) to furnish such information relating to the administration of the affairs of the
Federation and the proposals for legislative as the President may call for, and
(c) if the President so requires to submit for consideration of the Cabinet any matter on
which a decision has been taken by the Prime Minister but which has not been
considered by the Cabinet.
It may be pertinent to mention that above amended Article 46 in fact had been
lifted from Pakistan Constitution, 1956 (hereinafter referred to as 1996 Constitution), as
Article 42 of the said Constitution was couched in the same language. Indian Constitution
also contains Article 78 which is identical to the above-amended Article 46.
(ii) It may further be pointed out that original Article 48 had three clauses. Whereas
under the R.C.O. the above-substituted Article had six clauses. It may be mentioned that
under the Eighth Amendment the above substituted Article has been retained with the
modification that clause (2) thereof was omitted
It may be observed that original clause (1) provided that in the performance of his
functions, the President shall act in accordance with the advice of the Prime Minister and
such advice shall be binding upon him. Whereas under the substituted clause the words
"and on" appearing after the words "the President shall act" and the words "and such
advice shall be binding on him" have been deleted. At this juncture I may point out that it,
was vehemently urged by Mr. Shahid Hamid and other counsel appearing in support of
the, Constitution petitions that the above amendments have made significant difference as
to its binding nature. I am not impressed by the above submission. Since under the
substituted clause (1), by virtue of proviso to it, the President has been empowered to
require the Cabinet to reconsider or consider the advice tendered under the above clause,
the words "shall be binding on him" could not have been retained. The omission of the
words "on and" are also of no significance. It will not be out of context to point out that
in clause (7) of Article 37 of '1956 Constitution it was provided that, "(7) In the. exercise
of his functions, the President shall act in accordance with the advice of the Cabinet on
the appropriate Minister or Minister of State, as the case nay be, except in cases where he
is empowered by the Constitution to act in his discretion, dud except as respects the
exercise of his powers under clause (6; "
It may further be highlighted that original Article 74 of the Indian Constitution

provided that "There shall be a Council of Ministers with the Prime Minister as the head
to advise the President". It may be observed that by the Constitution (42nd Amendment)
Act, 1974, the words "who shall, in the exercise of his functions, act in accordance with
such advice" were added. Then through the Constitution (44th Amendment) Act, 1978, a
proviso to the effect that "provided that the President may require the Council of
Page No. 62 of 116

Ministers to reconsider such advice either generally or otherwise and the President shall,
act in accordance with the advice tendered after such reconsideration was added.
The above substituted clause (1) is in line with clause (7) of Article 37 of 1956
Constitution and .Article 74 of the Indian Constitution. It may also be pointed out that
Indian Supreme Court has held that even under unamended above Article 74 the advice of
the Prime Minister was binding on the President. In this regard reference may be made to
the following cases:---
(i) Y.N.R. Rao v. Indirra Gandhi AIR 1971 SC 1002.
(ii) Samsher Singh v. State of Punjab AIR 1974 SC 2192.
The original clause (2) of Article 48 provided that the question, whether any
and if so what advice was tendered to the President by the Prime Minister shall not be
inquired into in arty Court. The above clause in the amended from has been reproduced
as clause (4) in the above substituted Article 48. In place of above clause (2) a new clause
has been provided as clause (2) providing that "Notwithstanding anything contained in
clause (1), the President shall act in his discretion in respect of any matter of which he is
empowered by the Constitution to so do". It may further be observed that under the
R.C.O. the clause (3) of the above Article empowered the President to decide finally the
question as to whether he had discretion in a particular matter. However, the latter clause
was omitted by the Eighth Amendment as pointed out hereinabove.
. It may again be observed that original clause (2) of Article 48 was substituted by the
R.C.O. in the form of clause (4) and the Name was retained without any amendment by
the Eighth Amendment. 'the effect of the amendment is that prior to the amendment, the
question whether any and if so what advice was tendered to the President by the Prime
Minister could not be inquired into in any Court. After the amendment the scope has
been enlarged by adding two more forums after the words "any Court" the words
"Tribunal and other authority".
It may be pointed. out that original clause (3) of Article 48 which required
countersignature of the Prime Minister on all orders made by the President for their
validity was dropped by the R.C.O. and the same position was maintained under the
Eighth Amendment.
It may be mentioned that the newly-added 'clause (5) co Article 48 by the R.C.O.
was retained by the Eighth Amendment With the modification that ire sub-clause "100
days" were substituted by '.`90" days. The above amended clause empowers the President
in case the National Assembly is dissolved under Article 58(2) to take following actions
in his discretion:
(a) to appoint a date not later than 90 days from the date of the dissolution for the
holding of a general election to the Assembly,
(b) to appoint a Caretaker Cabinet which includes Prime Minister.
It may further be observed that newly-added clause (6) to above Article is identical in the
R.C.O. and thc Eighth Amendment. It has two parts, first part confers discretionary power
on the President to refer any matter which lit; considers of national importance to a
referendum in the form of a question that is capable of being answered either by "Yes" or
"No". The second part empowers the Prince Minister to get any such question referred to
a referendum through the President.
(iii) It may be mentioned that original Article 50 ,provided that there shall be a
Parliament consisting of two douses to be known as the National Assembly and the
Senate. The above Article was amended and the same was retained by the Eighth
Amendment. The effect of the amendment is that the word "Parliament" has been
substituted by the word "Majlis-e-Shoora". The second amendment which may have
some bearing on the issue under reference is to the effect that instead of the words
"consisting of two Houses" the words "consisting of the President and two Houses" have
Page No. 63 of 116

been substituted. In other words, the President has become part of the Parliament though
he is not a Member of the Parliament At this juncture it will not be out of context to point
that Article 43 of 1956 Constitution was couched in the same language as the above-
amended Article 50 with the exception that the word "National Assembly" was mentioned
and not the word "Majlis-e-Shoora". It may further, be pointed out that the corresponding
Article in the Indian Constitution, is Article 79 which is also worded in the same
language. To put it differently under 1956 Constitution as well as under the Indian
Constitution the President is a part of the Parliament. The above amendment apparently
has been lifted from 1956 Constitution. "
(iv) It may further be pointed out that-original Article 56 lead only one para. providing
that the President may address either House or both the Houses assembled together and
may for that purpose require the attendance of the members. The above para- has been
numbered as clause (1) in the amended Article 56 and has been reproduced without any
amendment. It may also be observed that three new clauses were added as clauses (2), (3)
and (4) in the above Article 56 by the R.C.O., which were retained by the Eighth
Amendment without any modification. Clause (2) confers power on the President to the
effect that he may send messages to either House, whether with respect to a Bill then
pending in Majlis-e-Shoora (Parliament) or otherwise. It further provides that a House to
which any message is so sent shall with all convenient despatch consider any matter
required by the message to be taken into consideration. Whereas clause (3) imposes
obligation on the President to the effect that at the commencement of first Session after
each general election to the National Assembly and at the commencement of first session
each year to address both the Houses assembled together and inform the Majlis-e-Shoora
(Parliament) of the causes of its summons.
It may further be stated that above newly-added clause (4) provides that the
provision shall be made in the rules for regulating the procedure of a House and the
conduct of its business for .the allotment of time for discussion of the matters referred to
in the address of the President.
(v) It may be stated that the above-quoted original Article 58 had only one para. with
an Explanation. The above para. provided that the "President shall dissolve the National
Assembly" if so advised by the Prime Minister and the National Assembly, unless sooner
dissolved, at the expiration of 48 hours after the Prime Minister has so advised shall stand
dissolved. The Explanation appended to the above Article excluded for the purpose of
above Article 58 a Prime Minister against whom a vote of no confidence had already
been moved but not voted or who had resigned.
In the substituted Article 58 under the R.C.O. original Article 58 was numbered as
clause (1) with the Explanation. The clause itself was not amended but in the Explanation
certain minor amendments were made as is evident from the above-quoted Explanation.
The above clause (1) was retained under the Eighth Amendment. A new clause as clause
(2) was added providing that "the President may also dissolve the National Assembly in
his discretion where in his opinion an appeal to the electorate is necessary".
However, under the Eighth Amendment clause (2) was substituted providing
conditions under which the President has discretion to dissolve the Assembly by
incorporating sub-clauses (a) and (b) i.e. the President may dissolve the National
Assembly in his discretion wherein his opinion--
(a) a vote of no confidence having been passed against a Prime Minister, no other
member of the National Assembly is likely to command the confidence of the
majority of the members of the National Assembly in accordance with the provisions
of the Constitution as ascertained in a Session of the National Assembly summoned
for the purpose; or
(b) situation has arisen in which the Government of the Federation cannot be
carried on in accordance with the provisions of the Constitution and an appeal to the
electorate is necessary.
Page No. 64 of 116

To put it differently the unfettered and unbridled discretionary power which was
conferred. on the President by clause (2) of Article 58 framed under the R.C.O. was
circumscribed with the conditions contained in above clauses (a) and (b) by the Eighth
Amendment.
(vi) It may be noticed that the Original Article 75 provided that the President shall
asset a Bill. within 7 days after it had been presented to him for assent under the relevant
Article and if the President failed to do so, he shall be deemed to have, assented to the
Bill at the expiration of the said period.
Substituted clause (1) of Article 75 under the R.C.O. had been re-framed
providing that President shall give his assent within 45 days or in case of a Bill other than
a money Bill he might return the bill to the Majlis-e-Shoora with a message requesting
that the Bill or any specified provision thereof be reconsidered and that any amendment
specified in the message be reconsidered. It may further be observed that newly-added
clause (2) by the R.C.O. laid down that upon the return of the Bill by the President, the
same shall be reconsidered by Majlis-e-Shoora (Parliament) in a joint sitting and if it was
again passed with or without amendment by the Majlis-e-Shoora by vote of the majority
of the total membership of the two Houses, it shall again be presented to the President
who shall assent thereto. The above clause (2) was amended by the Eighth Amendment
inasmuch as period of 45 days was substituted by 30 days and the last few words of the
above clause were also substituted by the .words "the President shall not withhold assent
therefrom." Original clause (2) of the above Article had been retained by the R.C.O. as
well as by the Eighth Amendment, but was renumbered as clause (3).
(vii) It may be stated that original Article 90 had two clauses, namely, clause (1) which
provided that subject to the Constitution the executive authority of the Federation shall be
exercised in the name of the President by the Federal Government consisting of the Prime
Minister and the Federal Ministers which shall act through the Prime Minister, who shall
be the Chief Executive. Whereas original clause (2) laid down that in the performance of
his functions under the Constitution, the Prime Minister might act either directly or
through the Federal Ministers.
The above Article was substituted by the R.C.O. It had only one para. providing that the
executive authority of the Federation shall vest in the President and shall be exercised by
him either directly or through officers subordinate to him in accordance with the
Constitution. It may further be observed that under the Eighth Amendment, the above
para. was renumbered as clause (1) and a new clause as clause (2) was added providing
that nothing contained in clause (1) shall--
(a) be deemed to transfer to the President any functions conferred by any

existing law on the Government of any Province or other authority; or
(b) prevent Majlis-e-Shoora (Parliament) from conferring by law function on

authorities other than the President.
It will not be out of context to mention that the above newly-added clause (1) through the
Eighth Amendment providing that the executive authority of the Federation shall vest in
the President is lifted from clause (1) of Article 39 of 1956 Constitution, which
corresponded to Article 53 of the Indian Constitution.
(viii) It may be pointed out that as is evident from the above-quoted original Article 91
that it had three clauses and two provisos. Clause (1) provided that the National
Assembly shall meet on the thirtieth day following the day on which a general election to
the Assembly was held unless sooner summoned by the President. Whereas clause (2)
provided that after the election of the Speaker and the Deputy Speaker, the National
Assembly shall, to the exclusion of any other business, proceed to elect without debate
one of his Muslim members to be the Prime Minister, It may further be observed that
clause (3) laid down that the Prime Minister shall be elected by the votes of the majority
of the total membership of the National Assembly. ft may further be stated that the two
Provisos appended to the above clause provided formula for resolving the situation where
none of the members secured majority in the first poll or where the number of votes
Page No. 65 of 116

secured by two or more members securing the highest number of votes is equal. The
above Article 91 was re-drafted and enacted under the R.C.O. inasmuch as it provided six
clauses instead of three clauses. Clause (1) provided that there shall be a Cabinet of
Ministers with the Prime Minister at its head to aid and advise the President in the
exercise of his functions. Whereas clause (2) provided that the President shall in his
discretion appoint from amongst the members of the National Assembly a Prime
Minister, in his opinion, who is most likely tit command the confidence of the majority of
the members of the National Assembly. It may further be observe that 'clause (3) laid
down that the person appointed under clause (2) shall before entering upon the office
make before the President oath in the form set out in the Third Schedule and shall within
a period of 60 days obtain a vote of confidence from the National Assembly, Whereas
clause (4) provided that the Cabinet together with the Ministers of State shall be
collectively responsible to the National Assembly.
It may also be mentioned that clause (5) laid down that the Prime Minister shall
hold office during the pleasure of the President but the President shall not exercise his
powers under the above clause unless he was satisfied that the Prime Minister did not
command the confidence of the majority of the members of the National Assembly.
Whereas clause (6) provided that the Prime Minister might by writing under his
hand address to the President resign his office.
It may be pointed out that under the Eighth Amendment, above amended Article
91 was retained with certain additions inasmuch as clauses (1), (2), (4) and (6) were lifted
from the R.C.O. However, a new clause as clause (2A) was added after clause (2)
providing that notwithstanding anything contained in clause (2) after the 20th day of
March, 1990, the President shall invite a member of the National Assembly to be the
Prime Minister who commands the confidence of the majority of the members of the
National Assembly as ascertained in a Session of the Assembly summoned for the
purpose to accordance with the provisions- of the Constitution. In other. words, the
above. newly-added clause (2-A) has nullified the discretionary power of the President
with effect from 30-3-1990 given under above clause (2) to the effect that he could
appoint arty Muslim member of the National Assembly as the Prime. Minister who in his
opinion was most likely to command the confidence of the majority. It may further be
observed that in clause (3) under the Eighth Amendment after the words 'under clause
(2)'', the words "or as the case may be
invited under clause (2-)" were added. Whereas in clause (5) the words "in which case he
shall summon the National Assembly and require the Prime Minister to obtain d vote of
confidence from the Assembly" were added by the Eighth Amendment.
(ix) It may be stated Thai the. original Article 93 postulated that the Prime Minister
shall continue till his successor entered upon the office of the Prime Minister and that
nothing curtained in Article 91 or Article 92 was to be construed as to disqualify the
Prime Minister or a Federal Minister or a Minister of State from continuing in office
during the period the Assembly stood dissolved.
Whereas the above Article 93 was substituted by the R.C.O., which was retained
under the Eighth Amendment, The above substituted Article relates to the appointment of
Advisors not more than five by the President on the advice of the Prime Minister.
(x) It may be pointed out that Article 99 was substituted by the R.C.U. The same was
retained under the Eighth Amendment. Clause (1) of original Article 99 provided that
orders and other instruments made and executed in the mine of the President shall be
authenticated in such manner as may be specified in rules to be made by the Federal
Government, whereas substituted clause (1) lays down that all executive actions shall be
expressed to be taken in the name of the President. It may further be observed that
clause (2) of above original Article empowered the Federal Government to regulate the
allocation and transaction of its business and to delegate any of its functions to officers
or authorities subordinate to it. It may be pointed out that the above subject is now
covered by clause (3) of the above-substituted Article which lays down that "the
President shall also make rules for the. allocation and transaction of the business of the
Federal Government".
Page No. 66 of 116

Whereas clause (2) of the above-substituted Article provided that "the President
shall by rules specify the manner in which orders made and executed in his name shall be
authenticated... "
20. In addition to the above amendments which have been highlighted, I may observe
that clause (3) of Article 41 was amended by the R.C.O. which amendment was retained
under the Eighth Amendment. The effect of the above amendment was that for the
election of the President, the electoral college was expanded inasmuch as besides the two
Houses of the Parliament, members of the four Provincial Assemblies were included as
the members of the electoral college. In addition to that, besides discretionary power
conferred under above Articles 48(5), (6), 58(2) and 92 discussed hereinabove the
President was given discretionary power under Article 105(4) and in respect of the
appointments under Articles 213, 242(1-A) and 243(2) the detail of which given
hereinbelow inter alia in para. 22.
21. A resume of 'the above amendments indicate that under the original 1973
Constitution, the President as rightly pointed out by Mr. Shahid Harnidz learned counsel
for the President, formal orders which he could make, the counter signature of the Prime
Minister was required by virtue of clause (3) of Article 48 in order to make the saint
valid. However, the amendments have changed the position of the President inasmuch as
he has become part of the Parliament by virtue of amended Article 50. Besides the right
to address to the Parliament, he had been given the power to send message to either of the
Houses under clause (2) of Article 56.
Additionally under clause (1) of Article 75 the President instead of assenting to a

Bill other than a money Bill, can return the same to the Majlis-eShoora (Parliament) with
a message requesting that the said Bill or any specified provision thereof be reconsidered
and any amendment specified in the message be considered.
The executive authority of the Federation is vested in the President on account of

amended Article 90(1). It may further be observed that Article imposes duty on the Prime
Minister and creates right in favour of the President in respect of the matters mentioned
in clauses (a), (b) & (c) already highlighted hereinabove in para. 19(i ) ,
Whereas under the proviso to clause (1) of Article 48, the President has been
empowered to ask the Cabinet or the Prime Minister to reconsider the advice tendered
under above clause. It may further be stated that under clauses (2) and (3) of Article 99,
the President is to participate in the framing of the rules providing for the manner in
which the orders and other instruments made and executed are to be authenticated and
rules relating to allocation and transaction of business of the Federal Government.
`
22. The cumulative effect of the above amendments seems to be that the President is
no longer a titular head but by virtue of the various amendments, he can actively take
interest and participate in the working of the Legislature and the Executive. He did not
enjoy any discretionary power under the unamended Constitution. After the above
amendments in the Constitution he has been given j express discretionary power in the
following matters which he can exercise without or against the Prime Minister's advice
under Article 48(1) of the Constitution---
(i) to appoint a date for election under Article 48(5)(a);
(ii) to appoint a Caretaker Cabinet after dissolution of the National Assembly and
dismissal of the Cabinet under Article 58()(b),
(iii) to refer a matter of national importance for referendum under Article 48(6);
(iv) to dissolve the National Assembly under Article 58(2)(a) when confidence vote has
been passed against Prime Minister and the President is of the view that no other
Muslim member is likely to command the confidence of the majority;
Page No. 67 of 116

(v) to dissolve the National Assembly if the two conditions contained in sub-clause
(b) of Article 58 are fulfilled;
(vi) to accord approval to the Government under Article 105(1)(4) of the Constitution for
(a) appointment of the Chief Minister; (b) dismissal of a Cabinet which has not the
confidence of the Provincial Assembly; (c) dissolution of the Provincial Assembly
when an appeal to the electorate is necessary;
(vii)' to appoint tire Chief Election Commissioner under Article 21:3(1);
(viii)to appoint the Chairman, Federal Public Service Commission under Article 242(1-
A);
(ix) to appoint Chairman, Joint Chief of Staff Committee Army, Naval and Air
Staff under Article 243(2-C)
Mr. Shahid Hamid has invited our attention to . the following observations which
I made in my opinion in the case of Muhammad Nawaz Sharif PLD 1993 SC 473:
"In my view, the cumulative effect of the various provisions of the Constitution
relating to the President is that the President enjoys the . right to be consulted, the right to
encourage and the right to warn as remarked by Bagehot about the British Crown. In
order to discharge his above Constitutional duties, he is expected to be vigilant and to
keep his eyes and ears open. The documents produced by the Federation demonstrate that
the President has attended to the above Constitutional duties by highlighting the various
deficiencies and the need of improvement in the working of the Government. "
He has also - invited our attention to paras. 8 and 9 from the opinion of Rustam S.
Sidhwa J. at pages 683 and 684 of Kh. Ahmed Tariq's case PLD 1992 SC 640, in which
Sidhwa, J. has succinctly described the position of the President and has pointed out that
after the amendments the basic character of the Constitution is now a mix:---
"A few words may be stated about the position of the President. The President, as the
Head of the State, represents the unity of the Republic. He is thus placed above the party.
He is the benign moderator and the symbol of the impartial ,, dignity of the State. He is
entitled to certain communications and information, which is the duty of the Prime
Minister to furnish, with power to submit for the consideration of the Cabinet any matter
on which a decision may have been taken but which has not been considered by the
Cabinet. He can call upon the Cabinet to reconsider any advice tendered or consider such
advice. He has power to act in his discretion in respect of any matter it,, respect of which
he is empowered by the Constitution to do so, with entitlement to decide 'whether he is so
empowered. He has power to refer any matter of national importance to a referendum. He
has power to send messages to either house for their consideration. He has the right to
address both Houses assembled together at the commencement of each Session of
Parliament. He has the power to dissolve the National Assembly if, in his opinion, a
situation has arisen in which the Government of the Federation cannot be carried on in
accordance with the provisions of the Constitution. He has the power inter alia to appoint
the Chairman of the Joint Chiefs of Staff Committee and the three Chiefs of the Army
Staff, Naval Staff and Air Force Staff. He is at the apex, as the executive authority of the
Federation, which is vested in him, is exercised by him directly or through officers
subordinate to him. He is to be aided and advised in the exercise of his functions by the
Cabinet of Ministers, with the Prime Minister at its head. In the exercise of his functions,
he has to act in accordance with the advice of the Cabinet ox the Prime Minister; except
in cases where he is obliged to act in his discretion. The President is therefore no less
powerful than the Prime Minister.
The basic character of the Constitution is now a mix. It is not Presidential; it was never
meant to be. It is not totally Parliamentary; as it was intended."
The above-quoted observations seem to depict the correct nature of the Constitution and
the position of the President, which emerged on account of the above highlighted
amendments. However, since Articles 177 and 193 relating to the appointments of the
Judges of the superior Courts were not amended, the question arises, as to whether the
Page No. 68 of 116

above amendments in other Articles have in any way affected the operation of the above
two Articles.
23. I may take up the question, as to whether Article 48(l) is attracted in case of
appointments of Judges of the superior Courts. In this regard, I may mention that the
learned counsel were at variance about the scope of clauses (1) and (2) of the above
Article. According to Mr. Wahab-ul-Khairi, appointments of the Judges of the superior
Courts fall under clause (2) of Article 48 which, according to him, covers the acts/orders
passed by the President in exercise of his express or implied discretionary power.
Whereas according .to Raja Muhammad Akram, clause (1) of Article 48 is applicable to
all the functions which President performs under the Constitution except in the following
three categories:--- .
(i) the action taken or order passed under Articles with expressly provide which
that the President has discretion,
(ii) where the language of the Articles is such that clause (1) of Article 48 is
inapplicable,
(iii) where the functions to be performed by the President under the relevant Articles are
of the nature which by necessary intendment exclude advice under Article 48(l) of
the Constitution. ,
Whereas Mr. Shahid Hamid, learned counsel for the President, has categorised the
various Articles of the Constitution into seven categories in the context of Article 48,
namely:
(i) Articles of the Constitution in which it is specified that the President can act in
his discretion in exercise of powers conferred by such Articles, -tinder this category,
he has mentioned Articles 48(2), 48(5), 48(6), 8(2)(a), 58(22)(b), 105(3) read with
105(4). 203-C read with 2,03-A. 213, 242(1-A) and 243(2-C)3
(ii) Articles of the Constitution in which the words "in his discretion" are not mentioned
but on the reading of which it is evident that the duty imposed and/or the
right/power conferred is to be discharged/exercised by the President
independently ,of the advice of the Cabinet/Prime Minister or where the President is
either absolute or qualified discretion. The above category has been sub-divided by
hurt into two sub-categories. In the first sub-category, he has specified Articles 29,
42, 56(3) read with 50, 70(3), 73(1) read with 75, 75(2), 91(2_A)> 99(21, 99(3),
160(1), 160(4), 171, 1£30, 228(6), 2321;'7) and 239. Whereas under the second sub-
category, he has included Articles 44(2), 44(3), 45, 46(a), 46(b), 46(c), 47(7), 48(1),
56(1) read with 50, 56(2), 75(1)(b), 87(3), 91(8) read with 48(5), 91(5), 94, 100(2),
101(3) read with 101(1), 101(5) read with 101(1), 104 read with 101(1) and 160,
112(2), 162, 182, 183, 200(3), 208, 209(6) read with 209(5), 221 and 268(2).
(iii) Articles of the Constitution in terms of which the President is bound to .

exercise his functions in accordance with the advice of the Cabinet or as the case
may be of the Prime Minister and Articles in terms of which if the President acts he must
do so in accordance with the advice of the Cabinet/Prime Minister. This category has also
been bifurcated by him into two sub-categories under the captions "shall" and "may".
Under the first sub-category he has specified Articles 48(1), 46(6), 58(1), 92(1), 92(3);
whereas under the second sub-category, he has included Article 93 only.
(iv) Articles of the Constitution in terms of which the exercise of functions to be

performed by the President are (or appeared to be) subject to the provision of Article
48(1). In this category he has mentioned Articles 51(6), 54(1), 66(3)(b), 79, 91(1),
100(1), 145(1), 153(1), 153(2), 156(1), 160(2) read with 160(3), 160(6), 160(7),
168(1), 168(3), 168(6), 169, 176, 228(2), 228(4), 229, 233(2), 235(3), 235(2),
247(4), 247(5), 252(1), 258, 259(2).
(v) Articles of the Constitution in terms of which the President is to exercise the powers
conferred on him on the advice of the Prime Minister or as the case may be
Page No. 69 of 116

independently of such advice provided he is satisfied and/or considered and/or forms
the opinion that a Constitutional basis exists for the exercise of that power. In this
category, he has mentioned Articles 89(1), 186(1), 209(5), 229 read with 89(1),
232(1), 234(1), 235(1) and 247(6).
(vi) Articles of the Constitution in terms of which the President .is to exercise powers
and/or to discharge duties after consulting with the specified Constitutional
consultees. In this regard, he has included Articles 72(2), 101(1), 160(1), 200(1) and
218(2).
(vii) Articles of the Constitution in terms of- which a Constitutional duty in the form of a
sacred trust has been imposed on the President which is to be discharged by him
through participatory consultative process: in the case of the Supreme Court in
consultation with the Chief Justice of Pakistan and in the case of the High Courts, in
consultation with the Chief Justice of Pakistan, Governors of the Provinces and the
Chief Justices of the .High Courts. Under this category he has specified Articles 177,
181, 193 and 197.
According to Mr. Shahzad Jehangir, learned Attorney-General, the appointments

of the Judges of the superior Courts fall under clause (2) of Article 48 and, therefore,
Prime Minister's advice is not required. The same argument was adopted by the learned
Additional Advocates-General, Punjab and N.-W. F. P.
Whereas the learned Advocate-General Sindh, Mr. M.L. Shahani, besides

adopting the arguments of the learned Attorney-General, has submitted that Article 48
provides for three situations, namely, (1) executive functions which are covered by
Article 48(1), Constitutional functions of the President which are covered by Article
48(2) and political functions which are covered by. Article 48(6). '
On the other hand Messrs Iqbal Haider and Hamid Khan have submitted that there
are two categories under Article 48(1) and (2). According to them, the President is
required to act on the advice of the Prime Minister in all the matters except those matters
in respect of which he has been given discretion expressly by the relevant Articles of the
Constitution.
24. The learned counsel have taken us through the various Articles of the Constitution
particularly Mr. Shahid Hamid had analytically dealt with each and every Article
mentioned by him in the above seven categories referred to hereinabove. In my view, it is
not necessary to deal with each and every Article and to record .a finding that action
under a particular Article to be taken by the President requires Prime Minister's advice or
not as it will be beyond the scope of the controversy before us. However, I may refer to
some of the relevant Articles in support of the conclusions which I intend to record.
Broadly speaking, in my view, prima facie the various Articles of the Constitution can be
divided into following five categories for the purpose of application of Article 48(1) and
(2):---
(i) The Articles under which actions are to be taken in accordance with the advice
tendered by the Cabinet or Prime Minister;
(ii) The Articles under which the Prime Minister's advice is required but it will be
binding if it is in accordance with the law declared by the Apex Court;
(iii) The Articles which specifically provide for Prime Minister's advice or consultation
independent of clause (1) of Article 48, to which Articles. aforesaid Article 48(1)
would not be attracted to;
(iv) The Articles under which the President has been given discretionary power, and,
therefore, he can act without the advice of the Prime Minister by virtue of clause (2)
of Article 48;
(v) That the nature of the functions/duties/rights provided in certain

Articles is such which exclude the application of Article 48(1).
Page No. 70 of 116

25. In order to determine the scope of the first category referred hereinabove in para.
24, it may be pertinent to refer again clause (1) of Article 48 without the proviso
which provides that "in the exercise of his functions, the President shall act in
accordance with the advice of the Cabinet or the Prime Minister". It is evident that in
the exercise of his functions the President is required to act on the advice of the
Cabinet or the Prime Minister. The key-words used are "in the exercise of his
functions". The learned counsel who have appeared in the above matters were at
variance as to the meaning of the above word "function". According to M/s. Habib-ul-
Wahab-ul-Khairi, Raja Muhammad Akram and Shahid Hamid the word 'function'
employed in the above clause does not cover the act of appointments of the Judges in
the superior Courts as the same in their view it is neither a function nor an executive
act but it is an act in discharge of a sacred trust. Reliance was placed by them on sub--
para. (vii) of para. 22 of my opinion in the Judges' Case. (Al-Jehad Trust) PLD 1996
page 324 at page 428, wherein I have made the following observations:---
"(vii) that the power to appoint inter alia Judges is a sacred trust, the same should be
exercised in utmost good faith. Any extraneous consideration other than the merits is
a great sin entailing severe punishment."
It may be noticed that in the above observation I have employed the words "the power to
appoint inter alia Judges is a sacred trust". The use of the word 'inter alia' implies that
among others the act of appointments of Judges is "a sacred trust. In other words, the
other appointments of the State functionaries are equally sacred trust. The above
inference was drawn by me on the basis of an
Hadith (Rawiat) attributed to Hazrat Abu Bakr (Razi Allah Anho) reproduced from the
publication of the Magazine title (a publication of Islamic University, Islamabad). The
Rawiat speaks of all State appointments. The same seems-to be in consonance with the
concept of State in Islam, which is enshrined in the Preamble of our Constitution, which
has now become part of the Constitution by virtue of Article 2A, namely, that the
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". In this regard it may be pertinent to refer to the two judgments of
this Court relied upon by Habib-ul-Wahab-ul-Khairi namely:---
(i)Miss Asma Jilani v. The Government of Punjab (PLD 1972 SC 139 at page 182)
wherein Hamooduf Rehman, C.J. has made very pertinent observation as to the concept
of sovereignty in relation to a State in Islam and the status of the State functionaries as
trustee. The. above
observations read as follows:---
Say, ' O Allah, Lord of Sovereignty. Thou gives sovereignty to

whosoever Thou pleasest; and Thou takest away sovereignty from whomsoever Thou
pleasest. Thou exaltest whomsoever Thou pleasest and Thou absest whomsoever Thou
pleasest. Pt: 3, Ch.3, A1 ' Imran, Ay. 27).
The basic concept underlying this unalterable principle of sovereignty is that the entire
body politic becomes a trustee for the discharge of sovereign functions. Since in 'a
complex society every citizen cannot personally participate in the performance of the
trust, the body politic appoints State functionaries to discharge these functions on its
behalf and for its benefit, and has the right to remove the functionary so appointed by it if
he goes against the law of the legal sovereign, or commits any other breach of trust or
fails to discharge his obligations under a trust. The functional Head of the State is chosen
by the community and has to be assisted by a Council which must hold its meetings in
public view and remain accountable to public. It. is under this system that the
Government becomes a Government of laws and not of men, .for, no one is above the
law. It is this that led Von Hammer, a renowned oriental list, to remark that under the
Islamic system "the law rules through the utterance of justice, and the power of the
Governor carries out the utterance of it."
Page No. 71 of 116

Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595 at page 719
wherein Dr. Nasim Hasan Shah, J. as his lordship then was, has dilated upon the above
aspect as follows:---
"This submission undoubtedly has force. In an Islamic polity all the three limbs of the
State namely Executive, Legislature and Judiciary can exercise the delegated functions of
the divine sovereignty within their respective spheres and the reference in the Holy
Qur'an to the obedience of is equally applicable to the members of the judiciary.
In this connection, it is pertinent to note that Maulana Maududi in his work entitled
Tafheemul Qur'an observes; the original is in Urdu and the English rendering thereof
below i-R somewhat as under:---
"The concept of ' Oolilamr' comprises of persons who are in charge of the collective
affairs of the Muslims. They may be Ulema offering guidance on religious matters, or the
political leaders, the civil servants running the administration or Judges deciding disputes
in Courts etc..."
Interpreting the sane verse Maulana Amin Ahsan Islahi in Tadabbar-iQur'an observed:
"Since at the time of Revelation of this verse there was no question of any State or
caliphate, the expression ' Oolilamr' referred to in that context to the prominent leaders of
the Muslims in various fields."
This shows that the judiciary too can exercise the delegated divine sovereignty.
Keeping in view the above Islamic concept of sovereignty, as enunciated inter alia
in the above-cited cases, the appointment of Judges of the superior Courts cannot be
distinguished from the appointments of other Constitutional functionaries under the
Constitution on account of the above reason which is attracted in case of all the
appointments under the Constitution.
Raja Muhammad Akram and Mr. Shahid Hamid have also referred to the case of
Subhesh Sharma v. Union of India AIR 1991 SC 631 in which while dealing with the
term 'consultation' employed in Articles 124, 214 and 217 of the Indian Constitution, it
has been observed that:---
"The Constitutional values cannot be whittled down by calling the appointment of Judges
as an executive act. The appointment is rather the result of collective, Constitutional
process. It is a participatory Constitutional function. It is, perhaps, inappropriate to refer
to any 'power' or 'right' to appoint Judges. It is essentially a discharge of a Constitutional
trust of which certain Constitutional functionaries are collectively repositories. "
The above observations are to be read in the context in which they have been
made. It has not been held by the Indian Supreme Court in the above case that the
appointments of Judges is not an executive act but what has been emphasized is that the
same is not an act, of a single State functionary. But it is a participatory collective
Constitutional functions. In the Judges' Case (supra) in para. 78 at page 403 Al-Jehad
Trust v. Federation of Pakistan PLD ,1996 SC 324, it has been observed by the learned
Chief Justice that--
"now there is no dispute about the fact that appointment of a Judge as contemplated in the
Constitution is an executive action for the reason that a final order is passed in the name
of the President."
Whereas at page 488 of the above I have observed that:
"I am inclined to hold that the act of appointment of a Chief Justice or a Judge in the
superior Courts is an executive act. No doubt this power is vested in the Executive under
the relevant Articles of the Constitution, but the question is, as to how this power is to be
exercised. "
Page No. 72 of 116

In view of the above judgment of this Court, it cannot be contended that the
appointments of the Judges is not an executive act.
I may mention that in order to understand the scope of clause (1) of Article 148, it is
imperative to understand the meaning of the word 'function' as the efforts were made by
some of the learned counsel to distinguish the same from 'duties' and 'powers'. The word
'function' has been defined as under in the following Dictionaries:---
(i) Stroud's Judicial Dictionary, Third Edition, Vo1.2:
"Functions.--(1) Irish Free State Agreement Act, 1922 ' 12 & 13 Geo. 5, c.4): see Great
Southern & Western Railway Co. of Ireland v. R. 1925 A.C.754.
(2) The Stat. Def. of "functions": is usually; 'Functions' include powers and duties, "See,
for example, local Government Act, 1929 19 & 20 Geo. 5, c. 17, s.134; Town and
Country Planning Act. 1947 10 & 11 Geo. 6, c.51, s.119 (1); National Assistance Act,
1948 11 & 12 Geo. 6, c.29, s.64(1); Iron and Steel Act, 1949 12, 13 & 14 Geo. 6,
c.72, s.59(1); but see River Roads Act, 1948 (11 & 12 Geo 6, c. 32), s.36(1)."
(ii) Black's Law Dictionary, Sixth Edition, 1991:
"Function. Derived from Latin 'functus', the past participle of the verb ' fungor' which
means to perform, executc, administer The nature and proper action of anything, activity
appropriate to any business or profession. Resenblum v Anglitn. D.C. Cal. 43 F.Supp.
889, 892. office; duty; fulfilment of a definite end or set of ends by the correct adjustment
of means. The occupation of an office. By the performance of its duties, the officer is said
to fill his function. The proper activities or duties of municipality. Bean v. City of
Knoxville, Tenn. 448m 175 S.W. 2d 954, 955.
(iii) Law Dictionary with Pronunciations, Second Edition, Ballentine
"Function (fungk'shon). Whatever a person is employed or appointed to do; the duty of

an office or officer. See judicial functions; ministerial Functions; quasi judicial
functions".
(iv) New Webster's Dictionary Deluxe Encyclopaedic Edition.

"Function, fungk'shan n. Fr. Fonction, L. functio, L. Fungor, functus, to
perform, to execute. The normal or proper activity of a person, institution, or
thing; the specific duties of a person, asp. in a professional or an official
capacity, as: The function of a Judge is to administer justice. A formal or elaborate
social occasion; math. The association of a particular quantity from one set with
each quantity from another set, such that no change can be made in the former
without producing a corresponding change in the latter; gram. the role of . a
linguistic form in a grammatical construction.-v.i. To perform usual or specified
activity; to serve in a particular capacity.-function. less, a."
(v) Chamber's 20th Century Dictionary, New Edition:
"Function fung(k)' shen n. the doing of -a thing: performance obs.: Activity ohs: an
activity appropriate to any person or thing: duty peculiar to any office: faculty, exercise of
faculty: the peculiar office of anything: a profession obs.: a solemn service: a ceremony:
a social gathering: in math., a variable so connected with another that for any value of the
one 'there is a corresponding value for the other: a correspondence between two sets of
variables such that each member of one set can be related to one particular member of the
other set: an event, etc. dependent on some other factor or factors: the technical term in
physiology for the vital activity of an organ, tissue, or cell: the part played by a linguistic
form in a construction, or by a form or form class in constructions in general linguistics.
-v.i. to perform a function: to act: to operate: to work."
A perusal of the above Dictionaries meaning of the word 'functions' indicate that
the same has very wide connotation. It encompasses not only executive functions but also
judicial functions. The word "Function" is derived from Latin word, "Functus". It inter
alia connotes the normal or proper activity of a person, institution, or the specific duties
Page No. 73 of 116

of a person especially in a profession or official capacity, or duty peculiar to any office. It
includes "powers": and duties.
Since the meaning of the word "function" includes Executive functions, I may
refer to the celebrated treatise, namely, Halsbury's Law of England, 4th Edition relied
upon by Mr.S.M. Zafar in which in para 814 the Author has brought out succinctly
distinction between the legislative, executive and judicial functions as follows:---
"The executive.--Although the legislative, executive and judicial functions are formally
distinct, it is not the case that executive functions are exclusively performed by the
executive, or that the executive does not engage in functions which would normally be
described as legislative or judicial in character.
Executive functions are incapable of comprehensive definition, for they are merely the
residue of functions of Government after legislative and judicial functions have been
taken away."
From the above-quoted extract, it is evident that executive functions are incapable
of comprehensive definition but they can be described as residue of functions of
Government after legislative and judicial functions have been taken out. In other words,
executive functions are very wide in their import and scope.
I am, therefore, of the view that the appointments of Judges of the superior Courts
under Articles 177 and 193 and/or under any other Articles cannot be excluded from the
ambit of functions referred to in clause (1) of Article 48 on the above ground urged by the
above learned counsel.
26. 1 may refer to the above second category i.e. the Articles under which tilt Prime
Minister's advice is required, but it will he binding on the President if it is in accordance
with the law declared by the Apex Court. In this regard, it is pertinent to. point out that
Articles 177 and 193 of the Constitution specify the consultees to whom the President is
supposed to consult. I may mention that at this stage,' it is not necessary to examine the
question as to whether the President is the consultor or the Prime Minister/Cabinet. This
aspect I intend to deal with at a later stage. In the Judges' Case (supra) PLD 1996 SC
page 324 the majority has held that the interpretation of various Articles relating to the
superior judiciary given by this Court in the said case will be binding on the executive
which includes the President, and the Prime Minister. I have already quoted hereinabove
paras. 66, 68 and 69 of my opinion in which the above issue has been dealt with. In the
Judges' Case we have inter alia held as under:---
(i) The words "after consultation" employed inter alia in Articles 177 and 193 ..of the
purposive, consensus-oriented, leaving no room for complaint of arbitrariness or
unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a
High court as to the fitness and suitability of a candidate for Judgeship is entitled to
be accepted in the absence of very sound reasons to be recorded by the
(ii) That if the President/Executive appoints a candidate found to 'tic; unfit and
unsuitable for Judgeship by the Chief Justice of Pakistan, and the Chief Justice of the
High Court concerned, it will not be a proper exercise of power under the relevant
Article of the Constitution.
Since the interpretation of the various Articles by this Court becomes part of the
Constitution and as it becomes the law, it is incumbent on all Executive and Judicial
Authorities throughout Pakistan to act in aid of the Supreme Court by virtue of Article
190. An advice under clause(1) of Article 48 of the Constitution, therefore, cannot be in
violation of the law as declared by this Court. In other words, if the advice tendered by
the Prime Minister in respect of appointments of the Judges of the superior Courts is in
accordance with the judgment of this Court in the Judges' Case, it will be binding on the
President. But if the advice is contrary to the above judgment, the President has several
options which inter alia include the following:--
Page No. 74 of 116

(i) The President may agree with the reasons recorded .by the Prime Minister for
not accepting the recommendations of the Chief Justice or the Chief Justices. In that
event the above reasons will be justiciable as held by this Court in the Judges' Case.
(ii) The President may refer back the matter to the Prime Minister for
reconsideration under the proviso to clause (1) of Article. 48.
(iii) The President may refer the matter for consideration of the Cabinet under clause
(c) of Article 46 of the Constitution.
(iv) The President may convene a meeting and may invite the Prime Minister, the Chief
Justice of Pakistan and the Chief Justice of High Court concerned for resolving the
issue by participatory consultative process, consensus-oriented. Mr. Justice (Retd.)
Muhammad Shahabuddin, former Chief Justice of Pakistan, in his Book under the
title 'Recollections and Reflections' quoted by me in para. 46 at page 483 in my
opinion in the Judges' Case has referred to the above practice.
(v) The President may make a reference to this Court under Article 186 for
soliciting opinion.
However, it was urged by Mr. Iqbal Haider that the President is bound to accept
the Prime Minister's advice even if it is violative of the Constitutions and the judgment in
the Judges' Case. Reliance was placed by him on the following observations from the
treatise titled, "Constitution of India" by Dr. Durga Das Basu Sixth Silver Jubilee Edition,
Vol.E, 1981 Publication, page 273 which read as follows:---
"One of the arguments of the protagonists of President's powers was that the President
being bound by his oath under Article 60, page 234, ante, to 'protect and defend the
Constitution' was entitled to reject a particular advice tendered by his Council of
Ministers which, in his opinion, was likely to undermine the Constitution'. This argument
would no longer be available after the 1976 amendment of Article 74(1), because the
Constitution now expressly requires him to act in accordance with such advice'. If the
Ministers give him an unconstitutional advice, the Ministers shall be answerable to the
House of the People, under Article 75(3). But, if the President rejects a Ministerial
advice, he would himself be liable to the charge of violating the Constitution and
answerable to Parliament in impeachment.
He cannot reject such advice, but may ask the Council of Ministers to reconsider it under
the proviso inserted in 1978 p.272, ante."
I am unable to subscribe to the above broad proposition of law to the effect that
the President is bound to act, on the Prime Minister's advice even when it is in violation
of the certain provisions of the Constitution and the judgment' of the Apex Court. I am
inclined to hold that if there is no ambiguity as to the law declared by the Apex Court, the
President cannot in breach of such law act upon the advice of the Prime Minister as it will
not only be violative of the judgment of the Apex Court but would also be in breach of
the oath of office. The view which I am inclined to take, was also found favour with the
Indian Supreme Court. J.S. Verma, J. in para 482 of his opinion who spoke for himself
and also on behalf of his four learned brethren, namely, Yogeshwar Dayal, G.N.Ray, A.S.
Anand and S.P. Bharucha, JJ. in the case of Supreme Court Advocates-on-Record
Association v. Union of India AIR 1994 SC page 268, relevant at page 432 while dealing
with the corresponding Article i.e. Article 74 of the Indian Constitution observed as
follows:---
"If it were to be held that notwithstanding the requirement of Articles 124(2) and 217(1)
of mandatory consultation with the, Chief Justice of India and Chief Justice of the High
Court, the Council of Ministers has the unfettered- discretion to give contrary advice,
ignoring the views of the Chief Justice of India, arid the President is bound by Article
74(1) to act in accordance with that advice, then Constitutional purpose of introducing the
mandatory requirement of consultation in Articles 124(2) and 217(1) would be frustrated.
It is for this reason, that in the matter of appointments of Judges of the superior judiciary,
Page No. 75 of 116

the interaction and harmonisation of Article 74(1) with Articles 124(2) and 21 t (1) has to
be borne in mind, to serve the Constitutional purpose In short, in the matter of
appointments of Judges of the superior judiciary, the Constitutional requirement is, that to
President is to ac; to accordance with the advice of the Council of Ministers as provided
in Article 74(1); and the advice of the Council of Ministers is to be given iii accordance
with Articles 124(2) and 217(t),, as construed by this Court. In this sphere, Article 74(1)
is circumscribed by the requirement to Articles 124(2) and 217(1), wid all of them have
to be read together. "
27. Adverting to the above third category mentioned by me in para. 24, (i.e. "'The
Articles which specifically provide for the Prime Minister's advice or consultation
independent of clause (1) of Article 48, to which Article, aforesaid Article 48(1) would
not be attracted to"), it may be observed that clause (1) of Article 48 will not be
applicable to the Articles of the Constitution which provide for specific role for the Prime
Minister. In this regard reference may be made to some of the Articles as examples. It
may be stated that under clause (1) of Article 92, the President is requested to appoint
Federal Ministers and Ministers of State: on the advice of the Prime Minister Similarly
under clause (1) of Article 93 the President is to appoint Advisers to the Prime Minister
not more than five on the advice of the Prime Minister. Whereas under clause (1) of
Article 101 the President has been empowered to appoint a Governor for each of the
Province after consultation with the Prime Minister.
Since Articles 92(1) and 93(1) expressly provide that the President shall perform his
functions under the same on the advice of the Prime Minister, second advice of the Prime
Minister under clause (1) of Article 48 is not required. Furthermore, as under clause (1)
of Article 101 the role of the Prime Minister is of a consultee, the same will exclude
applicability of Article 48(1) of the Constitution on the principle that a special/specific
provision shall exclude a general provision.
28. (a) I may now deal with the fourth category, namely, the Articles under which the
President has been expressly given discretion to act. The detail of the Articles is given
hereinabove in para. 22, therefore, need not to be repeated.
The learned counsel for the petitioners and for -the President have vehemently
contended that the above newly-added clause (2) has far-reaching effect as to the powers
of the President, According to them this clause will not only include where the President
has been expressly given discretion in the relevant Articles but will also include where an
implied discretion can be inferred. On the contrary, it vas contended by the learned
counsel opposing the above Constitution petitions that the above clause is applicable only
to those matters in respect of which the relevant Articles of the Constitution have
expressly provided discretion. To re-enforce ~ the above submission they have pointed
out that under the original scheme of the Constitution, the President had not been given
any express discretionary power. However, under the Eighth Amendment the President
has been given express discretionary power in respect of the matters referred to
hereinabove in para. 22.
I am inclined to hold that since above new clause of Article 48(2) providing that
notwithstanding anything contained in clause (1) the President shall act at his discretion
in respect of any matter in respect of which he is empowered by the Constitution to do so,
was added simultaneously with the amendments made in the relevant Articles providing
that the president shall act at-his discretion in respect of the matters covered by the said
Articles, clause (2) of Article 48 is relatable to those Articles only. The same does not
include any Article of the Constitution, if any, relating to an 'implied power or discretion.
it will not be out of context to point out that tinder the original subsection (1) of
section 9 of the Government of India Act; 1935, it was provided that "There shall be a
Council of Ministers not exceeding 10 to number to aid and advice the Governor-General
in the exercise of his functions except so far as be has by or under this Act required to
exercise his functions or any of theta in his discretion", in the above Act the Governor-
General was given discretionary power under the following sections:
Page No. 76 of 116

"Ss.9-(1)(2)(3)-10-(5), 11-(1) 12-(h), 14-(1)(2), 15(4), 17(3)(5), 19(2), 20(1)(2),
22(3), 26(e)(f), 31(1)(3), 32(1), 33(3)(e)(4), 38(1)(a)(c)(d)(2)(3), 40(2), 43(1)(5), 44(1)
(5), 45(1)()), 50(1)(2)(3), 51(5), 52(1)(g), 54(1)(2), 57(1)(3), 58(a)(b), 59(3)(5), 62(2),
63(1)(2), 65(3), 69(1)(e)(r), 74(2), 75, 76(1), 78(4), 84(1)(a)(c)(d)(2), 86(2), 88(1)(b),
89(1)(5), 90(1)(5), 92(2)(3). 93(1)())(5), 94(3), 95(1)(2)(3), 102(1), 104(2), 107(2),
108(1)(b)(c)(2)(b)(c)(d)(i), 110(ii), 111(3), 119(1), 123(3), 125(2), 126(4)(5), 128(2),
129(4)(5), 132(b), 138(2)(ii); 141(1), 152(1), 153, 163(4), 166(3), 167(2)(c), 170(1)(2),
175(1), 182(1)(2), 183(2)(4), 187(1)(3), 189(1), 195(3), 196(1)(2)(b)(8), 199, 202,
206(3), 213(1), 214(1), 222(1)(2)(3), 226(2), 242(4)()), 244(2)(4), 246(1), 251()), 265(1)
(2)(3)(c), 266(3), 267()), 270(1), 271(1), 278(6), 286(2), 295(1), 299(3), 305(1)(2),
308(1), 313(3)(c)(4)(d) and 314(1)."
It may further be observed that subsection (2) of section 8 of the Indian

Independence Act, 1947, provided that except in so far as other provision is made by or in
accordance with law made by the Constituent Assembly of the Dominion under
subsection (1) of above section 8, each of the new Dominions and all the Provinces and
other parts thereof shall be governed as nearly as may be in accordance with the
Government of India Act, 1935, subject to omissions and modifications which may be
made. After the creation of Pakistan the Governor-General's above discretionary powers
were curtailed in a number of matters. The above Act was substituted by 1956
Constitution, which was framed by the Constituent Assembly of Pakistan and which
came into effect on 23-3-1956. Clause (7) of Article 37 of the same already referred to
hereinabove provided treat the President shall act in accordance with the advice of the
Cabinet or appropriate Minister or Minister of State as the case may be except to case,.
where he was empowered by the Constitution to act in his discretion and in respect of the
exercise of his powers under clause (6) which provided that the Prime Minister shall hold
office during the pleasure of the President but the President shall not exercise the powers
under this clause unless he was satisfied that the Prime Minister did not command the
confidence of the majority of the members of the National Assembly.
It may further be mentioned that under 1956 Constitution the President had
discretionary power in the following matters besides above clause (6) of Article 37:---
(i) to appoint a Muslim person as the Prime Minister among the members of the
National Assembly, who in his opinion, was likely to command confidence of the
majority of the members of the National Assembly (Article 37(3)).
(ii) to constitute Election Commission (Article 137(4):
(iii) to constitute a Delimitation Commission for the National and Provincial

Assembles (Article 142(3):
(iv) to appoint the Chairman and other members of the Public Service Commission
in his discretion (Article 186).
Since 1972 Interim Constitution of Pakistan was of Presidential Form, all the
powers were vested in the President. However, on account of the pressure of UDF
(United Democratic Front) and the public, 1973- Constitution adopted Parliamentary
Form of Government. In the above Constitution, the President was not given any
discretionary power. Even for his formal orders as pointed out hereinabove it was
provided under clause (3) of Article 48 that save as otherwise provided in any rules made
under Article 89, the orders of the President shall require for their validity, the
countersignature of the Prime Minister. It may be mentioned that concept of
countersignature was not a new concept introduced through the above clause in Pakistan.
Article 38 of the Fourth French Republic Constitution of 1946 provided that every act of
the President of the Republic must be countersigned by the President of the Council of
Ministers and by a Minister. Similarly in Germany under the West German Constitution,
1949 read with the rules framed thereunder, it has been provided that all official acts of
the President require the countersigning of a Minister save certain specified ones.
The above view which I am inclined to take is supported by the above

legislative/Constitutional history and is in line with the intention of the author of the
Page No. 77 of 116

above amendments, namely, then President General Muhammad Ziaul Haq manifested by
him in his aforesaid address on 12-8-1983 to the Majlis-e-Shoora, namely that he wanted
to make minimum amendments in the Constitution. for incorporating Islamic provisions
and to have discretionary power to dissolve the National Assembly and to make
.appointments of certain Constitutional functionaries, it may be stated that Articles 177
and 193 relating to the appointments of the Judges of the superior Courts remained in the
original form unamended.
(b) -I may also deal with another argument of the learned counsel. It was urged by
M/s. Shahid Hamid, Habib-ul-Wahab-ul-Khairi, Raja Muhammad Akram that the Articles
of the Constitution which postulate "satisfaction of the President, are covered by implied
discretionary power under clause (2) of ,Article 48 as the "satisfaction can be subjective
and not objective". On the other hand, it was urged by the learned counsel opposing the
above petitions that it is not open to this Court to read the words 'implied discretion' in
clause (2) of Article 48. It was further urged by them that since the President is required
to act on the advice of the Prime Minister or the Cabinet by virtue of clause (1) of Article
48, the satisfaction, referred to in the relevant Articles, is of that the Cabinet or the Prime
Minister and not of the President. It may be observed that the above controversy also
cropped up in India. In the case of Bk. Sardari Lal, Appellant v. Union of India and others
Respondents AIR 1971 SC- 1547, the question arose, whether under clause (c) of proviso
of clause (2) of Article 311, which requires satisfaction of the President or the Governor
as the case may be for dispensing with a regular inquiry in respect of misconduct of a
civil servant, the same should be personal satisfaction of the President or the Governor or
could it be of the Minister concerned or the officer concerned under the relevant rules.
The answer was returned by a Bench comprising the learned Chief Justice and four
companion Judges to the effect that it was the personal satisfaction of the President or the
Governor as the case may be by reversing earlier view taken by the Indian Supreme
Court in the case of Moti Ram Deka etc. v. General Manager, N.E.F. Railways AIR 1964
SC 600 and the case of Jayantilal Amrit Lal Shodhan v. F.N. Rana AIR 1964 SC 648: The
above question was again agitated before the Indian Supreme Court in the case of
Shamsher Singh v-. State of Punjab AIR 1974 SC 2192. A Bench comprising the learned
Chief Justice and six companion Judges reviewed the case-law and overruled Bk. Sardari
Lal's case (supra) AIR 1971 SC 1547. It may be pertinent to reproduce paras. 30 and 40
from the opinion of A.N. Ray, C.J. and para. 141 from the opinion of K. Iyer, J. which
read as follows:--
"30. In all cases in which the President or the Governor exercises his functions conferred
on him by or under the Constitution with the aid and advice of his Council of
Ministers he does so by making rules for convenient transaction of the business of
the Government of India or the Government of State respectively or by allocation
among his Ministers of the said business, in accordance with Articles 77(3) and
166(3) respectively. Wherever the Constitution requires the satisfaction of the
President or the Governor for the exercise of any power or function by the President
or the Governor, as the case may be, as. for example in Articles 123, 213, 311(2),
proviso (c), 317, 352(1), 356 and 360 the satisfaction required by the Constitution is
not the personal satisfaction of the President or of the Governor but is the satisfaction
of the President or of the Governor in the Constitutional sense under the Cabinet
system of Government. The reasons are these. It is the satisfaction of the Council of
Ministers on whose aid and advice the President or the Governor generally exercises
all his powers and functions. Neither Article 77(3) nor Article 166(3) provides for
any delegation of power. Both Articles 77(3) and 166(3) provide that the President
under Article 77(3) and the Governor under Article 166(3) shall make rules for the
more convenient transactions of the business of the Government and the allocation of
business among the Ministers of the said business. The rules of business and the
allocation among the Ministers of the said business all indicate that the decision of
any Minister or officer under the rules of business made under these two Articles viz.
Article 77(3) in the case of the President and Article 166(3) in the case of the
Governor of the State is the decision of the President or the Governor respectively.
40. The Rules of Business in the Bejoy Lakshmi Cotton Mills case (1967) 2 SCR 406 -
AIR 1967 SC 1145 '(supra) indicated that the business of
Page No. 78 of 116

the Government was to be transacted in various departments specified in the Schedules.
Land and Land Revenue was allocated as the business of the Department of the Minister
with that 'portfolio. The Minister-incharge had power to make standing order regarding
disposal of cases. This Court held that the decision of any Minister or officer under Rules
of Business is a decision of the President or the Governor respectively. The Governor
means, the Governor aided and advised by the Ministers. Neither Article 77(3) nor Article
166(3) provides for any delegation of power. Although the executive power of the State is
vested in the Governor actually it is carried on by Ministers under Rules of Business
made under Article 166(3). The allocation of business of the Government is the decision
of the President or the Governor on the aid and advice of Ministers.
141. Similarly, the President is entrusted with powers and duties covering a wide range
by the Articles of the Constitution. Indeed, he is the Supreme Commander of the Armed
Forces (Article 53(2), appoints Judges of the Supreme Court and the High Courts and
determines the latter's age when dispute arises, has; power to refer questions for the
Advisory opinion of the Supreme Court (Article 143) and has power to hold that
Government of a State cannot be carried in accordance with the Constitution (Article
356). The Auditor-General, the Attorney General, the Governors and the entire army of
public servants hold office during the pleasure of the President. Bills cannot become law,
even if passed by Parliament, without the assent of the President, recognising and de-
recognising rulers of former native States of India is a power. vested in the President. The
extraordinary powers of legislation by, Ordinances, dispensing with enquiries against
public servants before dismissal declaration of emergency and imposition of President's
rule by proclamation upon States, are vast powers of profound significance. Indeed, even
the power of summoning and proroguing and dissolving the House of the People and
returning Bills passed by the Parliament belongs to him. If only we expand the ratio of
Sardarilal (1971) 3 SCR 461 = AIR 1971 SC 1547 and Jayantilal (1964) 5 SCR 294 - AIR
1964 SC 648 to every function which the various Articles of the Constitution confer on
the President or the Governor, Parliamentary democracy will become a dope and national
elections a numerical exercise in expensive futility. We will be compelled to hold that
there are two parallel authorities exercising powers of governance of the country, as in
the dyarchy days, except that white-hall is substituted by Rashtrapati Bhavan and Baj
Bhawan. The Cabinet will shrink at Union and State levels in political and administrative
authority and, Paving solemn regard to the gamut of his powers and responsibilities, the
Head of State, will be a reincarnation of Her Majesty's Secretary of State for India,
untroubled by even the British Parliament --a little taller in Power than the American
President. Such a distortion by interpretation, it appears to us, would virtually amount to
a subversion of the structure, substance and vitality of our Republic, particularly when we
remember that Governors are but appointed functionaries and the President himself is
elected on a limited indirect basis. As we have already indicated the overwhelming catena
of authorities of this Court have established over the decades that the Cabinet form of
Government and the Parliamentary system have been adopted in India and the contrary
concept must be rejected as incredibly allergic to our political genius, Constitutional
creed and culture."
A perusal of the above-quoted paras. from the above two opinions indicates that
the Indian Supreme Court while construing Articles 123, 213, 311(2) proviso (c), 317,
352(1), 356 and 360 wherein the President or the Governor, as the case may be, is
required to be satisfied, has held that in view of the scheme of the Constitution, it is the
satisfaction of the Council of the Ministers or the Minister concerned under the relevant
rules.
It has been also highlighted that under the various Articles of the Indian
Constitution referred to in the above-quoted para.141 from A.N.Ray, C.J.'s opinion, the
functions of appointments of various Constitutional functionaries including the
appointments of the Judges of the Supreme Court and the High Courts are vested with the
President. But the said power is to be exercised with the aid and advice of the Council of
Ministers, otherwise the Parliamentary democracy will become a dope and national
elections a numerical exercise in expensive futility.
It was contended by M/s. Raja Muhammad Akram, Shahid Hamid and Shahzad
Jehangir (learned Attorney-General) that since India had adopted Westminster
Type/British Parliamentary Form of Government, the judgments of the Courts of Indian's
jurisdiction cannot be relied upon as in Pakistan we have not adopted above type of
Page No. 79 of 116

Parliamentary Government as sovereignty in Pakistan vests in Almighty Allah. In this
regard, it may be pertinent to point out that in the case of Benazir Bhutto v. Federation of
Pakistan reported in PLD 1988 SC p.416 in which certain provisions of Political Party
Act, 1962 inter alia relating to the restrictions on political parties were declared ultra
vires Article 17(2) of the Constitution, Zaffar Hussain Mirza, J. in his opinion at page 616
has held
that "even otherwise, speaking broadly our Constitution is a Federal Constitution based
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. True and fair elections and the existence of
political parties, is an essential adjunct of a functional democratic system of
Government".
It may further be observed that Shafiur Rahman, J. in the case of Muhammad Nawaz
Sharif (supra) at page 603 with approval quoted the following observations from the
judgment of this Court in the case of Mirza Tahir Beg v. Syed Kausar Ali Shah and others
PLD 1976 SC 504:
"Needless to say that the Speaker in a Parliamentary Form of Government holds an office
of highest distinction and has the sole responsibility cast on him of maintaining the
prestige and the dignity of the House and each and every member composing the House.
It is precisely for this reason that the Constitution has ordained that a resignation by a
member is effective only when it is 'addressed' to the Speaker: it was not intended to tie
an idle formality. To relinquish a Parliamentary seat by resignation is a grave and a
solemn act. By and large our political institutions are fashioned on the pattern of those
obtaining in England and it is a settled principle of parliamentary law in England that- a
member of Parliament after he is duly chosen, cannot relinquish his seat by unilaterally
resigning his membership. In order to evade this restriction a member who wishes to
relinquish his seat, accepts office under the Crown which legally vacates his seat. This is
enough to underline the gravity of the matter. (See May's Parliamentary Practice, 18th
End., p.45)."
Mr. Muhammad Afzal Lone, J. made the similar observations at page 757 in
Muhammad Nawaz Sharif's case.
However, I may observe that the simpliciter the fact that a country has British
Parliamentary Form of Government will not be the determining factor, on the question,
whether the President or the Prime Minister has power to appoint the Judges of the
superior Courts but the determining factor will tae the language employed in the relevant
Article-s of the Constitution .
I may mention that in the Judges' Case Mr. Aitzaz Ahsan learned counsel for the
Federation had referred the Constitutions of 71 countries to canvass at the Bar that the
recommendations of the Chief Justices in respect of appointments of Judges are not
binding. In that context, I observed as under in para. 42 of my opinion:
"The question, as to whether the appointment of Judges is an executive act or not, will
depend on the language employed in the relevant provisions of the Constitution in issue. I
have already referred to hereinabove the factum that Mr. Aitzaz Ahsan has furnished
photostat copies of the relevant Articles of the Constitutions of 71 countries, which inter
alia indicate different modes of appointment of Judges, namely:-- '
(i) by election through the mode provided in the relevant Articles of the
Constitution;
(ii) by nomination by the head of the State but appointment with the consent of the
legislative body;
(iii) by the head of the Government on the advice of Judicial Commission/Judicial

services Commission;
(iv) by the head of the Government; and
Page No. 80 of 116

(v) by the head of the State in consultation with the heads of the Judiciary.
Mr. Shahid Hamid has referred the Constitution of Malaysia whereas Mr. Sharifuddin
Pirzada has referred to the Constitution of Malaysia, Republic of Singapore, Republic of
Bangladesh. He has also given synopsis of the Constitutions of Malta Barbados, Jamaica,
Malawi, Mauritius, and Tanzania.
The parity of reasoning adopted in the above-quoted relevant portion of para. 42 of my

opinion from Judges' Case will be equally applicable to the above Constitutions.
M/s. Iqbal Haider and Hamid Khan have heavily relied upon the following observations
made by the various learned Judges in Muhammad Nawaz Sharif's case in respect of
powers/functions vis-a-vis the President and the Prime Minister:
"Nasim Hasan Shah, J:
Unfortunately, this belief that he enjoys some inherent or implied powers besides these
specifically conferred on him under Articles 46, 48(6), 101, 242(1-A) and 243(2)(c) is a
mistaken one. In a Constitution contained in a written document wherein the powers and
duties of the various agencies established by it are formulated with precision, it is the
wording of the Constitution itself that is enforced and applied and this wording can never
be overridden or supplemented by extraneous principles or non-specified enabling
powers not explicitly incorporated in the Constitution itself. In view of the express
provisions of our written Constitution detailing with fullness, the powers and duties of the
various agencies of the Government that it holds in balance there is no room of any
residual or enabling powers inhering in any authority established by it besides those
conferred upon it by specific words."
Shafiur Rahman J.'s observations have already been quoted above in para.28(a).
"Saad Saood Jan J:
It seems difficult to support this contention. To begin with, personal feelings of the
President and the Prime Minister towards each other do not enter into and are in fact
inrrelevant so far as the conduct of the affairs of the Federation is concerned. Our
Constitution clearly demarcates the spheres of activity of the President and the Prime
Minister. Except in matters where the Constitution clearly expresses an intention to the
contrary, the President has no option but to act on the advice of the Cabinet or the Prime
Minister. This is exactly what Article 48(1) of the Constitution states. If he does not
approve of the advice given to him all that he can ask is that the advice should be re-
considered by the Cabinet. But if the same advice is re-tendered to him he is under a duty
to act in accordance therewith. I therefore do not see how the President can invoke his
powers under Article 58(2) (b), ibid, to dissolve the National Assembly if his relations
with the Prime Minister are on an edge."
Aimal Mian J:
But at the same time the Prime Minister's status is neither inferior nor is less important to
that of the President. Except in the matters which are in the sole domain of the President,
the President cannot act without the advice of the Prime Minister, whose advice is
binding on him by virtue of Article 48(1) of the Constitution. The Prime Minister, in fact,
runs the Government and formulates its policies in terms of the Constitution and is
accountable to the Parliament. He represents the will of the people. Prior to the Eighth
Amendment the Prime Minister was all in all, but after the above amendment, the
position has changed considerably."
Muhammad Afzal Lone, J:
The compulsory nature of the principle of advice is quite obvious. The President is bound
to act on the advice of Prime Minister/Cabinet, commending majority in the House,
except where he has discretion or exercises prerogative such as under Article 94 and his
Page No. 81 of 116

satisfaction is secured (Articles 232, 234, 235); if such satistaction is borne out from the
advice tendered to him by the Prime Minister or the Cabinet. Compliance with Article
48(1) by the President is ensured by Articles 42 and 47. Under Article 42 he takes the
oath to perform his functions faithfully in accordance with the Constitution and further to
preserve, protect and .defend the same. If he misConducts or refuses to accept the advice,
he can be impeached under Article 47 for violation of the Constitution."
"Muhammad Rafiq Tarar, J:
The result was that though the President had made an inroad, in the all supremacy of the
Prime Minister, under Article 48, with the phrase, ' in his discretion' and avoided in
certain matters his binding advice, yet he did not succeed in his attempt in respect of
Article 58(2). Thus notwithstanding the words ' in his discretion, an action by the
President, even under Article 58(2), lost exclusiveness and immunity and became
justiciable."
"Saleem Akhtar, J:
In interpreting Article 58(2)(b) the Constitutional background is to be taken into

consideration. The Constitution envisages parliamentary form of Government. Therefore,
if any provision has been inserted in the Constitution afterwards infringing, or impinging
on the democratic and parliamentary system, it is to be construed in a manner that spirit
and form of parliamentary system is not distorted."
"Saiduzzaman Siddiaui, J:
On a careful examination of the above Articles of the Constitution it is quite clear that the
President in discharge of his functions under the Constitution has to act on the advice of
Prime Minister or the Cabinet, except in those cases where he is specifically authorised
by the Constitution to act in his discretion. The discretionary powers of the President
under the Constitution are limited to the extent of making a few appointments to the high
Constitutional offices, besides his power to dissolve the National Assembly (Article 58(2)
(a) and (b), to refer a matter of national importance to referendum (Article 48(6) and to
fix a date for election within 90 days on dissolution of National Assembly and to appoint
a Caretaker Cabinet (Article 48(5) ."
It will not be out of context to point out that Muhammad Nawaz Sharif's case (supra) was
decided by the then learned Chief Justice and the 10 companion Judges. Out of the above
eleven (11) members Bench ten (10) of the learned Judges adopted above reasonings. It
has been held that the President does not have any implied power by virtue of the Eighth
Amendment but he has only those powers which have been specifically conferred on him.
At the same time as I have already pointed out hereinabove that the President is no longer
a titular. But he is entitled to participate actively.
29. I may take up the fifth category mentioned by me hereinabove in para.24 namely,
"that the nature of the functions/duties/rights provided in the Articles is such
which'excludes the application of Article 48(1).
To illustrate above category, I may refer to a few Articles of the Constitution. It
may be pointed out that under clause (c) of Article 46, the President may require the
Prime Minister to submit for the consideration of the cabinet any matter on which a
decision has been taken by the Prime Minister, whereas under proviso 1 to clause (1) of
Article 48, the President may require the Cabinet or as the case may be, the Prime
Minister to reconsider advice tendered under the above provision of the Constitution. It
may further be pointed out that under clause (1) of Article 56 the President may address
either House or both Houses whereas under clause (2) of the above Articles, the President
may send message to either House, whether with respect to a Bill then pending in the
Majlis-e-Shoora (Parliament) or otherwise, and a House to which a message is so sent
shall with all convenient despatch consider any matter required by the message to be
taken into consideration. Similarly, under clause (2) of Article 75 the President has been
empowered to return a Bill other than a Money Bill to Majlis-e-Shoora for
reconsideration.
Page No. 82 of 116

It may be observed that the nature of functions mentioned in the above Articles, is
such that clause (1) of Article 48 of the Constitution is inapplicable. The above Articles
create right in favour of the President and corresponding duty on the part of the Prime
Minister, Cabinet and the Parliament. For exercising the above rights it is inconceivable
that the President should seek advice of the State functionaries against whom such rights
are to be exercised in respect of the legislative and executive functions referred to
hereinabove.
30. At this juncture, it will be appropriate to deal with another important aspect of the
judgment in the Judges' Case. In this regard, it may be pertinent to quote sub-para. (iii) of
para. 69 of the same at page 520 which reads as follows:--
"That the permanent vacancies accruing in the offices of Chief Justices and Judges
normally should be filled in immediately not later than 30 days but a vacancy occurring
before the due date on account of death or for any other reasons, should be filled in
within 90 days on permanent basis. "
A, perusal of the above-quoted sub-para. indicates that a time-frame has been

specified for the appointments of the Judges against the permanent vacancies ie. within
30 days in normal circumstances and 90 days when a vacancy occurs due to death of an
incumbent or for any other reason, before attaining the age of superannuation. The
question arises what will happen if the Prime Minister's Secretariat does not forward the
summary to the President within a reasonable period after having received the same. One
view can be that it can be presumed that the Prime Minister does not have any objection
or reservation to the recommendations made by the learned Chief Justices and, therefore,
one can infer that the Prime Minister has tendered his/her advice in accordance with
Article 48(1). The other possible view can be that an advice to be tendered under the
Constitution cannot be presumed to have been impliedly tendered on account of an act or
omission or inadvertence on the part of. the Prime Minister's Secretariat. I am inclined to
prefer this view. The above view seems to be more in keeping the respect of the high
office of the Prime Minister which it carries because he/she represents the will of the
people. However, I may observe that delay can be averted by working out modalities in
detail in respect of the process of appointments of the Judges of the superior Courts.
Since the dates of retirement of the Judges are known to the quarters concerned, the
process of appointments for filling in vacancies can be initiated much in advance. The
period of 90 days for filling in vacancies which may occur on account of death or for any
other reason seems to be reasonable and there should not be any difficulty in adhering to
the above time-frame.
Copies of the summary can also be submitted to the President's Secretariat

simultaneously with the Prime Minister's Secretariat so that the President's Secretariat
may follow up the above matter and may carry out the initial processing.
. 31. M/s. Shahzad Jehangir, Sharifuddin Pirzada, Shahid Hamid, Habib-ulWahab-ul-

Khairi and Raja Muhammad Akram have urged that the Article 48 of the Constitution is a
general Article, whereas Articles 177 and 193 of the same are special Articles providing a
special procedure for the appointment of Judges in the superior Courts and, therefore, the
latter Articles shall exclude the application of the former Article. Their precise
submission was that since the consultees have been specified in the above two Articles
who do not include the Prime Minister, the Prime Minister's participation stands
excluded.
On the other hand M/s. Iqbal Haider and Hamid Khan have contended that the
above principle is not applicable to the present case. They pointed out that since under
clause (1) of Article 48 the President is to act on the advice of the Prime Minister, it was
not necessary to specify the role of the Prime Minister in Articles 177 and 193 of the
Constitution. According to them Article 48(1) is very much applicable.
To re-enforce the above submission Mr. Shahid Ramid has referred Article 101 of
the Constitution which provides that "there shall be a Governor for each Province, who
shall be appointed by the President (after consultation with the Prime Minister)".
Page No. 83 of 116

According to him if the Framers of the Constitution wanted to include Prime Minister as
a consultee in Articles, 177 and 193 of the Constitution, the same would have been
provided. I may observe that under the R.C.O., it was provided that the President would
appoint a Governor at his discretion. The above refrained Article 101 was not accepted by
the then Prime Minister and the party in power while the Eighth Amendment was under
consideration before the Parliament. A via media was found by substituting the word
'discretion' by the words "after consultation with the Prime Minister". Since the Prime
Minister has been provided a specific role in the function of appointment of a Governor
under Article 101, clause (1) of Article 48 stands excluded. However, this reason is not
available while construing Articles 177 and 199 of the Constitution as the Prime Minister
has not been assigned any role in the above Articles as clause (1) of Article 48 is to apply.
If through the Eighth Amendment the Prime Minister would have been included as one of
the consultees in. the above two Articles, the above parity of reasoning in respect of
Article 101 would have been very much applicable. This was not done and; therefore, the
original position which was obtaining prior to the Eighth Amendment continued to
prevail. The above aspect I have dealt with hereinabove in para. 24 while dilating upon
the third category of Articles of the Constitution. The above two Articles remained
unamended during the Martial Law period and thereafter. They are in their original form.
M/s. Sharifuddin and Shahid Hamid have heavily relied on the case of Union of
India, Appellant v. Jyoti Prakash Mitter, Respondent (AIR 1971 SC 1093) and the case of
Anand Kumar v. Kattail Bhaskaran (1988) 2 Supreme Court Cases 50). In the above first
case the Supreme Court of India while construing clause (3) of Article 270, which
provides that "If any question arises as to the age of a Judge of a High Court, the question
shall be decided. by the President after consultation with the Chief Justice of India and
the decision of the President shall be final" held that since under the above Article, the
President was to consult the Chief Justice of India before deciding the question as to the
age of a Judge of a superior Court and as it was a judicial act, the Government was not
involved in the resolution of the above question. The above view was affirmed by the
Indian Supreme Court in the above subsequent case. In my view, the above cases have no
application to the case in hand for simple reason, that the act of adjudication of age of a
Judge was held to be a judicial act and not an executive act. The above reason cannot be
pressed into service in the case in hand, as it cannot be held that the act of appointment of
a Judge under Articles 177 and 193 is a judicial act.
Raja Muhammad Akram, on the proposition that a special provision in a

Statute/Constitution will exclude a general, had,cited three cases at the bar during the
arguments, namely Inspector-General of Police, Punjab, Lahore v. .Wushtaq Ahmad
Warraich (PhD 1985 SC 159), Neimat Ali Goraya and 7 others -. Jaffar Abbas,
Inspector/Sergeant Traffic (1996 SCMR 826) and Mst.Imam Bibi v Allah Ditta (P1 .D
1989 SC 384). In the first two cases, it was held that Police Service Rules Being the
Special Rules shall prevail over the General Service Rules. Whereas in the third case, this
Court while construing the provisions of the Colonization ;)f Government Lands (Punjab)
Act (V of 1912) also dilated inter alia on the legal maxim "generalia", specialibus non
derogant, and quoted inter alia Maxwell (Eleventh Edition) on Interpretation of Statutes,
ia. which'inter alia it was observed that a general later law does not abrogate an earlier
special one by mere implication. However, in his list of cases, he has mentioned 67 cases
on the above point.
Whereas Mr. Sharifuddin Pirzada has referred to the case of High Court of
Australia namely, (i) Goodwin v. Philips (1909 in Commonwealth Law Reports Volume 7
page 1), (ii) the case reported under the title "In the matter of Reference by the President
of Pakistan under Article 162 of the' late Constitution 1956 PLD 1957 SC (Pak.) 219, (iii)
the case of The State v. Zia-ur-Rahman and others (PLD 1973 SC 49) and (iv) the case of
J.K.C.S. & W. v. State of U.P. (AIR 1961 SC 1170). In the above cases inter alia the
above well-settled legal proposition that a special provision shall prevail over the general
provision has been dilated upon. It may again be observed that the above jurisprudential
principle of interpretation cannot be pressed into service in the instant case.
On the other hand M/s. Iqbal Haider and Hamid Khan have vehemently urged that
while construing a Constitutional provision an established Constitutional convention in
respect thereof, if,any, is to be invoked in aid. According to theta throughout during the
Page No. 84 of 116

Parliamentary Form of Government in Pakistan under the Government of India Act, 1935
as adapted by the Indian Independence Act, 1947 and 1956 and 1973 Constitutions, all
the appointments of the Judges of the, superior Courts had been made on the advice .of
the Prime Minister. This position has not been controverted though I asked Mr. Shahzad
Jehangir learned Attorney-General to make a statement, as to whether any appointment of
a Judge of a superior Court has been made in the past without the advice of the Prime
Minister. He promised to furnish the requisite information but this was not done
apparently for the reason that this is a wellestablished convention that appointments of
the Judges in the superior Courts have always been made on the basis of the advice of the
Prime Minister during the Parliamentary Form of Government in Pakistan. In this regard
reference may be made to Muhammad Munir a former Chief Justice of Pakistan's Book
titled 'Highways and Bye-ways of Life' which was relied upon by Syed Sharifuddin
Pirzada in Judges' Case in which the learned former Chief Justice described his
conversation with Mr. Hussain Shaheed Suhrawardy, who was the Prime Minister of
Pakistan for some time as under:-
"I have said that Mr. Suhrawardy was assertive and conscious of the powers he enjoyed. I
am tempted to mention here an incident of the appointment of a Judge of the East
Pakistan High Court. A new Judge had to be appointed to that Court. I had recommended
a Muslim Lawyer (he was, though I am not sure Mr.Saim who became the President of
Bangladesh after Mujib's assassination). Mr. Suhrawardy however, appointed a Hindu,
Nandi by name, without consulting me. Nandi was the ablest member of the Bar; but his
loyalty to, and citizenship of Pakistan were doubtful. His family lived in Calcutta and he
sent all the money he earned in East Pakistan to his home in Calcutta. He came to Dacca
only when he had to argue a case there and accepted briefs for Dacca in his Calcutta
office. At a dinner at Dacca when I was sitting next to Suhrawardy I told him that I was
waiting for an appeal from Nandi's judgment. Why so, he asked me. I told him that his
appointment having been made without consulting me, it was void and I would hold,
whenever an occasion arose, that his judgment for that reason was void. Suhrawardy
folded his hands before me and said Guruji don't do this please, I can send the pap,rs to
you for a retrospective approval. "
The above conversation lends support to the fact that even under 1956
Constitution Judges of the superior Courts were appointed on the basis of the Prime
Minister's advice, which was required under Article 37(1) of the above Constitution. It
may be .observed that even if we were to hold that the above Constitutional provision
was not mandatory, it cannot be denied that there exists a well-established convention to
the effect that appointments of Judges of the superior Courts have always been made on
the basis of the Prime Minister's advice In the Judges' Case. in my opinion, I have opined
in para. 29 (page 441) as to the effect of a well-established Constitutional convention as
follows:>
"Para. 29. I am inclined to hold that the distinction which was brought out by A.V.
Dicey in 1885 between laws and conventions as to the enforcibility and non-enforcibility
by the Courts is no longer holding the field. With the passage of time, the other eminent
Jurists have not adhered to the above distinction. They have emphasised.the importance
-of the Constitutional conventions for proper operating/functioning of the Constitutions.
Jennings has put it very beautifully by explaining that the Constitutional conventions
provide 'flesh which clothes the dry bones of the law; they make the legal Constitution
work; they keep in touch with the growth of ideas' . The above view has been reiterated
by the other Professors/Jurists of international repute. Even the President of Indian
Constituent Assembly. Dr. Rajendra Prasad, while introducing a bill for the adoption of
Indian Constitution in 1950, pointed out in his speech that 'many things which cannot be
written in a Constitution are done by conventions. Let me hope that we shall show those
capacities and develop those conventions'. The Indian Supreme Court, after reviewing the
treatises on Constitutional law and the caselaw in the case of Supreme Court Advocates-
on-Record Association (supra) has held that there is no distinction between the
"Constitutional law" and an established 'Constitutional convention' and both are binding
in the field of their operation. I am also of the view that the Courts, whilc construing a
Constitutional provision, can press into service an established Constitutional convention
in order to understand the import and the working of the same, if it is not contrary to the
express provision of the Constitution.
Page No. 85 of 116

It is also evident that under Islamic jurisprudence, the conventions which were not
contrary to Holy Qur' an and Sunnah, were recognised from the very inception and they
were given binding effect. In this view of the matter, it will be appropriate to refer to the
relevant conventions, if any, while construing various Constitutional provisions relating
to the Judiciary. "
We can, therefore, press into service the above well-established
Constitutional convention while construing the above Articles 177 and 193 of Q
the Constitution.
32. Syed Iqbal Haider has also relied upon Rule 15-A of the Rules of
Business, 1973 (hereinafter referred to as the Rules), which have been framed
under the Constitution, which reads as follows:-
"15-A. Reference to the President.--(:) Notwithstanding the provisions made in

these rules where in terms of any provision of the Constitution any function is to be
performed or any orders have to be issued by the President or his specific approval is
required, the Division concerned shall incorporate in paragraph to this effect in the
summary entitled as 'Summary for the Prime Minister'. The Prime Minister shall, tender
his advice and submit the case to the President. After the President has seen and approved
the case, it shall be returned to the Prime Minister. The cases to which this sub-rule
applies are enumerated in Schedule V-B.
(2) Notwithstanding the provisions made in these rules, where in terms of any
provisions of the Constitution any function is to be performed or any orders have to be
issued by the President in his discretion, the Division concerned shall submit the case to
the President through the Prime Minister including a self-contained, concise and
objective summary entitled as 'Summary for the President stating the relevant facts and
points for decision prepared on the same lines as prescribed in these rules for a Summary
for the Cabinet, except that only one copy will be required which may not be printed.
This procedure will not, however, be applicable where the case is initiated by the
President himself and decided in consultation with the Prime Minister. The cases to
which this sub-rule applies are enumerated in the Schedule VI.
(3) The cases and papers referred to in Schedule VII shall be submitted to the
President for his information".
A perusal of the above-quoted clause (1) of above rule read with Schedule V-B
indicates that Items 31, 32 and 33 of the above Schedule deal with the appointments of
the Chief Justice and the Judges of the Supreme Court, High Courts and the Federal
Shariat Court.
The above clause (1) of the above rules- demonstrates that Articles in question
relating to the appointments of Judges in the superior Courts have always been
understood and construed as the function which the President performs on the Prime
Minister's advice. The above rule is a legal instrument and, therefore, in the absence of
any inconsistency with any Constitutional provision, the same is to be followed as held
by the Indian Supreme Court in the case of Shamsher Singh (supra), relevant para. from
the opinion of Ray, C.J. I have quoted hereinabove in para. 28(b).
It may further be observed that even the functions which are to be performed by
1the President in his discretion ander the relevant Articles of the Constitution aie routed
through the Prime Minister as is evident from above clause (2) of the above rule read
with Schedule VI, this is so as rightly pointed out by Mr. Shahid Hamid to have cordial
working relationship between the two high functionaries of the State.
33. It will not be out of context to deal with the submission of Mr. S.M.Zafar, namely,
that if we were to test the above question with reference to six modalities of
Constitutional interpretation, namely:
Page No. 86 of 116

(i) Historical arguments.
(ii) Textual arguments.
(iii) Structural arguments.
(iv) Doctrinal arguments.
(v) Ethical (ideological arguments).
(vi) Prudential arguments.
it will become evident that the Prime Minister's advice is necessary for the appointments
of Judges under Articles 177 and 193 of the Constitution. He while dealing with
structural arguments pointed out that the contention that in the Articles in which
consultees other than the Prime Minister/Cabinet are mentioned, the same would exclude
the application of Article 48(1) of the Constitution does not stand to the test of soundness
for the reason that in as many as 12 Articles, relating to the judiciary no consultee is
mentioned and, therefore, it must follow that in respect of the same Prime Minister's
advice will be necessary under Article 48(1). To re-enforce the above submission, he has
referred to Article 176 (relating to the Constitution of the Supreme Court), Article 177(1)
(pertaining to appointment of the Chief Justice of Pakistan), Article 180 (relating to the
appointment of Acting Chief Justice of Pakistan), Article 182(a) and (b) pertaining to the
appointment of ad hoc Judges in the Supreme Court), Article 183(3) (relating to the seat
of Supreme Court of Pakistan), Article 196 (pertaining to the appointment of Acting
Chief Justice in a High Court), Article 200(1) (relating to transfer of a High Court's Judge
to another High Court), Article 200(3) (requiring a High Court's Judge to attend sittings
of another High Court temporarily), Article 203(c)(2) (pertaining to the appointment of
Chief Justice of Federal Shariat Court) and Article 203(c)(4) (relating to the appointments
of Judges in the Federal Shariat Court). In none of the above Articles any consultee is
mentioned.
Mr. S.M.Zaffar's above submission seems to have force as it does not stand to
reason that in respect of two Articles relating to judiciary Prime Minister's advice is not
necessary under Article 48(1) whereas in respect of about 12 Articles, Prime Minister's
advice is required for the reason that no special consultees are mentioned therein. The
above scenario does not fit in with the structural arguments. Mr. S.M. Zafar has referred
to the Book titled "Constitutional Interpretation" by Bobbitt Philip in which the above six
rules of interpretation have been effectively dealt with.
34. I may refer to the submission of the learned counsel that the view that the Prime
Minister's advice is not required, is in accord with the objects of independence and
separation of judiciary, enshrined in the Constitution, whereas Mr. S.M. Zafar has pointed
out that under Article 90 of the Constitution executive authority vests in the President or
in any case he is also a part of the executive, the above contention is not tenable.
However, M/s. Shahzad Jehangir, Shahid Hamid, Habib-ul-Wahab-ulKhairi, Raja

Muhammad Akram and Muhammad Akram Sheikh have emphasised that the President
being the head of the State and being the symbol of unity, does not belong to any political
party, whereas the Prime Minister in a Parliamentary Form of Government represents a
political party and, therefore, if we were to hold that the Prime Minister's advice is not
required by the President for the appointments of Judges of the superior Courts under
Articles 177 and 193, it will contribute towards the independence of judiciary as
generally Prime Minister is subject to political constraints/pressures. His/her advice,
therefore, may be, motivated on account of political consideration. Mr. Muhammad
Akram Shaikh, the President of the Supreme Court of Pakistan Bar had highlighted the
factum that the former Prime Minister resisted the- implementation of the judgment of
this Court in the Judges' Case inasmuch as she acted in violation of the same by
extending the period of service of Rana Bhagwan Das of the Sindh High Court and Javed
Nawaz Khan Gandapur of Peshawar High Court though the learned Chief Justices had
not recommended any extension. He also referred to the Beijing Declaration to which a
Page No. 87 of 116

number of Chief Justices of the various countries including the learned Chief Justice of
Pakistan were parties and in which it has been exphasised that the independence of
judiciary should be ensured.
There is no doubt that a Prime Minister may be motivated to tender a particular

advice in case of appointment of a Judge of a superior Court inter alia for political
consideration. Whereas a President is generally not involved in the party politics, and,
therefore, there is less possibility of the President being motivated for any political
consideration.
However, the above fact alone will not justify to place a construction on Articles
177 and 193 of the Constitution contrary to the scheme of the Constitution which is
founded on a Parliamentary Form of Democracy though under the Eighth Amendment,
certain functions have been vested within the sole domain of the President by specifically
authorising him to perform those functions in his discretion. The detail of which is
already discussed hereinabove ir. nara. 22.
35. I may now take up Mr. Sharifuddin Pirzada's submission that in order to eliminate
political considerations and to ensure independence of judiciary, the Framers of the
Constitution deliberately excluded the Prime Minister's advice under Articles 177 and
193 of the Constitution. In support of his above Justice of Pakistan, two senior most
Judges of the Supreme Court and two most senior Chief Justices of the High Courts. The
above provision was adopted in 1973 Constitution in the form of Article 209. In other
words, status quo obtaining in the Interim Constitution as to the removal of the Judges of
the superior Courts was maintained in 1973 Constitution. It will not be out of context to
quote from the above memoires the following passage on the question of appointments of
the Judges in the superior Courts.„"Judicature:
You propose that the President should, in his discretion, appoint the Chief Justice of
Pakistan. Allow me to point out that, under the Constitution, it is the Prime Minister and
not the President who is responsible to Parliament, and thus the President at all times acts
on the advice of the Prime Minister. Here again, while you profess the desire to follow
the Westminster pattern, you.confuse the issue. In the United Kingdom, for example, all
the high judicial officers are in fact appointed by the Prime Minister. The Lord
Chancellor, the head of the Judiciary, is not only appointed by the Prime Minister but is a
senior member of the Cabinet. He, and in some cases the Home Secretary, Appoints the
Judges of the High Court and lesser Judges."
The above-quoted passage indicates that the then President did not intend to dispense
with the requirement of the Prime Minister's advice in respect of the above appointments.
The above contention also stands negated by the fact that since .the framing of
1973 Constitution, the appointments of the Judges of the superior Courts have always
been made on the basis of the advice of the Prime Minister.
36. Before concluding I may deal with the question; as to whether the President or the
Prime Minister is the consultor under Articles 177 and 193 of the Constitution. In practice
the process for an appointment of a Judge in a superior Court is initiated in a High Court
by its Chief Justice and in case of the Supreme Court by its Chief Justice. After that it is
processed in case of a High Court by the Governor and the Chief Minister concerned.
Then it is sent to the Ministry of Law and Justice, which seeks opinion of the Hon'ble
Chief Justice of Pakistan. After that a summary is forwarded to the Prime Minister, who
records his/her advice. Finally the matter is placed before the President for order. In case
of the Supreme Court the above procedure is followed with the modification that the
Provincial functionaries are not involved and that Ministry of Law and Justice does not
forward the matter to Hon'ble Chief Justice of Pakistan as the latter sends the
recommendation to the above Ministry. Since the President is to pass a final order after
considering the Prime Minister's advice and the recommendations of the consultees
mentioned in Articles 177 and 193 of the Constitution, he is the consultor in terms of the
Constitution. The fact that
Page No. 88 of 116

the Prime Minister is to give advice under Article 48(1) of the Constitution to the
President militates against the view that the Prime Minister is the consultor.
37. The upshot of the above discussions is that my answer to the above question
framed in the above President's reference is that for appointments of Judges of the
superior Courts under Articles 177 and 193 of the Constitution. Article 48(1) relating to
Prime Minister's advice is attracted and the President shall act inn accordance with the
same provided it is in accordance with judgment in the case of ' Al-Jehad Trust. v.
Federation of Pakistan PLD 1996 SC 324.
The above two petitions also stand disposed of in terms of the above answer.
(Sd.)
AJMAL MIAN. J.
SAIDUZZAMAN SIDDIQUI, J.--This judgment will dispose of .the

abovementioned two Constitutional Petitions Nos.23 of 1996 and 54 of 1996 filed by AI-
Jehad Trust,and Zafar Iqbal Chaudhry, Advocate, respectively under Article 184(3) of the
Constitution of Islamic Republic of Pakistan. 1973 (hereinafter to be referred as 'the
Constitution.' only) and Reference No.2 of 1996 filed by the President of Islamic
Republic of Pakistan (hereinafter to be called as 'the Reference' only) under Article 186
of the Constitution. The principal question agitated in all these cases relateq to the
interpretation and scope of Article 48(1) of the Constitution with reference to Articles 177
and 193.
2. I will first take up the Reference. The question of law of public importance referred
by the President to this Court for opinion is formulated in the Reference as follows:--
provisions of Article 48(1) of the Constitution?"
Before expressing any opinion on the above referred legal question, I think it
appropriate to state briefly the background leading to the filing of the Reference before
this Court. This Court in the case of Al-Hehad Trust v. Federation of Pakistan PLD 1996
SC 324, popularly known as the Judges' Case, interpreted various provisions of the
Constitution relating to appointments, transfer and other related matters concerning the
Judges of Superior Courts and laid down with precision, the parameters within which the
executive/President was required to act while dealing with these matters. The decision in
Judges' Case was announced on 20th March, 1996 and in implementation of this decision,
the executive/President was required to take several steps within the time frame indicated
in the judgment. According to facts mentioned in the functions the President shall act in
accordance with the advice of the Prime Minister. - In this matter, the following points
need consideration:--
(i) the appointments to the Constitutional Offices forming part of the judicial organ of
the State, would appear to be a sacred Constitutional duty and not the exercise of an
executive function;
(ii) the appointments of the Judges of the Supreme Court and the High Courts are to be
made by the President after consultation with named Constitutional consultees. It
appears prima facie that the power to make these appointments after such
consultation is within the ambit and scope ,)f Article 48(2).of the Constitution-
(iii) As events since the announcement of the Supreme Court Judgement in the Al-Jehad
Trust case have shown, the prime Constitutional objective of securing the
independence of the judiciary requires that the President should be the effective
appointing authority for Judges forming part of the Judicial organ of the State, in
accordance with the judgment given in that case. "
At this stage, it appears necessary to mention another important fact. The

reference before this Court was filed by the President through a private counsel Mr.
Page No. 89 of 116

Shahid Hamid, Advocate, instead of Attorney-General of Pakistan. The then Attorney-
General, Mr. Qazi Muhammad Jamil, challenged the maintainability of the Reference on
the ground that it was tiled without the advice of the Prime Minister under Article 48(1)
of the Constitution which was necessary. Mr. Iqbal Haider, who succeeded Mr. Qazi
Muhammad Jamil as Attorney-General of Pakistan during the pendency of the Reference,
however, made a statement before this Court on 21-10-1996 that he would not object to
the maintainability of the Reference as the Cabinet accorded ex post facto approval to the
filing of the Reference before this Court. Mr. Iqbal Haider, the :hen Attorney-General
also placed on re-rd the decision of the Cabinet which was to the following effect:-
"The Cabinet has given ex post facto approval to Reference No.2 of 1996, filed by the
President before the Supreme Court of Pakistan, without prejudice to the Cabinet position
that such a reference cannot be filed without the advice of the Prime Minister and that the
Prime Minister cannot advise the President without the approval of the Cabinet.
However, the Cabinet has given ex post facto approval so that the Court could move on to
the question raised in the reference."
4. In view of the above stated position, in my opinion, it is not necessary to go into the
question of maintainability of the Reference. I may also mention here that the facts stated
in the reference were not controverted on behalf of Federal Government and in view of
the position taken by the then learned Attorney-General of Pakistan, Mr. Iqbal Haider, on
behalf of the Prime Minister and the Cabinet regarding maintainability of Reference, the
facts mentioned therein shall be deemed to have been admitted.
5. We have heard Mr. Shahid Hamid for the President, Mr. Habib Wahabul Khairi for
Al-Jetiad Trust, Mr. Raja Muhammad Akram for Zafar lqbal Chaudhry, Mr. Shahzad
Jehangir, Attorney-General for Federation, Mr. VI.L. Shaham, Advocate-General Sindh.
Mr. Shabbar Raza, Additional Advocate-General Puniab, Mr. Shah Jehan fusutzai,
Additional AdvocateGeneral, N.-W.F.P., Mr. Akram Shaikh, Advocate, President of
Supreme Court Bar Association on Court notice and Mr. Iqbal Haider for the former
Prime Minister Benazir Bhutto. Besides hearing the abovementioned learned counsel for
the parties, we also heard Mr. Agha Dilawar Khan and Mr. Shahid Orakzai, the two
gentlemen who claimed to be interested in the controversy as a member of the public. In
the end, the two learned amicus curiae, Mr. S.S. Pirzada and Mr. S.M. Zafar, Senior
Advocates of Supreme Court, appointed by the Court and Mr. Hamid Khan, Advocate,
Vice-Chairman, Pakistan Bar Council as a representative of the Bar Council placed their
views before us with regard to the controversy arising in these cases.
6. Mr. Shahid Hamid, the learned counsel for the President took us through almost all
the Articles of the Constitution whereunder the President exercises some powers under
the Constitution and contended that in discharge of, these powers sometimes the
President performs Constitutional functions while in other cases he fulfils Constitutional
obligations and duties imposed on him by the Constitution and the oath he took under the
Constitution. Elaborating his contention, the learned counsel argued that the functions
and duties of the President can be classified under seven different categories. According
to learned counsel the first category comprises of those acts which the President is
specifically authorised under the Constitution to perform in his discretion. In respect of
acts falling under this category, according to Mr. Shahid Hamid, neither the advice of
Prime Minister nor of the Cabinet is necessary. The second category according to learned
counsel, relates to those acts of the President under the Constitution which though not
specifically described in the relevant Articles as falling within his discretion but on
account of the nature of the duty, or function to he Performed by the President, they
necessarily fall in the category of acts which the President may perform either in his
absolute or qualified discretion. The 3rd category, according to learned counsel, embraces
rhose functions of the President which he performs in accordance with the advice of the
Prime Minister or the Cabinet. The fourth category, according to learned counsel, also
relates to acts and functions of the President, performance whereof, from the language of
the relevant Articles of Constitution, appears to be subject to Article 48(1) of the
Constitution. The fifth category, according to. learned counsel, relates to the acts which
the President performs under the advice of the Prime Minister or the Cabinet but in the
performance of these acts, the President must satisfy himself or form an opinion that a
Constitutional basis exists for exercise of power by him. The sixth category, according to
Page No. 90 of 116

Mr. Shahid Hamid, relates to acts which the President performs under the Constitution
after consultation with specified Constitutional consultees. The last and the seventh
category, according to Mr. Shahid Hamid, the learned counsel for the President, relates to
acts of the President which he performs under the Constitution as a sacred duty and trust
through consultation and participatory process under Articles 177, 181, 193 and 197 of
the Constitution. According to the learned counsel, the duty performed by the President
under Articles 177, 181, 193 and 197 of the Constitution cannot be held to be subject to
the advice of Prime Minister or the Cabinet as envisaged by Article 48(1) ibid. It is
contended that such an interpretation runs contrary to the concept of independence of
judiciary and its separation from executive which is the driving spirit of the Constitution.
The learned counsel for the President accordingly, contended that in order to preserve, the
independent character of judiciary and to keep the institution of judiciary free from
political influences, it is necessary that power of appointment of Judges in the superior
judiciary is exercised by the President who has no political agenda to execute after his
induction in the high office of Presidency and is more representative in nature as
compared to the Prime Minister, and he represents the unity of the Federation, according
to Constitutional provisions. Mr. Wahabul Khairi and Mr. Raja Muhammad Akram, the
learned counsel for the petitioner in Petitions Nos.23 and 54 of 1996 supported the
contention of Mr. Shahid Hamid.
7. Mr. Iqbal Haider, the learned counsel for the former Prime Minister Benazir Bhutto,
contested the above contentions and vehemently argued that by interpreting Articles 177,
181, 193 and 197 of the Constitution in the manner suggested by the learned counsel for
the President and the two petitioners, we will change the basic character of the
Constitution which is based on parliamentary system of Government on the pattern of
Westminster style, to a Presidential form of Government. It is contended by Mr. Iqbal
Haider, that in the form of Government based on parliamentary system, the Prime
Minister is the Chief Executive of the Government and is answerable for all his acts to
the Parliament. The learned counsel contended that the President, who is indirectly
elected under the Constitution and is neither answerable to the Parliament nor to anyone
else, cannot be vested with the power to appoint holders of such high offices under the
Constitution to the exclusion of, the Prime Minister who is directly elected by the people.
Mr. Iqbal Haider went on to argue that in spite of inroads made on the powers of Prime
Minister through Constitution (Eighth Amendment) Act, 1985, by vesting some
discretionary powers on the President, the basic character of the Constitution continues to
be parliamentary democracy on the model of Westminster as held by this Court in the
case of Ahmed Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646 and Mian
Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473. According to
learned (counsel, so long the features of the Constitution which envisaged the
parliamentary system of Government are retained, the Prime Minister cannot be deprived
of his role as the Chief Executive and head of the Government and, therefore, the
President while making appointments in higher echelon of judiciary will be bound by the
advice of the Prime Minister or Cabinet tendered under Article 48(1) of the Constitution.
Replying to the argument that in Articles 177, 181, 193 and 198, the Prime Minister does
not figure anywhere, Mr. IqbW Haider forcefully argued that in our Constitutional
scheme wherever the satisfaction or opinion of President is mentioned it refers to the
satisfaction and opinion of Prime Minister and Cabinet, as in performance of all such
functions the President is to act on the advice of Prime Minister or the Cabinet as
provided in Article 48(1) ibid. In support of his argument, Mr. Iqbal Haider relied on the
observations of Indian Supreme Court in the case of Samsher Singh v. State of Punjab
AIR 1974 SC 2192, wherein the Indian Supreme Court while interpreting the provisions
of Article 74(1) of Indian Constitution made the following observations:-- .
"148. In the light of the scheme of the Constitution we have already referred to, it is
doubtful whether such an interpretation as to the personal satisfaction of the President is
correct. We are of the view that the President means,, for all practical purposes, the
Minister or the Council of Ministers as the case may be, and his opinion, satisfaction or
decision is Constitutionally secured when his Ministers arrive at such opinion,
satisfaction or decision."
Mr. Iqbal Haider further contended that in spite of amendments of several Articles
of Constitution through Constitutional (Eighth Amendment) Act, 1985, no attempt was
Page No. 91 of 116

made to amend Articles 177 and 193 of the Constitution which are retained in their
original form till today and as such there exists no justification for construing or
interpreting these articles in a manner which would suggest a departure from the previous
construction of these provisions.
8. Mr. Iqbal Haider also. contended that a similar controversy had arisen in 1989 when
Mr. Ghulam Ishaq Khan was holding the office of President and Mohtarma Benazir
Bhutto was the Prime Minister, but the controversy was resolved through a mutually
agreed farmula which was sanctioned by this Court as is evident from the judgment
reported as Federal Government of Pakistan v. M.D. Tahir, Advocate 1990 SCMR 189.
Mr. Iqbal Haider, the. learned counsel, relying on the order of this Court in M.D. Tahir,
Advocate's case supra, contended that on the face of existence of this agreed formula
between the two highest functionaries of the Constitution which also bore the seal of this
Court, the issue regarding exercise of power by the President to the exclusion of Prime
Minister cannot be reopened and reagitated. Mr. Iqbal Haider further contended that in
any case, after the decision of this Court in the Judges' Case, this controversy is no more
a live issue.
9. Mr. Shahzad Jehangir, the learned Attorney-General on behalf of Federal

Government contended that the position of the President under the Constitution as
originally enacted, was undoubtedly that of a mere figure head but after amendment of
the Constitution through Constitutional (Eighth Amendment) Act, 1985 (hereinafter to
be called as the Eighth Amendment) he acquired effective role under the Constitution.
The learned Attorney-General referred to various Articles of the Constitution
whereunder the President is now empowered to act in his discretion without the advice
of the President. The learned Attorney-General argued that prior to the Eighth
Amendment, under Article 90 of the Constitution the Prime Minister was the Chief
Executive of the Federation and the Federal Government consisted of the Prime
Minister and the Federal Ministers but this position was radically changed after the
Eighth Amendment as under the newly substituted Article 90 in the Constitution, the
executive authority of the Federation now vests with the President which he exercises
either directly or through officers subordinate to him in accordance with the
Constitution. The learned Attorney-General contended that in matters of day to day
functioning of the Government, the President acts on the advice of the Prime Minister.
However, in the performance of a duty imposed upon the President under the
Constitution, the President is not bound by the advice of the Prime Minister.
According to learned Attorney-General the exercise of power under Articles 177 and
193 of the Constitution by the President is a Constitutional duty which is to be
performed strictly in accordance with the provisions of these Articles and therefore,
Article 48(1) of the Constitution is not attracted in such situation. The learned
Attorney-General further contended that keeping in view the provisions of Article
175(3) of the Constitution which contemplates complete separation of judiciary from
the executive and the concept of independence of judiciary enshrined in Article 2A of
the Constitution, it is necessary that power to appoint Judges of the superior Courts is
exercised by the President who is not a political personality under the Constitution and
represents the unity of Federation.
10. The learned Additional Advocate-General, Punjab, Mr. Shabbar Raza, Mr. M.L.
Shahani, the learned Advocate-General, Sindh and Mr. Shah Jehan Yousafzai, Additional
Advocate-General of N.-W.F.P. adopted the arguments of learned Attorney-General.
11. Mr. Akram Shaikh, Advocate, the learned President of Supreme Court Bar
Association contended that appointments of the Judges of the superior Courts do not fall
within the functions of the Government so as to attract the provisions of advice contained
in Article 48(1) of the Constitution. The learned counsel contended that the power to
appoint Judges of the superior Courts under the Constitution does not belong to political
arena and therefore, its exercise by the President, who does not belong to any political
party, will keep the institution of judiciary away from political influences. The learned
counsel further contended that the past experience shows that the exercise of this power
by the President under the advice of the Prime Minister had led to the politicising of the
judiciary and, therefore, to preserve the independent character of judiciary, it is necessary
Page No. 92 of 116

that the power to appoint Judges of superior Courts is exercised by the President without
the advice of Prime Minister.
12. Mr. S.S. Pirzada, the learned Senior Advocate Supreme Court and amicus curiae,
in his usual lucid and persuasive style took us through the conventions followed by the.
British Rulers of the Sub-continent in preindependence period in making appointments to
the higher judiciary, the historical background of Constitution making in India and
Pakistan in postindependence period with special reference to the Constitutional
provisions relating to the appointments of Judges in superior judiciary, and the latest
trend in the United Kingdom reflected in the report of the Committee of the House o1
Commons submitted on 5-6-1996 favouring exclusion of the role of Prime Minister in the
process of appointment of Judges of superior Courts. Mr. Pirzada contended that the
conventions followed by the British Rulers in the Sub-continent in pre-independence
period in the appointment of Judges o1 superior Courts provide a safe guide for
interpretation of the provisions of out Constitution relating to the appointments of Judges
of the superior Courts. Mr. Pirzada pointed out that the conventions in this behalf set by
the Britishes were continued to be followed in India in post-independence period up to 4-
11-1947 which were drastically changed thereafter but at the end of the day the Indian
Supreme Court had to rule in the case of S.C. Advocates-on-Record Association v. Union
of India AIR 1994 SC 268, that in the matter of appointment of Judges of the superior
judiciary the President though acts on the advice of the Council of Ministers but such
advice must be in accordance with the provisions of Articles 124(2) and 217(1) of the
Indian Constitution as construed by the Indian Supreme Court in S.C. Advocates-on-
Record's case, to keep the institution of judiciary independent and free from political
influences.
While referring to the historical background of Constitution-making in the newly

created States of India and Pakistan in post-independence period, Mr. Pirzada referred to
the report compiled by Rt. Honourable Sir Tej Bahadur Sapru, Rt. Honourable Mr. R.
Jayakar, Honourable Sir N. Gopalaswami Ayyanger and Kunwar Sir Jagdish Parashad,
popularly known as "The Sapru Committee Report", and contended that this report
contained valuable suggestions and recommendations concerning the future political
Government, Legislature and the judiciary in the new Indian Republic. Mr. Pirzada
contended though the recommendations contained in the Sapru's Committee Report
regarding future judiciary of India were not accepted by the framers of Indian
Constitution but in Pakistan the Constitution-makers substantially adopted Sapru
Committee's Report while incorporating the provisions regarding appointment of Judges
in the superior judiciary in the Constitutions of 1956, 1962 and 1973. Mr. Pirzada
contended that the main theme of Sapru Committee's Report regarding judicature was, its
independent character and its separation from the executive. The learned amicus curiae
specifically relied on the following passages from Sapru Committee's Report to highlight
his point of view:--
"259. In our recommendation No. 13 we first recommend that there shall be a Supreme
Court for the Union and a High Court in each of the units. Then in the second clause
we recommend that the strength of judges in each of these Courts at the inception of
the Union as well as ,the salaries to be paid to them shall be fixed in the Constitution
Act and no modification in either shall be made except on the recommendation of the
High Court, the Government concerned and the Supreme Court, and with the
sanction of the head of the State, provided, however, that the salary of no judge shall
be varied to his disadvantage during his term of office. In sub-clause (3) we
recommend:---
"(a) The Chief Justice of India shall be appointed by the Head'of the State and the other
Judges of the Supreme Court shall be appointed by the Head of the State in
consultation with the Chief Justice of India.
(b) The Chief Justice of a High Court shall be appointed by the Head of the State in
consultation with the Head of the Unit and the Chief Justice of India.
Page No. 93 of 116

(c) Other Judges of a High Court shall be appointed by the Head of the State in
consultation with the Head of the Unit, the Chief Justice of the High Court concerned
and the Chief Justice of India.
261. Our main object in making these recommendations is to secure the absolute
independence of the High Court and to put them above party polities or influences. .
Without some such safeguards, it is not impossible that a Provincial Government may
under political pressure affect prejudicially the strength of the High Court within its
jurisdiction or the salary of its Judges. If it is urged that the High Court and the
Government, concerned will be more or less interested parties in the matter, the
intervention of the Supreme Court and of the Head of the State would rule out all
possibility of the exercise of political or party influences. The imposition of .these
conditions, may, on a superficial view, seem to be inconsistent with the theoretical
autonomy of the Provinces, but, in our opinion, the independence of the High Court and
of the judiciary generally is of supreme importance for the satisfactory working of the
Constitution and nothing can be more detrimental to the well being of a Province or
calculated to undermine public confidence than the possibility of executive interference
with the strength and independence of the highest Tribunal of the Province. "
13, Replying the argument of Mr. Iqbal Haider, the learned counsel for the former Prime
Minister, that under the Parliamentary system of Government, the Prime Minister and the
Cabinet is answerable to the Parliament for all his acts, and therefore, the advice of Prime
Minister is necessary in the appointment of Judges, Mr. Pirzada stated that mere fact that
the Prime Minister is answerable for all his acts in a parliamentary -form of Government
to the Parliament, is no ground to vest the Prime Minister with the power of appointment
of the Judges of the superior judiciary. The learned amicus curiae contended that exercise
of a particular power by the Prime Minister or the President under the Constitution, is not
a factor which alone determines whether the system of Government is Parliamentary or
Presidential in form. Mr. Pirzada referred the provisions relating to appointment of the
Judges of the superior Courts under tile Constitutions of Malaysia, Republic of Singapore
and Peoples' Republic of Bangladesh and several other. countries to demonstrate that
though the system of Government in vogue in these countries is parliamentary democracy
but the power is exercised in different manner by the President or the Prime Minister
under these Constitutions.
14. Mr. S.S. Pirzada.contended that after inclusion of Article 2A in the Constitution
the concept of independence of judiciary which was already guaranteed under the
Constitution, has acquired a greater predominance and to give effect to this predominant
will of Constitution, it is necessary to interpret Articles 177 and 193 of the Constitution in
a manner which secures the independence of judiciary and its separation from the
executive fully.
Mr. Pirzada contended that Article 48(1) of the Constitution is a provision of

general application which cannot control the provision relating to appointment of Judges
contained in Articles 177 and 193 of the Constitution which is a self-contained special
provision. Mr. Pirzada argued that while appointing Judges of the superior Courts under
Articles 177 and 193 of the Constitution, the President exercises his power in
performance of his Constitutional duty after consulting the consultees mentioned in the
provision and in discharge of this duty he is not bound by the advice of Prime Minister. In
support of his contention that where a statute contains general provisions as well as
special provisions, the general provisions stand displaced to the extent of applicability of
the special provisions. Mr. Pirzada relied on the following cases:---
(1) State v. Ziaur Rehman PLD 1973 SC 49.
(2) J.K.C. S&W Mills v. State of U.P. AIR 1961 SC 1170.
15. Mr. Hamid Khan, the learned Vice-Chairman, Pakistan Bar Council, presented
views of the apex body of the lawyers on the controversies involved in the above cases.
The learned counsel contended that the Constitution as originally framed in 1973
contemplated a parliamentary system of Government but the provisions contained therein
concentrated all the executive powers of the Government in, the hands of Prime Minister
Page No. 94 of 116

who was the Chief Executive of the Federation and Head of the Federal Government. The
President under the Constitution of 1973 enjoyed no powers at all and acted merely as a
figure head and acted only on the advice of the Prime Minister. Through the 8th
Amendment, Mr. Hamid Khan contended, some discretionary powers were conferred on
the President which he could exercise without advice of the Prime Minister, but the role
of Prime Minister continued to remain predominant under the Constitution. Apart from
the powers which the President was authorised to exercise under the Constitution, after
the 8th Amendment, in his discretion, in all other matters the President could only act on
the advice of the Prime Minister. The learned counsel, accordingly, contended that in
spite of changes introduced in the Constitution through 8th Amendment, the spirit of the
Constitution continued to remain Parliamentary and Federal in character. Mr. Hamid
Khan contended that the changes introduced in the Constitution of 1973 through the 8th
Amendment, brought the Constitution nearer in spirit to the Constitution of 1956. To
support his contention that in spite of amendment made in the Constitution through 8th
Amendment, the spirit of the Constitution remained parliamentary in character, the
learned counsel referred to the observations made by the learned Judges `in the case of
Muhammad Nawaz Sharif v. Federation of Pakistan (supra). On the basis of his above
submissions, Mr. Hamid Khan argued that the appointment of Judges in the superior
judiciary being an executive act, could only be made by the President under Articles 177
and 193 of the Constitution on the advice of Prime Minister.
16. Mr. S.M. Zafar the other amicus curiae in the cases, was the last learned counsel to
address the Court in the sequence. Mr. S.M. Zafar contended that the Courts while
interpreting the Constitution are guided by six principles namely, (a) the historical
argument, (b) the textual argument, (c) the structural argument, (d) the doctrinal
argument, (e) ethical argument or ideological argument and (f) the prudential argument.
Explaining his above formulations the learned amicus curiae contended that the historical
argument requires discovery of the original intention of the framers of the Constitution.
The structural argument applies when the Constitution has different structural scheme
within it. In such a case, the interpretation adopted should not mutilate or destroy the
structural scheme of the Constitution. While applying the textual argument, the learned
amicus contended, the Court determines whether the interpretation of the particular text
of the Constitution holds good for the rest of the Constitution also. The doctrinal
argument notices the existing interpretation by the Courts and jurists of the particular or
similar Constitutional provisions. The ethical argument finds its roots in the ethos of
nations which are engrained in some high principles or grund norm. The prudential
argument according to learned amicus, proceeds on that interpretation which creates
balance between various provisions of the Constitution.
17. The learned amicus contended that interpretation of Articles 48, 177
and 193 of the Constitution keeping in view aforementioned principles, suggests that
there was no change in the original intention behind Articles 177 and 193 of the
Constitution in spite of textual amendment in Article 48 ibid, through the 8th
Amendment. The learned amicus contended that Article 48 in its amended form
continued to be applicable to the provisions of Articles 177 and 193 of the Constitution
and no such inconsistency existed between Article 48 on the one hand and Articles 177
and 193 on the other hand so that the two cannot stand together. The learned amicus,
contended that if Articles 177 and 193 of the Constitution are interpreted on the basis that
the consultees are specifically mentioned in these Articles, therefore, Article 48(1) is
inapplicable, it will lead to the application of two different principles of interpretation to
the provisions within the same structure of the Constitution as there are several Articles
in Part VII of the Constitution relating to judicature wherein the consultees are not
mentioned, meaning thereby that Article 48(1) will be attracted in these cases. The
learned amicus further contended that the fact that 8th Amendment introduced no changes
in language of Articles 177 and 193 of the Constitution goes to show that the framers of
the Constitution intended no change in the scheme of these Articles. The learned amicus
argued that by interpreting the provisions of Articles 177 and 193 subject to the
provisions of Article 48(1) ibid, the independence of judiciary is neither affected nor
curtailed especially after the pronouncement of this Court in the case of AI-Jehad Trust v.
Federation of Pakistan (supra) which has curtailed the executive discretion and has set the
Page No. 95 of 116

parameters within which the executive has to act in relation to the appointments in the
superior judiciary.
1.8. Before considering the above contentions I would. like to dispose of one of the
contentions raised by Mr. Iqbal Haider that after the decision of this Court in the case of
Federation of Pakistan v. M.D. Tahir, Advocate, and subsequent decision in the case of
Al-Jehad Trust v. Federation of Pakistan the controversy raised in the presidential
reference and in the two petitions is no more a live issue on which a pronouncement of
this Court is necessary.-
19. The decision in the case of M.D. Tahir, Advocate,, supra, relied by Mr. Iqbal
Haider arose out of the judgment of the Lahore High Court passed in Writ Petition
No.589 of 1989 filed by M.D. Tahir, Advocate to challenge the appointments of about 12
Judges of Lahore High Court which were made by the President without the advice of
Prime Minister. The learned Judges of the High Court while dismissing the above writ
petition summarily, held that the executive authority of the Prime Minister under Article
48 of the Constitution did not extend to the appointments of High Court Judges as Article
193 ibid makes no mention of the Prime Minister among the consultees. It was also held
in that case by the learned Judges of Lahore High Court that the provisions relating to the
appointment of Judges contained in Article 193 ibid laid down a special procedure and
therefore, to, that extent the provisions of Article 48(1; which was general in nature did
not apply. The Federation filed an appeal before this Court against the above decision of
Lahore. High Court. It appears that during the pendency of the above appeal a comprmise
was reached between the President Ghulam Ishaq Khan (who was the then President of
Pakistan) and Mohtarama Benazir Bhutto (who was the then Prime Minister of Pakistan)
and as a result of this compromise between the two high functionaries of the Constitution
the Court allowed disposal of the appeal in terms of the following order:--
"The teamed Deputy Attorney-General on instructions from the Secretary, Ministry o€

Law, Justice and Provincial Coordination, states that the Federal Government will be
satisfied i€ para.5 of the impugned order, dated 21st December, 1988, of the Lahore High
Court is excised and this appeal be disposed of accordingly. The offending portion in
para. 5 is as follows:
In any case the Prime Minister does not find mention in Article 193, amongst the
persons, after consultation with whom the .President is required to appoint the Judges. It
is Article 48(1) which ordains that in exercise of his functions the President shall act in
accordance with the advice of the cabinet or the Prime Minister. But Article 193
specifically deals with the appointments of the High Court Judges and it is wellsettled
that where in a Statute there are two provisions, one of which is of specific character and
general one. This principle has also been exhaustively. discussed in the Government of
Punjab v. Naila Begum PLD 1987 Lah. 336 to which one of us (Lone, J:) was a party'.
Against which exception was taken by the Federal Government on the ground that the
required notice under Order 27-A, Rule 1,- was not given to the Attorney-General before
determining the Constitutional question.
Learned °counsel for the respondent No.2 Mr. Sharif-ud-Din Pirzada stated that he had no
objection to the disposal of the appeal in the above manner as it seemed to him to be a
realistic and.practical approach, Respondent No. 1, however, objected to the disposal of
the appeal on this short ground, but as he had not filed any appeal against the order, it
became final as against him. As such we do not find any substance in his contention,
Accordingly, the offending portion be excised, but the judgment in all other respects
stands. There will be no order as to costs. "
Two learned members of the Bench, (Abdul Kadir Shaikh and Zafar Hussain Mirza, JJ.),
which decided the case of Federal Government. of Pakistan v. M.D. I Tahir, Advocate,
supra, however, had reservations to the . disposal of the
appeal in the manner cited above and they recorded their opinions as follows:--
Page No. 96 of 116

"ABDUL KADIR SHAIKH, J.--- I feel that since it is the primary and sacred function
of this Court to resolve all Constitutional controversies relating to the interpretation of the
Constitution, the appeal should be heard and decided on the questions of law of
fundamental public importance on which leave to appeal was granted, namely,
interpretations of Constitution concerning ' the function of the Parliamentary Democracy
in our country' so that an authoritative decision of this Court be rendered, for, if left for
decision in the future, the consequences will be awkward, inconvenient and not
conducive to proper administration of justice as these would subvert the legitimacy of the
very appointments of the Judges themselves. If left undecided, these issues are also
bound to cause confusion among the litigants in view of uncertainty with regard to the
validity of the judgments and decisions rendered by the Judges whose appointments in
the office as Judges would be simultaneously the subject-matter of litigation. perhaps in
the same Courts. Such uncertainty would have also the consequent odium attached to
stash a situation. Certain consequences are bound to be irrevocable, for example, already
expired jail sentences passed under the judgments recorded by the Judges of the superior
Courts whose appointments may be held to be illegal and without lawful autbority on the
basis of the decision on the issues which are to be decided in this appeal.. '
However, since overwhelming majority of the Judges is of the view that the appeal
should be disposed of in the terms of the statements made by the learned counsel for, the
parties, I reluctantly agree to that mode of disposal, but at the same time cannot help
recording this note.
ZAFFAR HUSSAIN MIRZA, J.---I am of the view that consistent with the rule of
practice and the nature of the jurisdiction vesting in this Court under Constitution vide
Article 185 of the Constitution, whereby it is the Constitutional duty of this Court to
decide questions affecting the interpretation of the Constitution, particularly when such
questions have been properly raised in this appeal, this Court should normally have
determined the questions so raised. Also it has been authoritatively held that, consent of
parties, or adjusting the controversy according to a consensus, cannot deter this Court
from discharging its obligation, to express their final opinion and set at rest any
misgivings with regard to the Constitutional issues.
However, since the Federal Government who had raised the aforesaid questions is not
willing to proceed further for reasons not disclosed to us and the majority of my brothers
on the Bench agree that no further hearing of this matter be continued,. I would like to go
alongwith the majority in the circumstances.
I, therefore, agree that this appeal may be disposed of as done in the main order."
It is, therefore, quite clear from the order passed by this Court in the case of M.D.
Taktir, .supra, as well as reservations expressed by the two learned members of that
Bench that no decision was given by this Court on the question of law arising before it.
Disposal of a case as a result of compromise between the parties without adverting to the
legal issues cannot be treated as enunciation of law by this Court within the meaning of
Article 189 of the Constitution. Similarly, in the case of AI-Jehad Trust (supra) Mr. S.S.
Pirzada, who was one of the amicus curiae did raise a contention that in matters of
appointment of Judges of superior Courts, 'he advice of Prime Minister under Article
48(1) is not necessary. This contention was duly noted in the judgment of Ajmal Mian, 1
in paragraph 66 and was disposed of as follows:--
"66. Before parting with the above discussion, I may observe that Mr. Sharifuddin
Pirzada has contended that the appointment of Judges in the superior Courts by the
President is not an act of the nature which needs advice of the Prime Minister under
Article 48 of the Constitution. According to him, the relevant Articles of the
Constitution confer power on the President to appoint the Judges of the superior
Courts after consulting ,the consultees mentioned in the relevant Articles, which ,do
not include the Prime Minister. His further submission was that since the special
Articles provide specifically the consultees who are to be consulted, this will negate
Article 48 of the Constitution and thus the Prime Minister's advice is not required. In
support of his submission, he has referred to certain cases and other material.
Page No. 97 of 116

Mr. Khairi and Mr. Raja Muhammad Akram, learned counsel for the newly added
appellants Nos.3 to 7, had also submitted arguments in line with Mr. Sharifuddin
Pirzada's above arguments.
67. On the other hand, Mr. Qazi Muhammad Jamil, learned AttorneyGeneral, and Mr.
Aitzaz Ahsan, learned counsel for the Federation, have submitted that the
appointment of a Judge in a superior Court is an . executive act and the executive
includes the President and the Prime Minister. According to them, it is not necessary
to go into the above question.
68. Since the interpretation of various Articles given by this Court hereinabove will be
binding on the executive, as such it is not necessary to go into the above question in
this case."
I7. The above passage from the judgment of this `curt in l-Teha. Trust case clearly shows
that this Court did not find it necessary to go into the question of applicability of
Article 48(1) in that case. Therefore, the decision in the AlJehad Trust case also
did not amount to a decision of this Court on a question of law under Article 189
of the Constitution so as to bar 'a decision on the present controversy. ' . - ,
1 am, therefore, of the view that neither the decision of this Court in the case of
Federation of Pakistan v. M.D Tahir, Advocate, nor in the case of Al Jehad Trust v.
Federation of Pakistan (supra) come in the way of adjudication of the Presidential
Reference or the two Constitutional petitions in so far they raise the question of
interpretation of Articles 4$, 177 and 193 of the Constitution.
20. I now proceed to consider various contentions raised in the above cases. Mr.
Shahid Hamid, the learned counsel for the President took us through almost all the
Articles of the Constitution, whereundei: the President exercises some power. I, however,
do not propose to undertake examination of all these Articles here as this exercise is not
only unnecessary but also'beyond the scope of the present proceedings. I have already
mentioned earlier all the contentions in' details raised in these cases. To summarise these
contentions, Mr. Shahid Hatnid, Mr. Habib Wahab-ul-Khairi, Mr. Raja Muhammad
Akram, Mr. Shaikh Akram, the learned counsel in those cases supported the proposition
chat the President white appointing the Judges of the superior Courts in exercise of his
power under Articles 177 and 19~ of the Gonstitutsnn is neither hound by The advice of
the Prime Minister under Article 48(1) of the Constitution nor such an advice is
necessary. The learned Attorney-General of Pakistan,, and respective Advocates-General
and Additional Advocates-General of the Provinces of Sindh, Punjab and N.-W..F.P. also
supported this proposition. One of the learned amicus in the case Mr. S. Sharifuddin
Pirzada also supported the above proposition.
On the other hand Mr. Iqbal Haider, and Mr. Hamid Khan the two learned counsel
expressed the views that the President in exercise of his powers under Articles 177 and
193 of the Constitution is bound by the advice of Prime Minister under Article 48(1) of
the Constitution, Mr. S.M. Zafar, the other learned amicus in these cases, supported this
later view.
21. . It has-been vehemently argued in these cases that since the concept of
Government under the Constitution is Federal and Parliamentary in nature, therefore,
Prime Minister who is the Chief Executive of the Federation and Head of the Federal
Cabinet is to have an effective role in all executive actions including the appointment of
Judges of the superior Courts. It is also contended that by vesting the power of
appointment of Judges to the President, the spirit of the Constitution would be changed
from Parliamentary to Presidential form. The nature of the Constitution, whether it is
Parliamentary or Presidential in character is determined by the scheme of a Constitution.
In a Constitution which envisages a parliamentary system of Government, the parliament
is considered supreme td all other organs of the State and the Cabinet consisting of
Ministers and Prime Minister is responsible for running and managing the affairs of the
Government. The concept of responsible Government or collective responsibility of
Cabinet to the parliament is inherent in this system. So long these features are present in
the Constitutional scheme, the system retains the characteristics of a parliamentary form,
Page No. 98 of 116

irrespective of the fact that some other powers under the Constitution are exercised by the
Prime Minister. Mr. S. Sharifuddin Pirzada, the learned amicus drew our attention to
various Constitutions enforced in the countries of the world, which though envisaged
parliamentary system of Government but the distribution of powers between the Prime
Minister as the Chief Executive and the President as head of the State are arranged in
these Constitutions differently. Suffice it to say that the Courts while interpreting a
written Constitution, will go by the wording of the documents and will not allow it to be
influenced or overridden by any extraneous principles of other Constitution not explicitly
incorporated in the scheme chosen by the Framers of the Constitution.
22. The first Article of the Constitution which requires consideration in these cases is
Article 48. Through the 8th Amendment the original Article 48 ~-as substituted by a new
Article in the Constitution. To correctly understand the scope of the stew Article 48 of the
Constitution, in my humble opinion, it is necessary to -xamine its language and scheme in
juxtaposition with the original Article 48. The two Articles are as follows-- '
Article 48 as it Article 48 after the 8th Amendment.

originally stood in the
Constitution of 1973.
(1) In the performance of his (1) In the exercise of his functions,
functions, the President shall act on the President shall act in accordance
and in accordance with the advice of with the advice of the Cabinet or the
the Prime Minister and such advice Prime Minister:
shall be binding on him.
Provided that the President may
(2) The question whether any, and if require the Cabinet or, as the case
so what advice was tendered to the may be, the Prime Minister to
President by the Prime Minister reconsider such advice,either
shall not be inquired into any Court. Generally or otherwise, and the
President shall act in accordance
(3) Save as otherwise provided in with the advice tendered after such
any rules made under Article 99, the reconsideration.
orders of the President shall require
for their validity the - (2) Notwithstanding anything
counter signatureof the Prime contained in clause (1), the President
Minister. " shall act in his discretion in respect
of any matter in respect of which he is empowered by the Constitution to do. so and the
validity of anything done by the President in his discretion shall not be called in question
on any ground whatsoever.
(4) The question whether any, and if so what. advice was tendered to the President by the
Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in,
or by, any Court, Tribunal or other authority.
(5) Where the President dissolves the National Assembly, he shall, in his discretion,--
(a) appoint a date, not later than ninety days from the date of the dissolution, for the
holding of a general election to the Assembly; and
(b) appoint a care-taker Cabinet.
(6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister,
considers that it is desirable that any matter of national importance should be referred to a
r=eferendum, the President may cause the matter to be referred to a referendum in the
form of a question that is capable of being answered either by "Yes" or "No".
(7) An Act of Majlis-e-Shoora (Parliament) may lay down the procedure for the holding
of a referendum and the compiling and consolidation of the result of a referendum.
23. The learned counsel who supported the proposition that the advice of Prime
Minister was neither necessary nor binding on the President while he exercises power
Page No. 99 of 116

under Articles 177 and 193 of the Constitution, laid much stress on the omission of the
expre=sion "shall be binding on him" from sub-clause (1) of Article 48. This deliberax
o.w..-.sion according to learned counsel not only changed the binding nature of the advice
of the Prime Minister but it also reflected the real intention of the Constitution-makers
which intended to alter the whole scheme behind Article 48, tilting the balance in. favour
of the President. It is further contended that by substituting sub-clause (2) in Article 48
which provided that the President shall act in his discretion in respect of any matter in
respect of which he is empowered by the Constitution to do so and the validity of any
thing done by the President in his discretion shall not be called in question on any ground
whatsoever, the Constitution-makers further made their intention explicit, that the
President who was merely a figure head under the original Constitution of 1973, . is now
an effective Constitutional functionary having a large Constitutional field available to
him for exercise of power without the advice of Prime Minister. Sub-clause (2) of Article
48 ibid, according to the learned counsel, vested the President with power to act in his
discretion wherever the provisions of the Constitution so permitted notwithstanding the
fact that the provisions did not use or contain the expression "in his discretion". To
reinforce the above argument, the learned counsel relied on the amendments made in
Article 90 of the Constitution through the 8th Amendment. The amended Article 90 of-
the Constitution states that the executive authority of the Federation shall vest in the
President and shall be exercised by him, either directly or through officers subordinate to
him, in accordance with the Constitution.
24. The amendments referred to by the learned counsel in support of the proposition
that these amendments transferred the executive authority of the Federation to the
President from the Prime Minister does not appear to be correct. The omission of
expression "shall be binding on him" from the original Article 48(1) of the Constitution in
my opinion made not much difference, in so far the authority of Prime Minister as the
head of the Cabinet and the Government was concerned. The omission of expression
"shall be binding on him" from sub-clause (1) of Article 48 ibid, in my opinion was
necessary to give full effect to the following proviso which was added to Article 48 ibid
after subclause (1):---
"Provided that the President may require the Cabinet or, as the case may be, the Prime
Minister to reconsider such advice, either generally or otherwise, and the President shall
act in accordance with the advice tenderred after such reconsideration. "
In my opinion by omission of the expression "shall be binding anhittx" from sub-

clause (1) and insertion of the proviso after this sub-clause of Article 48, the only change
in the scheme of this Article brought about was, that under the original Article 48, the
advice once tendered by the Prime Minister was binding on the President but now the
President is authorised to refer back the advice to Cabinet or Prime Minister as the case
may be, for reconsideration. However, the advice received by President after such
reconsideration binding under Article 48(1) of the Constitution. Similarly, sub-clause (2)
of Article 1R vested the President with the power to act in his discretion wherever he is a
authorised under the Constitution. The amended Article 48(1) of the Constitution is
similar to Article 74(1) of the Indian Constitution. Similarly, the provisions of Article
48(2) are comparable in language to Article 37(7) of the Constitution of Islamic Republic
of Pakistan, 1956. The language of amended Article 90 of the Constitution likewise is
similar to Article 39 of the Constitution of 196 and Article 53 of the Indian Constitution.
25. From the above discussion, it is quite clear that the changes brought about the Article
48(1) and (2) and Article 90 of the Constitution through the 8th Amendment were neither
unique nor extraordinary in character nor they were unknown in the Constitutional field.
The Makers of the Constitution., therefore. were deemed to be aware of the scope of
these amendments and the manner in which these amendments were interpreted. In my
view, therefore, the powers of President under the Constitution remained confined only to
the extent they were conferred on him specifically under the Constitution. I had the
occasion to consider in some detail the effect of amendments of Articles 48, 90 and 91 of
the Constitution on the powers of the President under the Constitution in the case relating
to dissolution of National Assembly reported as Muhammad Nawaz Sharif v: President of
Pakistan (supra), and as a reiteration of my views I reproduce the relevant passages which
read as follows:-
Page No. 100 of 116

"On a careful examination of the above Articles of the Constitution it is quite clear that
the President in discharge of his functions under the Constitution has to act on the advice
of Prime Minister or the Cabinet, except in those cases where he is specifically authorised
by the Constitution to act in his discretion. The discretionary powers of the President
under the Constitution are limited to the extent of making a few appointments to the high
Constitutional offices, besides his power to dissolve the National Assembly (Article 58(2)
(a) and (b), to refer a matter of National importance to referendum (Article 48(6) and to
fix a date for election within 90 days on dissolution of National Assembly and to appoint
a Caretaker Cabinet (Article 48(5)). Besides, the above discretionary powers of the
President under the Constitution, the Prime Minister is Constitutionally bound to
communicate to the President all decisions of the Cabinet relating to the administration of
the affairs of Federation and proposal for Legislation (Article 46(a)). The President may
also call for from the Prime Minister any information relating to the administration of the
affairs of the Federation and may also require for submission to the Cabinet for
consideration any matter on which a decision has been taken by the Prime Minister or a
Minister but not considered by the Cabinet (Article 46(h) and (c)). The President also has
the right to address either House or both the Houses of Parliament (Article 5611)) besides
his right to send messages to either House and the matter contained in such messages to
be considered by the House (Article 56(2)). At the commencement of first sessions of
National Assembly after general elections and at the commencement of first session of
each year, the President has the right to address the joint session of the two Houses of
Majlis-e-Shoora (Parliament) (Article 56(3)). It is quite significant that under Article
91(4) of the Constitution, the Cabinet together with Ministers of State is collectively
responsible to the National Assembly alone. It is also very important to note that although
the Prime Minister holds the office at the pleasure of the President but this pleasure
cannot be exercised by the President so ?ang as the prime Minister commands the
confidence of the majority of the members of the National Assembly and in order to
ascertain whether the Prime Minister has lost the confidence of the majority of the
members of the National Assembly, the President is obliged to Summon 3 session of
National Assembly and ask the Prime Minister to seek a vote of confidence from the
Assembly (Article 91(5)), From the, abase stated Constitutional position, there remains
no room for any doubt rh?r the Prime Minister in running the affairs of the Government is
neither answerable to President nor in that capacity he is subordinate to the President- In
formulating the policies of his Government and running its affairs the Prime Minister
under the. Constitution is answerable only to the National Assembly and the President has
no Constitutional role in this behalf. The President in all such matters is bound by the
advice of Prime Minister or the Cabinet. No doubt, President may require the Cabinet or
the Prime Minister, as the case may be, to reconsider any advice tendered to him but the
President is bound to act on the advice tendered after reconsideration.
The President and the Prime Minister have defined roles under the Constitution which do
not overlap. They exercise powers in their respective Constitutional domain unhindered
and uninterrupted by each other. No doubt, Constitutionally it would be an ideal situation
where both the President and the Prime Minister have identity of view on matters
concerning the affairs of the Federation but ideals do not exist in reality as they are
outcome of imagination. Therefore, difference in perception on the part of holders of
these two top offices on any issue should not cause any stirring or alarm as in spite of
different perceptions, persona( likes or dislikes the two can co-exist Constitutionally. It is
important to note that while addressing an issue in discharge of their Constitutional
obligation, both the President and Prime Minister are bound to act within the limitations
imposed on them by the Constitution and their personal feelings, likes or dislikes cannot
override the Constitutional mandate. We should also bear in mind that the method of
election provided under the Constitution for these two top offices, also foresees a
possibility that the holders of these two top posts may not belong to the same political
party. Therefore, possibility of a play in the relationship between the holders of these two
top posts cannot be ruled out.
No doubt, the President as the symbol of the unity of Federation occupies a neutral
position in the Constitution, and in that capacity he is entitled to highest respect and
regard by all the functionaries of the State. But it is equally important that in order to
protect and preserve the dignity of this high office and this neutral image under the
Page No. 101 of 116

Constitution the President must keep aloof from all political imbroglio, If the President is
unable toward off the temptation to keep away from political game or he starts siding
with one or the other political element in the Assembly, he is likely to lose his image as
the neutral arbiter in national affairs and as a symbol of unity of Federation under the
Constitution. In the latter event, his conduct may also came under criticism from those
who may feel betrayed."
26. It is also argued before us that Article 48 contains provisions which are of general
application while Articles 177 and 193 of the Constitution lay dawn a special procedure
for exercise of power by the president under the Constitution.
On this premises, it is contended that the special provisions contained in Articles 177 and
193 would prevail aver the general provisions of Article 48f1).
It is also contended that in order to protect and preserve the concept of independence of
judiciary enshrined in Article 2-A, separation of judiciary from the executive
contemplated under Article 175(3) of the Constitution and to guard against the political
influences finding their way in the judiciary Articles 177 and 193 of the Constitution be
interpreted in a manner that the power to appoint Judges of the superior Courts is vested
with the President without the advice of
the Prime Minister. Such an interpretation, it is suggested, is more in consonance with the
scheme of Constitution, the historical and legislative background and the conventions
followed in this behalf. These solemn and weighty considerations may be relevant if there
is difficulty in discovering the real intent of the Constitution-makers on account of
ambiguity in the language of the Constitution. The provisions of the Constitution which
we are called upon to interpret here present no such difficulty. It is an admitted position
that through 8th Amendment while changes were introduced in various Articles of the
Constitution, the Chapter relating to the judiciary and especially Articles 177 and 193,
remained in their original form. The retention of the provisions of Articles 177 and 193 of
the Constitution in their original forms suggests that the Framers of the Constitution did
not intend to change the scheme and scope of these provisions. It is not disputed before
us that from the time of enforcement of the Constitution of 1933, all appointments in the
higher judiciary were made by the President in consultation with the Prime Minister (this
however, does not include to the period when the country remained under Martial Law
from July, 1977 to March 1985). Even after the incorporation of 8th Amendment in the
Constitution, the appointments in the higher judiciary continued to be made by the head
of the State on the advice of Prime Minister. Mr. Iqbal Haider, the learned counsel for the
former Prime Minister drew our attention to the Rules of Business (hereinafter to be
called as "the Rules' only) framed under the Constitution in exercise of the power derived
under Articles 90 and 99 of the Constitution. The learned counsel referred to Rule 15-
A(1) of the Rules and Items Nos.31, 32 and 33 of Schedule V-B under Rule 15-A(1) in
support of his contentions that matters relating to appointments of Judges of Supreme
Court, High Courts and the Federal Shariat Court, the Chief Justice of Pakistan and Chief
Justices of High Courts and Federal Shariat Court, were always considered matters
falling within the scope of clause (1) of Rule 15-A of the Rules, where advice of the
Prime Minister was necessary. The learned counsel contended that matters falling within
the discretionary powers of President, where no advice of the Prime Minister was
required, were covered by sub-clause (2) of Rule 15-A and details of these matters are
mentioned in Schedule VI. Rule 15-A and Items 31, 32 and 33 of the Schedule V-B read
as follows:---
"15-A. Reference to the President.---(1) Notwithstanding the provisions made in these

rules, where in terms of any provision of the Constitution any function is to be
performed or any orders have to be issued by the President or his specific approval is
required, the Division concerned shall incorporate a paragraph to this effect in the
summary entitled as "Summary for the Prime Minister". The Prime Minister shall
tender his advice and submit the case to the President. After the President has seen
and approved the case, it shall be returned to the Prime Minister. The cases to which
this sub-rule applies are enumerated in Schedule V-B.
Page No. 102 of 116

(2) Notwithstanding the provisions made in these rules, where in terms of any provisions
of the Constitution any function is to be performed or any orders have to be-issued
by the President in his discretion, the Division concerned shall submit the case to the
President through the Prime Minister including a self-contained, concise and
objective summary entitled as "Summary for the President" stating the relevant facts
and points for decision prepared on the same lines as prescribed in these rules for a
Summary for the Cabinet, except that only one copy will be required which may not
be printed. This procedure will not, however, be applicable where the case is initiated
by the President himself and decided in consultation with the Prime Minister. The
cases to which this sub-rule applies are enumerated in Schedule VI.
(3) The cases and papers referred to in Schedule VII shall be submitted to the President
for his information."
"SCHEDULE V-B
Rule 15-A (1)
List of cases requiring orders of, the President on the advice of the
Prime..............Minsiter .......... ........ .... ........ .... .... .... .... .... ...... ... ...
...
(a) Sitting of the Court at places other Article 183(2).

than Islamabad.
(b) Number of Judges, appointment of the Articles 177(1),
Chief Justice, other Judges and their 179, 182,
resignation, removal, allowances and 209(6).
privileges.
32. High Courts: number of Judges, their Article 203-C"
appointments., transfers, resignation,
removal, allowances and privileges.
27. Rule 15-A was added in the Rules oni 4-8-1985, after. the Constitution was
amended through the 8th Amendment. From reading of Rule 15-A(1) ibid, and Items
Nos. 31, 32 and 33 of Schedule V-B it appears that summaries for the appointment of
Judges of Supreme Court, High Courts, Federal Shariat Court, the Chief Justice of
Pakistan and Chief Justices of High ,Courts and Federal Shariat Court, are submitted to
the President for approval after advice is tendered by the Prime Minister. Insertion of
Rule IS-A in the Rules on 4-8-1985, supports the conclusion that the amendments in
Articles 48 and 90 of the Constitution through the 8th Amendment did not affect the
original .scheme of Constitution and advice of Prime Minister was necessary in exercise
of power by.the President under Articles 177 and 193 of the Constitution. While still on
this point, I may attend to another argument raised in this behalf. It is argued that besides
performing various functions under the Constitution on the advice of Prime Minister, the
President in some cases acts under the command of the Constitution in discharge of his
Constitutional duty and, therefore, in the latter cases the advice of Prime Minister is
neither necessary nor binding on the President. On these premises, it is argued that the
President while exercising powers under Articles 177 and 193 of the Constitution does
not perform 'function' but acts in discharge of his Constitutional duty. Article 48(1) of the
Constitution refers to the functions of the President. Article 48(2) similarly refers to the
acts which the President performs in his discretion. Article 48 nowhere makes any
reference, to the duties of the President under the Pakistan in his discretion proceeds from
the realization that the Prime Minister who would be involved in serious political
conflicts and important State litigation would not process the necessary objectivity. The
President unaffected by those conflicts would be in a better position to make a .proper
selection. United Democratic Front would not object to the Prime Minister and the Law
Minister placing their views before the President prior to his making the selection. But it
would be contrary to national interest to make this matter on which the Prime Minister's
advice should bind the President.
The independence of the judiciary is an agreed objective The UDF is glad that the
improper interference with the independence of judiciary through a resolution of
Page No. 103 of 116

Parliament seeking removal of Judges has been dropped. When we suggested executive
control over all judicial institutions vesting in the Supreme Court, we were not trying to
interfere with Provincial autonomy. We were following the American and Turkish
precedent. If the Government would like the High Courts to exercise this executive
control over all Courts and Tribunals civil and criminal including special Courts within
their jurisdiction, we will gladly fall in line. We, however, object to the executive
Government having any kind of control over Courts as we know by experience that this
seriously impairs the independence of judiciary.
The Government party cannot be really serious in insisting that for every vacancy in the
Supreme Court or the High Court, the Chief Justice of Pakistan should recommend three
persons. There are not so many capable persons available for such recommendations.
When we suggested that the Presiding Officer of the highest Administrative Court or
Tribunal should be a sitting or retired Judge of the High Court, we were conscious that
this could not apply to lower administrative Courts at the district or divisional level. The
need for an appellate administrative Court in every Province cannot be under estimated,
and the requirement that the Presiding Officer of the highest Special Court or Tribunal
should be sitting or retired Judge needs no argument. Nevertheless, Mr. Bhutto has
declined to accept this suggestion. " (The underlining in my own).
The above extract from the rejoinder of UDF issued in reply to Memoir of late
Zulfikar Ali Bhutto, dated 4-4=1973, clearly spells out two things. Firstly, the front did
not object to the views of Prime Minister or. that of the Law Minister being placed before
the President prior to the appointment and selection of Judges but that the advice of
Prime Minister should not be binding on the President in this behalf. The UDF could not
have taken this stand on 9-4-1973 if there was already an agreement between the UDF
and Peoples' Party in the Assembly that the power to appoint the Judges of superior
courts will be exercised by President. Secondly, the UDF in its reaction
on 9-4-1973 expressed satisfaction on the dropping of provision in draft Constitution

relating to removal of Judges through a resolution of Parliament, which had an obvious
reference to the underlined statement at page 157 of the documents relied by Mr. Pirzada
the learned amicus. It is not disputed before us that after the Constitution of 1973 was
enforced all appointments of the Judges of superior Courts under Articles 177 and 193 of
the Constitution were made by the President on the advice of the Prime Minister. This
practice continued to be followed even after the Constitution was amended through the
8th Amendment, is fully borne out, from Rule 15-A and Schedule V-B of the Rules,
framed under Articles 90 and 99 of the Constitution, which were inserted on 4-8-1985.
28. The preceding discussion leaves no room for any doubt that the advice of Prime
Minister is necessary in the appointment of Judges of superior Courts under Articles 177
and 193 of the Constitution by the President. The only other point which remains to be
answered is, in what manner the advice is to be tendered by the Prime Minister in
connection with the appointments of Judges of the Superior ~ Courts under Articles 177
and 193 of the Constitution after the decision of this Court in Al-Jehad Trust case. The
Indian Supreme Court in the case of Samsher Singh v. State of Punjab, supra, while
holding that the President's satisfaction under the Indian Constitution meant the
satisfaction of the Minister or Council of Ministers, emphasised the concept of
independence of judiciary as follows:---
"The independence of judiciary, which is a cardinal principle of the Constitution and has
been relied on to justify the deviation, is guarded by 'the relevant Article making
consultation with the Chief Justice of India obligatory. In all conceivable cases
consultation with that highest dignitary of Indian Justice will and should be accepted by
the Government of India and the Court will have an opportunity to examine if any other
extraneous circumstances have entered into the verdict of the Minister, if he departs from
the counsel given by the Chief Justice of India. In practice the last word in such a
sensitive subject must belong to the Chief Justice of India, the rejection of his advice
being ordinarily regarded as prompted by oblique considerations vitiating the order. In
this view it is immaterial whether the President or the Prime Minister or the Minister for
Justice formally decides the issue."
Page No. 104 of 116

Similar 'observations were made in the case of S.C. Advocates-onRecord v. Union
of India, supra, by the Indian Supreme Court, which were as follows:---
"482. If it were to be held that, notwithstanding the requirement of Articles 124(2) and
217(1) of mandatory consultation with the Chief Justice of India and Chief Justice of the
High Court, the Council of Ministers has the unfettered discretion to give contrary
advice, ignoring the views of the Chief Justice of India, and the President is bound by
Article 74(1) to act in accordance with that advice, then Constitutional purpose of
introducing the mandatory requirement of consultation in Articles 124(2) and 217(1)
would be frustrated. It is for this reason, that in the matter of appointments of Judges of
the superior judiciary, the interpretation and harmonisation of Article 74(1) with Articles
124(2) and 217(1) has to be borne in mind, to serve the Constitutional purpose. In short,
in the matter of appointments of Judges of the superior judiciary, the Constitutional
requirement is, that the President is to act in accordance with the advice of the Council of
Ministers as provided in Article 74(1); and the advice of the Council of Ministers is to be
given in accordance with Articles 124(2) and 217(I), as construed by this Court. In this
sphere, Article 74(1) is circumscribed by the requirement of Articles 124 (2) and 217(1),
and all of them have to be read together."
29. This Court in the ease of Al-Jehad Trust, supra, ruled that the opinion of the Chief
Justice of Pakistan and Chief Justice of a High Court as to fitness and suitability of a
candidate far judgeship is entitled to be accepted in the absence of very sound reasons to
be recorded by the executive/President. It was further held in that case that appointment
of a person found unfit and unsuitable far judgeship by the Chief Justice of Pakistan and
the Chief Justice of High Court concerned, would riot be a proper exercise of power
under the relevant Articles of the Constitution. This Court also fixed the time frame for
filling the permanent vacancies occurring in the offices of Chief Justice and Judges not
later than 30 days and for a vacancy occurring before the due date on account of death or
for any other reason, within 90 days an permanent basis. The advice of the Prime
Minister to be binding an the President must be in line with the abase ratio in the ease of
AI-Jehad Trust. The Supreme Court of India in the case of S.C. Advocates-an-Record v.
Union of India, supra, in order to ensure proper compliance of the judgment and to
prevent undue delay in the process of appointment of Judges made the following
observations.-_-
"(12)Adherence to a time bound schedule would prevent any undue delay and avoid
dilatory methods in the appointment process. On initiation of the proposal by the
Chief Justice of India or the Chief Justice of the High Court, as the case may be,
failure of any other Constitutional functionary to express its opinion within the
specified Period should be construed to mean the deemed agreement of that
functionary with the recommendation, and the President is expected to make the
appointment in accordance with the final. opinion of the Chief Justice of India. In
such a situation, after expiry of the specified time within which all the Constitutional
functionaries are to give their opinion, the Chief Justice of India is expected to
request the President to-make the appointment without any further delay, the process
of consultation being complete."
30. 1 am in respectful agreement with the above observations and inclined
to hold that if the Prime Minister within the time frame fixed in the judgment of this
Court in A1-Jehad Trust case fails to tender his advice, he or she shall be deemed to have
agreed to the recommendations of the Chief Justice of Pakistan and that of the Chief
Justice of Provincial High Court as the case malt be and the president may Proceed to
make the final appointment on that basis. The question of eau referred by the president
under Article 186 of the Constitution this Court far opinion, is answered as stated above.
31. The decision of President's Reference No.2 of 1996 completely covers the disposal
of Constitution Petition No.54 of 1996 wherein in question of law agitated by the
petitioner is identical to the legal proposition answered by us in the Reference. In so far
Constitution Petition No. 23 of 1996 is concerned, in this petition besides the question of
interpretation of Articles 48, 177 and 193 of the Constitution, which has been decided by
this judgment, the petitioner has claimed several other reliefs which in my opinion do not
Page No. 105 of 116

arise at present and therefore, need not be decided in these proceedings. With these
observations, Constitution Petition No.23 of 1996 also stands disposed of.
32. Before concluding, I would like to record my appreciation for the valuable and
able assistance rendered by the two learned amcius curiae, Mr. S.S. Pirzada and Mr. S.M.
Zafar, Senior Advocates of this Court, in resolving the legal issue referred to this Court
for opinion. I may also mention here that Mr. S.S~. Pirzada, in spite of his other
professional engagement, regmlariy attended the proceedings of these cases and was
available in the Court most of the time for assistance:-I also thank Mr. Hamid Khan,
Advocate, the Vice-Chairman of Pakistan Bar Council and Mr. Akram Shaikh, Advocate,
the President of Supreme Court Bar Association for placing before the Court the views of
their respective associations. The above are the reasons in support of short order
announced on 4-12-1996.
(Sd. )
SAIDUZZAMAN SIDDIQUI, J
RAJA AFRASIAB KHAN, J.-- On 21st of April 1996, Constitution Petition No.23 of
1996 (Al-Jehad Trust v. Federation of Pakistan and others) was directly filed in this Court
under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973 with the
following prayer:--
Constitution Petition No .54 of 1996 (Zafar Iqbal Chaudhry ,Advocate v Federation of
Pakistan and others ) was instituted on 26th of august 1996 praying ‘’ In view of the above
, it is most respectfully prayed that this Hon’ble Court may very graciously issue
necessary direction for protection and
enforcement of fundamental rights of the petitioner under Articles 4,14 and 25 and
pronounce that the Prime Minister of Pakistan has no power/authority under Article 48 of
the Constitution of Pakistan to interfere, in any manner, in the matter of appointment of
Judges of superior Courts. .
Any other relief to which the petitioner is found entitled may also graciously be granted."
On 19-5-1996, Reference No. l of 1996 was filed by the Federal Government

without obtaining the signatures of the President. Another Special Reference No.2 of
1996 was sent by the President on 21st of September, 1996 under Article 186 of the
Constitution for securing the opinion of this Court on the question:
provisions of Article 48(1) of the Constitution. "
During the hearing of the aforesaid matters, Reference No. l of 1996 was not pressed by
the learned counsel for the President and as such, it was dismissed as withdrawn on 23-
1~1-1996. It is not necessary to state all the facts and the circumstances under which the
aforementioned cases were filed inasmuch as they have fully been given by the Hon'ble
Chief Justice in his leading judgment. I, respectfully agree with the judgment. However,
in view of the great public importance of the question involved in these matters, I have
decided to add a note of my own. The preamble of the Constitution which was later on
made a substantive part of the Constitution as Article 2A, would demonstrate that our
Constitution envisages the Parliamentary form of Government. In order to better
understand the point, Article 2A is reproduced:--
"2A: Whereas sovereignty over the entire universe belongs to Allah Almighty alone and
the authority which He has delegated to the State of Pakistan, through its people for being
exercised within the limits prescribed by Him is a sacred trust;
This Constituent Assembly representing the people of Pakistan resolves to frame a
Constitution for the sovereign independent State of Pakistan;
Wherein the State shall exercise its ,powers and authority through the chosen
representatives of the people;
Wherein the principles of democracy, freedom, equality, tolerance and social justice as
enunciated by Islam shall be fully observed;
Page No. 106 of 116

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 Qur'an and the Sunnah; Wherein
adequate provisions shall be made for the minorities to profess
and practise their religions and develop their cultures; Wherein the territories now
included in or in accession with Pakistan and such other territories as may hereafter be
included in or accede to Pakistan shall form a Federation wherein the units will be
autonomous with such boundaries and limitations on their powers and authority as may
be prescribed; Wherein shall be guaranteed fundamental rights including equality of
status, of opportunity and before law, social, economic and political justice, and freedom
of thought, expression, belief, faith, worship and association, subject to law and public
morality; Wherein adequate provision shall be made to safeguard the legitimate interests
of minorities and backward and depressed classes; Wherein the integrity of the territories
of the Federation, its independence and all its rights including its sovereign rights on
land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and
attain their rightful and honoured place amongst the nations of the World and make their
full contribution towards international peace and progress and happiness of humanity.
" This Article has unequivocally stated that 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. It provides that the State shall
exercise its powers and authority through the chosen representatives of the people
(underlining is mine).- A perusal of the Resolution shows that system of our Government
is Parliamentary inasmuch as the powers and authority of the State shall be exercised by
the chosen representatives of the people. The terms "people" includes the whole mass of
persons living in Pakistan. At page 746 of Macmillan Dictionary, the leaning/illustration
of "People" has been given in these words:--
"People.--1. persons, esp. when considered indefinitely or collectively: She's afraid of

what people might say. This theater can seat 500 people. 2. body of persons comprising a
nation, race, tribe, or community: the Israeli people, primitive peoples, the peoples of
Asia. 3. body of persons considered as or comprising a distinct group: rich people, people
of New England. 4. body of citizens of a State or other political unit: Congressmen are
elected by the people. 5. body or mass of common persons as distinguished from person
of some special group or class: the everyday language of the people. 6. persons in relation
to a superior, as the subjects of a ruler: the King was loved by his people. 7. human tciugs
as distinguished from animals: Distemper is not a disease affecting people 8. informal,
one"s family; relatives, 9. the little (or good) people. leprechauns; fairies.-- v.t. ples,-
pling. to fill with inhabitants; populate: the myriad of human beings who people the K
earth. (Old French pueple body of persons, nation, the public, from Latin Populus). "
This leaves no doubt to say that the people having been mentioned in the Article
would represent the whole nation. The people will choose their representatives in a free,
fair, unfettered and honest election to be held under Part VIII (Articles 213 to 226) of the
Constitution. Article 218 provides:--
(1) ... ... ... ... ... ... ... ... ... ... ....
(2) ... ... ... ... ... ... ... ... ... ... ....
(a) ... ... .. ... ... ... ... ... ... ... ... ..
(b) .. ..: ... ... ... ... ... ... ... ... ... .. `
(3) It shall be the duty of the Election Commission constituted in relation to an election
to organize and conduct the election and to make such arrangements as are necessary
to ensure that the election is conducted -honestly, justly, fairly and in accordance
with law, and that corrupt
practices are guarded against." (Underlining is mine).
The elections have to be held strictly in accordance with law, justly, fairly and
honestly. The people who are responsible to arrange/organize such elections, are bound
Page No. 107 of 116

under the Constitution and the law to be impartial, neutral and honest to the greatest
possible extent in the discharge of their sacred duties. It has been emphasised by the
Constitution that corrupt practices are to be guarded against This is indeed, a Herculean
job to be done by the "Chief Election Commissioner'. It cannot be said; that he is
subordinate to any Authority while doing his duties in holding free, fair and transparent
elections which would, in turn, give birth to a body/institution of the nation called
"Parliament (Majlis-e-Shoorah)". In its own rights, the Parliament shall be all powerful in
the field of law-making within the limits prescribed by the Constitution. In such a set-up,
Prime Minister has teen shown to be the leader tit the majority party in trio National
Assembly. Likewise, he/she is the leader of a political party which has given a manifesto
to the nation on the basis of which, such a leader has succeeded in the general elections
defeating all his political opponents., In other words, 'he/she (prime Minister) will be the
leader of the chosen representatives as has been mentioned in Article 2A. He will thus IV
represent the will of the people. Needles to add that the chosen representative of the
people shall fulfil all the qualifications having beets mentioned in Article 62 of the
Constitution. In case, any one or some of them, is/are hit by any of the disqualifications
under Article 63, he/they will be declared to have lost his/their membership or shall be
disqualified from being elected as member of the Parliament by the competent Authority.
The Prime Minister has also been held not to be subordinate or inferior to- the President
in the landmark judgment of this Court reported as Mian Muhammad Nawaz Sharif v.
Federation of Pakistan etc. PLD 1993 SC 473. It is true that drastic changes have been
made in the Constitution by means of Constitution (Eighth Amendment) Act, 1985
(hereinafter called the Eighth Amendment) under which specific powers have been
given to the President. This is surely a scheme to create balance of powers between the
President and the' Prime Minister. However, the fact remains that the basic structure
namely Parliamentary form of Government was not touched by the Eighth Amendment. It
remains the same as existed in the original Constitution. Under Article 48(1), the
President is bound to act in accordance with the advice of the Cabinet or the Prime
Minister. The President may send 0 back the advice to the Prime Minister for
reconsideration. Nevertheless, the 0 President shall act according to the advice after its
reconsideration. Language of 0 clause (1) of Article 48 even after amendment does
indicate that the powers of the Prime Minister have not been affected so substantially so
as to conclude that the system has. been changed. The original system of Government
remains in the field only with the change that some more powers were specifically given
to the President to be exercised by him in his discretion to. meet an appropriate situation.
Article 91 of the Constitution illustrates that there shall be a Cabinet of Ministers, with
the Prime Minister at its head to aid and advise the President in the exercise of his
functions. Provisions of Article 91 have further reiterated/confirmed the powers to be
exercised by the Prime Minister to run the P affairs of the Federation in his/her own
rights. This may be possible only where P there is Parliamentary form of Government. In
the Presidential system of P Government, all the powers will vest in the' President. The
Prime Minister, if any, in such a system, has surely a second role to play and that too;
under the supervision and control of the President who is, in fact, the fountain head of all
the State powers. This question was somewhat discussed to show that system prevailing
in Pakistan is Parliamentary. Mian Muhammad Nawaz Sharif's case (supra) in support of
this plea, may usefully be referred. In this judgment, Mr. Justice Sajjad Ali Shah (as his
Lordship then was) noted the following observations made by Zafar Hussain Mirza J. at
page 766:
"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 provisions in the Objectives Resolution. Even
otherwise, speaking broadly, our Constitution is a Federal Constitution based 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. True and fair elections and the existence of
political parties, is an essential adjunct of a functional democratic system of
Government."
The view expressed by Mr. Justice Muhammad Afzal Lone at page 756 is:---
"Our Constitution ordains a Parliamentary system of Government with collective
ministerial responsibility to the Parliament."
Page No. 108 of 116

Mr. Justice Nasim Hasan Shah the then Hon'ble Chief Justice observed:---
"Thus in the scheme of our Constitution, the guarantee ' to form a political party' must be
deemed to comprise also the right by that political party to form the Government,
wherever the said political party possesses the requisite majority in the Assembly. As was
explained by Chief Justice Muhammad Haleem in the same judgment:---
'Our Constitution is of the pattern of Parliamentary democracy with a Cabinet system

based on party system as essentially it is composed of the representatives of a party
which is in majority ...It is a party system that converts the results of a Parliamentary
election into a
Government'. "
There can be no doubt about the proposition that in a pure Parliamentary system of
Government, Chief Executive shall always be the Prime Minister. A question of law
which has been sent to this Court to obtain its opinion is "whether or not K the President
of Pakistan is bound by the advice of the Prime Minister rendered to him under Article
48(1) of the Constitution in respect of appointment of Judges". In the abovesaid
background, it is not difficult to say that clause (1) of! Article 48 of the Constitution will
apply in respect of appointment of Judges. In IF this connection, very exhaustive and
elaborate arguments were addressed by the learned counsel for the parties to support
their views. Shortly, one submission of M/s. Habibul Wahabul Khairi, Raja Muhammad
Akram and Syed Sharifuddin Pirzada was that keeping .in view the nature of the
controversy advice of the Prime Minister in regard to appointment of Judges is not
necessary and the provisions of clause (1) of Article 48 of the Constitution will not be
attracted. According to them, clause (2) of Article 48 shall apply. It is submitted that
under Articles 177 and 193, Prime Minister has not been mentioned with a clear purpose
in the list of consultees just to oust him/her in the matter of such appointments. This
being the position, advice of the Prime Minister is not needed. In consequence, the
President shall be competent to appoint the Judges of the superior Courts without the
receipt of advice of the Prime Minister. Syed Iqbal Haider, learned counsel for the former
Prime Minister, respondent No.3 has submitted that in the Parliamentary form of
Government, the advice of the Prime Minister is necessary and shall bind the President in
the discharge of his functions. According to him, the powers which have been given to
the President after Eighth Amendment have been mentioned in various Articles of the
Constitution but they do not affect the authority of the Prime Minister. Mr. S.M. Zafar has
argued that Articles 177 and 193 of the Constitution have not been amended and reading
them alongwith clause (1) of Article 48 and also keeping in view the modality of
interpretation of statutes the position which prevailed before the Eighth Amendment
would apply obliging the President to act on the advice of the Prime Minister in respect
of appointment of Judges. He continues to argue that system of Government in Pakistan
is Parliamentary under 1973 Constitution. In this scenario, decision/opinion of my
brother Saiduzzaman Siddiqui, J. is:---
"This Court in the case of AI-Jehad Trust, supra, ruled that the opinion of the Chief
Justice of Pakistan and Chief Justice of a High Court as to fitness and suitability of a
candidate for judgeship is entitled to be accepted in the absence of very sound reasons to
be recorded by the Executive/President. It was further held in that case that aappointment
of a person found unfit and unsuitable for judaeshin by the Chief Justice of Pakistan and
the Chief Justice of High Court concerned would not be a mover exercise of power under
the relevant Articles of the Constitution. This Court also fixed the time frame for filling
the permanent vacancies occurring in the offices of Chief Justice and Judges not later
than 30 days and for a vacancy occurring before the due date on account of death or for
any other reason, within 90 days on permanent basis. The advice of the Prime Minister to
be binding on the President must be in line with the above ratio in the case of Al-Jehad
Trust. The Supreme Court of India in the case of SC Advocates-on Record v. Union of
India, supra, in order to ensure proper compliance of the judgment and to prevent undue
delay in the process of appointment of Judges made the following observations:---
"(12) Adherence to a time bound schedule would prevent any undue delay and avoid
dilatory methods in the appointment process. On initiation. of the proposal by the Chief
Page No. 109 of 116

Justice of India or the Chief Justice of the High Court as the case may be, failure. of any
other Constitutional functionary to express its opinion within the specified period should
be construed to mean the deemed agreement of that functionary with the
recommendation, and the President is expected to make the aunointment in accordance
with the final opinion of the Chief Justice of India. In such a situation, after expiry of the
specified time within which all the Constitutional functionaries are to give their opinion,
the Chief Justice of India is expected to request the President to make, the appointment
without any further delay, the process; of consultation being complete. "
I am in respectful agreement with the above observations and inclined to hold

that if the Prime Minister within the time-frame fixed in the judgment of this Court in
Al-Jehad Trust case fails to tender his advice, he or she shall be S deemed to have agreed
to the recommendations of the Chief Justice of Pakistan S and that of the Chief Justice of
Provincial High Court as the case may be, and S the President may proceed to make the
final appointment on that basis. The question of law referred by the President under
Article 186 of the Constitution to this Court for opinion, is answered as stated above."
(Underlining is mine).
An elaborate judgment/opinion has been given by Mr. Justice Ajmal Mian. Inter alia, it
states:--- ,
"Mr. S.M. Zafar's above submission seems to have been as it does not stand to reason that
in respect of two Articles relating to judiciary ' Prime Minister's advice is not necessary
under Article 48(1) whereas in respect of about 12 Articles, Prime Minister's advice is
required for the reason that no special consultees are mentioned therein. The above
scenario does not fit in with the structural arguments. Mr. S.M. Zafar has referred to the
book titled 'Constitutional Interpretation' by Bobbitt Philip in which the above six rules of
interpretation have been effectively dealt with.
The above contention also stands negated by the fact that since the framing of 1973
Constitution, the appointments of the Judges of the superior Courts have always been
made on the basis of the advice of the Prime Minister."
-' The leading judgment rendered by Hon'ble Chief Justice has covered each and
every point raised and argued by the learned counsel for the parties. His Lordship has
given opinion on the controversy in a very lucid and masterly way in paras. 85 and 86 of
his judgment which is:---
"The last point is very thought-provoking and was raised in .Court during the hearing,
which is to they effect as to what will happen if the judgment of the Supreme Court in the
appointment of Judges' Case is not implemented. Learned counsel who had appeared in
these matters made different comments. Mr. S.M. Zafar as amicus curiae stated that in
such a situation President will be justified to invoke Article 58(2)(b) of the Constitution
because it would amount to arising of situation in which Government of the Federation
cannot be carried on in accordance with the provisions of the Constitution. Under the four
corners of the Constitution Article 189 provides specifically that 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. Article 190
envisaged that all Executive and Judicial Authorities throughout Pakistan shall act in aid
of the, Supreme Court. Article 204 empowers the Supreme Court to punish for contempt
any person who--
(a) abuses, interferes with or obstructs the process of the Court in any way or disobeys
any order of the Court;
(b) Scandalizes the Court or otherwise does anything which tends to bring the
Court or a Judge of the Court into hatred, ridicule or contempt;
(c) does anything which tends to prejudice the determination of a matter, pending
before the Court; or
(d) does any other thing which by law, constitutes contempt of the Court.
Page No. 110 of 116

In the case of non-implementation of the judgment it will have to be found out as to who
is responsible for not implementing it. Article 190 is a mandatory provision under which
there is no alternative for the Executive but has to act in aid of the Supreme Court. Person
identified as responsible for in-implementation of the judgment can be punished by the
Supreme Court for contempt for is obedience of its judgment. Perusal of Articles 177
and 193 and other Articles, which are relevant for the subject-matter of Judiciary shows
that Supreme Court has to correspond with the President for appointments as he is named
specifically in the relevant Articles and all Executive actions are to be taken in his name.
It is expected that President shall see to it that appointments of Judges in the Superior
Judiciary are made in strict accordance with the Constitutional scheme contemplated in
Articles 177 and 193 of the Constitution which are to be interpreted and read in
conjunction with the judgment in Al-Jehad Trust case which is authoritative adjudicatory
pronouncement in respect of interpretation of Articles in the Constitution relating to the
Judiciary. Time-frame is also provided in the judgment within which appointments are to
be finalised.
If there is undue delay or impasse which shows that dilatory tactics are being adopted and
sincere attempt is not being made to implement the judgment, then it will become the
Constitutional duty of the President to see that judgment of the Supreme Court is
implemented and there is
no violation or non-compliance of Article 190 of the Constitution which makes it

mandatory for all Executive and Judicial Authorities throughout' Pakistan to act in aid of
the Supreme Court. If all the Executive and Judicial Authorities in Pakistan are unable to
come in aid
of the Supreme Court and judgment is not implemented, then such situation would be
open to be construed as impasse or deadlock and would amount to very unhappy situation
reflecting failure of
Constitutional machinery and one would be justified to say that a situation has arisen in
which the Government of Federation cannot be
carried on in accordance with the provisions of the Constitution as is contemplated under
Article 58(2)(b)."
I shall further support the above conclusions. If the judgment of this Court is not
implemented intentionally, an answer to the question has been given under Article 204 of
the Constitution. This shall clearly mean that the order/deciee of the Court has been
disobeyed. The Constitutional command is that the law declared by the Supreme Court
shall bind all Courts of the country. Article 190 of the Constitution has ordained that all
Executive and Judicial Authorities throughout Pakistan shall act in aid of Supreme Court
of Pakistan. Learned Chief Justice has rightly held that provisions of Article 204 will be
attracted in case of non-implementation of judgment of this Court. Under Article 5,
obedience to the Constitution and law is the inviolable obligation of every' I citizen of
Pakistan. Article 25 states that all the citizens are equal before law and are entitled to
equal protection of law. In other words, no citizen howhighsoever he may be, can claim
exemption/immunity from the application of law of the land. This being the position,
every person in authority is bound to come in aid of Supreme Court in the
implementation of its judgment whether or not such, a -person is called upon to do so.
There should be no doubt/ambiguity about this proposition of law. In case of State v. Zia-
ur-Rehman PLD 1973 SC 49 following observations were made:---
"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; 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 particular provision of the Constitution means or does not mean even if that particular
provision is a
provision seeking to oust the 'jurisdiction of the Court.
Page No. 111 of 116

This is a right which it acquires not de hors the Constitution but by virtue of the fact that
it is a superior Court set up by the Constitution itself. It is not necessary for this purpose
to invoke any divine or supernatural 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 clear that I am making a distinction between
"judicial power" and "jurisdiction". In system where there is a trichotomy of sovereign
powers, then ex necessitate rel 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 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.'
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 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 powers'? 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
'nay 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
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 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.
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 enactment comes into conflict with it because, it is its duty to see that the
Constitution prevails. It is only when the Legislature fails to keep within its own
Constitutional limits, the Judiciary steps in to enforce compliance with the Constitution.
This is no doubt a delicate task as pointed out in the case of Fazlul Quader Choudhary v.
Shah Nawaz, which has to be performed with great circumspection out ii teas
nevertheless w bt performed as a sacred Constitutional duty when other State
functionaries disregard the limitations imposed upon them or claim to exercise owe?
which the people have been careful. to withhold from them.
On the other hand, it is equally important to remember that it is not the function of the
judiciary to legislate or to question the wisdom of the Legislature in making a particular
law if it has made it competently without .transgressing the limitations of the
Constitution. Again if a law has been competently and validly made the judiciary. cannot
accuse to enforce it even if the result of it to be to nullify its own decisions. The
Legislature has also every right to change, amend or clarify the law if the judiciary has
found that the language used by the Legislature conveys an intent different from that
Page No. 112 of 116

which was sought to be conveyed by it. The Legislature which establishes a particular
Court may also, if
it so desires, abolish it." (Underlining is mine).
This Court, undoubtedly, decides cases involving interpretation of the Constitutional

provisions in its capacity as administrator of the will of the people. This interpretation
becomes a part and parcel of the Constitution and the law which, in turn, shall be
obeyed/followed by all and padre ,in letter and spirit
Side by side, it may also be noted that well-established conventions' and practices
have always been treated as part of the Constitution provided they do not
violate/contravene the provisions of a written Constitution. It was so held by this Court in
Al-Jehad Trust's case (supra). The consistent practice in the past has been that the
appointments in the superior Judiciary were made by the President on the advice of the
Prime Minister. Nonetheless, deviation to the above convention had been made during the
period when there existed Presidential form of Government in the country. Even after the
introduction of Eighth Amendment, from 1985 onward, such appointments were made by
the ?resident in accordance with the advice of the Prime Minister. It may, :n particular, be
noted that this method continued to exist even during the lifetime of the person (Gen.
Muhammad Ziaul Haq) who was responsible for the enactment of Eighth Amendment.
On 9th of March 1987, a batch of six Judges was elevated on the explicit advice of the
then Prime Minister. The then President, Gen. Muhammad Ziaul Haq did not object to the
advice of the Prime Minister on the ground that he had the exclusive powers to make
such appointments. It may be seen that under Articles 90 and 99, Rules of Business, 1973
were framed. These rules are still in force. The rules show beyond doubt that it is the
Prime Minister who shall propose and recommend the names of the candidates for their
appointment as Judges. Rule 15-A of the Rules of Business may be referred. The validity
of these Rules had never been challenged by any person. Even in these marathon
proceedings, none came out to challenge the vires of these rules referred to above. These
rules, as such are an essential appratus/machinery to run the affairs of the country unless,
it is shown that they are in contravention of the Constitution itself under which they have
been framed by the President on the advice of the Prime Minister. It may not, however,
be understood that these rules are equal to the Constitution status-wise.
In these circumstances, I support the view of the Hon'ble Chief Justice that Article
204 of the Constitution will be attracted to take action against the Y person/persons who
do not intend to implement the judgment of this Court. The Y Constitutional provisions
on the subject have been interpreted in the case of AlJehad Trust v. Federation of Pakistan
PLD 1996 SC 324. A detailed procedure regarding the appointments of Judges has been
mentioned in the case which is:---
(i) The words "after consultation" employed inter alia in Articles 177 and 193 of the
purposive, consensus-oriented, leaving no room for complaint of arbitrariness or
unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a
High Court as to the fitness and suitability of a candidate for judgeship is entitled to
be accepted in the absence of very sound reasons to be recorded by the
(ii) That if the President/Executive appoints a candidate found to be unfit and unsuitable
for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court
concerned, it will not be proper exercise of power under the relevant Article of the
Constitution.
(iii) That the permanent vacancies occurring in the offices of Chief Justice and Judges
normally should be' filled in immediately not later than 30 days but a vacancy
occurring before the due date on account of death or for any other reasons, should be
filled in within 90 days on permanent basis.
(iv) That no ad hoc Judge can be appointed in the Supreme Court while permanent
vacancies exist.
Page No. 113 of 116

(v) That in view of the relevant provisions of the Constitution and established
conventions/practice, the most senior Judge of a High Court has a legitimate
expectancy to be considered for appointment as the Chief Justice and in the absence
of any concrete and valid reasons to be recorded by the President/Executive, he is
entitled to be appointed as such in the Court concerned. `
(vi) An Acting Chief. Justice is not a consultee as envisaged by the relevant Articles of
Constitution and, therefore, mandatory Constitutional requirement of consultation is
not fulfilled by consulting an Acting Chief Justice except in case the permanent
Chief Justice concerned is unable to resume his functions within 90 days from the
date of commencement of his sick leave because of his continuous sickness.
(vii) That Additional .judges appointed in tile High, Court against permanent vacancies or
if permanent vacancies occur while they are acting as Additional Judges, acquire
legitimate expectancy and they are entitled to be considered for permanent
appointment upon the expiry of their permanent appointment as Additional Judges
and they are entitled to be ' appointed as such if they are recommended by the Chief
Justice of the High Court concerned and the Chief Justice of Pakistan in the absence
of strong valid reason/reasons to be recorded by the President/Executive.
(viii) That an appointment of a sitting Chief Justice of a High Court or a Judge thereof in
the Federal Shariat Court under Article 203-C of the Constitution without his consent
is .violative of Article 209, which guarantees the tenure of office. Since the former
Article was incorporated by the Chief Martial Law Administrator and the latter
Article was enacted by the Framers of the Constitution, the same shall prevail and,
hence; such an appointment will be void.
(ix) That transfer of a Judge of one High Court to another High Court can only be made
in, the public interest and not as a punishment.
(x) That the requirement of 10 years' practice under Article 193(2)(a) of the Constitution
relates to the experience/practice at the Bar and not simpliciter the period of
enrolment.
(xi) That the simpliciter political affiliation of a candidate for judgeship the superior
Courts may not be a disqualification provided the candidate is of an unimpeachable
integrity, having sound knowledge in law and is recommended by the Chief Justice of the
High Court concerned and the Chief Justice of Pakistan.
(xii) That it is not desirable to. send a Supreme Court Judge as an Acting Chief Justice to
a High Court in view of clear adverse observation of this Court in the case of Abrar
Hassan v. Government of Pakistan and° others PLD 1976 SC 315 at 342. '
(xiii) That since consultation for the appointment/confirmation of a Judge of a Superior

Court by the President/Executive with consultees mentioned in the relevant Articles
of the Constitution is mandatory any appointment/confirmation made without
consulting any of the consultees as interpreted above would be violative of the
Constitution and, therefore, would be invalid."
This being the position, such recommendations/consultation cannot by any stretch of

imagination be ignored and as such, shall have to be treated as final qua the aforesaid
Judicial appointments. The Chief Justice of Pakistan, being the Head of the Judiciary has
the right of primacy on the issue. There might be cases of fraud or misrepresentation
wherein it could be shown that the candidates for judgeship were not entitled to be
appointed for lack of qualifications. In that case, Chief Justice may review his earlier
recommendations on the basis of documentary evidence disclosing fraud or
misrepresentation. The fraud surely vitiates even the most solemn proceedings. On the
contrary, opinion of the Chief Justice shall hold the field and has to be treated as the last
word on the controversy. As stated above, the question about appointment of Judges has
been decided in Al-Jehad Trust's case (supra) leaving no room for any doubt. This is the
law of the land. The Judges in Superior Courts shall, therefore, be appointed strictly in
accordance with this law. In this view of the matter,. the advice of the Prime Minister
Page No. 114 of 116

shall be accepted by the President provided it is in accordance with the rule laid down in
case of Al-Jehad Trust (supra).
From the above, the conclusions which may be drawn are:---
(i) On the basis of the preamble and the Objectives Resolution (Article 2A), the system
of Government which. emerges therefrom is Parliamentary.
(ii) The representatives of the people are to be chosen in free, fair, just and honest
elections to be conducted by the Chief Election Commissioner vide Articles 213 to
226 of the Constitution. Prime Minister is the
leader of the Parliamentary majority party in the National Assembly. He/she is the leader
of the chosen representatives of the people having full powers to run the affairs of the
Federation.
(iii) Before the promulgation of Eighth Amendment, there was no dispute on the powers
of the Prime Minister to give advice to the President for appointment of Judges. Such
advice was binding on the President.
(iv) After the enactment of Eighth Amendment, there is no substantial change in clause
(1) of Article 48. Articles 177 and 193 of the (; Constitution were not amended. The
position being the same, the advice C of the Prime Minister shall be of binding
effect.
(v) The President has been assigned some specific powers to be exercised by him in his
discretion for which, in my view, there is no ambiguity in the Constitution. This may
be seen. from close reading of the Constitution Eighth Amendment Act, 1985. The
most important power which has been conferred on the President under the Eighth
Amendment is the one to dissolve the National Assembly under Article 58(2)(b) of
the Constitution.
(vi) It has been the established convention that the appointments of Judges were made
by the President on the advice of the Prime Minister. -
On 4-12-1996, unanimously, following short order was passed:--- .
"For the reasons to be recorded later, we hold that for the appointments of Judges of the
superior Courts under Articles 177 and 193, Article 48(1) of the Constitution is attracted
and the President shall act in accordance with the same provided it is in accordance with
the judgment in the case of Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324.
The Reference and the two Constitutional petitions are disposed of in the above terms. "
The above are my reasons in addition to the reasons advanced by the Hon'ble Chief
Justice in his judgment with which I have already concurred.
M.B.A./A-1431/S Petitions disposed of
Page No. 115 of 116

1989 C L C 1692
[Lahore]
Before Rustam S. Sidhwa, J
Messrs NISHAT MILLS Ltd.--Petitioner
versus
GOVERNMENT OF PAKISTAN and others=-Respondents
Writ Petitions Nos. 4449, 4503, 4504, 4505, 4754 and 4790 of 1987, decided on 29th
February, 1988.
(a) Customs Act (IV of 1969)--
---S. 19--Federal Government's Notification No. S.R.0.674 (1)/80, dated 26th June,
1980--S.R.0.486(1)/87, dated 12th June, 1987--General Clauses Act (X of 1897),
S.21--Cotton yarn--Exemption from payment of export duties--Such exemption
subsequently withdrawn by rescission of earlier notification, dated 26th June, 1980 by
fresh notification, dated 12th June, 1987 whereby cotton yarn was made leviable to
tax--'Vested right--Effect--Exemption once granted could not be rescinded where a
derisive step had been taken and exemption had been given effect to and acted
upon--Powers derived under S.21, General Clauses Act to amend, vary or rescind a
notification could not have retrospective effect, so as to affect vested rights--Where
impugned notification was passed when industrial undertaking had gone into operation
and exemption given under earlier notification had become effective, it was too late for
Government to retrace its steps and rescind the exemption--Contracts entered into by
exporters with foreign importers prior to rescission of tax on cotton yarn on faith of
representation made by Federal Government under its earlier notification that cotton yarn
exported by them would not be liable to any export duty and exporters having acted upon
faith of that representation, Federal Government was bound by principle of promissory
estoppel and as such retrospectively destroy vested rights by imposing its subsequent
notification.
Mardan Industries Ltd. Sakhakot Malakand Agency and another v. Government of

Pakistap_ and others P L D 1965 Pesh. 47; Collector of Central Excise and Land Customs
and 3 others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC 439; Messrs M. Afzal
and others v. Federal Government of Pakistan, Islamabad P L D 1978 Lah. 468;
Federation of Pakistan v. Ch. Muhammad ,slam 1986 SCMR 916; Al-Samrez Enterprises
v. The Federation of Pakistan 1986 SC MR 1917 ref.
(b) Constitution of Pakistan (1973)--
---Arts.5(2), 189 & 190--Law declared by Supreme Court to be binding on all Courts in
Pakistan--All executive and judicial authorities throughout Pakistan are bound to act in
aid of Supreme Court--Contumacious disrespect of the law declared by the Highest
Courts deserves to be taken note of seriously.
Ch. Siddiq Hussain for Petitioner.
Qadeer Ahmad Saddiqui for Respondents.
JUDGMENT
This judgment will dispose of the under noted six writ petitions.
(1) Writ Petition No. 4449 of 1987 M/s. Nishat Mills Ltd. v. Government of
Pakistan etc.
(2) Writ Petition No.4503 of 1987--M/s. Kohinoor Textile Mills Ltd. v.
Page No. 1 of 8
Government of Pakistan etc.
(3) Writ Petition No.4504 of 1987 M/s Chakwal Textile Mills Ltd. v.
Government of Pakistan.
(4) Writ Petition No.4505 of 1987.--M/s Kohinoor Spinning Mills Ltd. v.

(5) Writ Petition No.4754 of 1987.--M/s. Ishaq Textile Mills Ltd.
(6) Writ Petition No.4790 of 1987--M/s Khawaja Textile Mills Ltd. v.

to restrain the Customs Authorities at Lahore and Karachi from demanding export duty
under Notification S.R.O. 486(1)/1987, dated 12th June, 1987 and Notification
S.R.0.768(I)/1987, dated 22nd September, 1987 on various shipments of cotton yarn
being exported by them and to restrain the Customs Authorities from levying or charging
any export duty in relation to the contracts and the letters of credit referred to in the said
petitions.
2. The brief facts of the case are that in 1980, under item No.14 in the Second Schedule to
the Customs Act, 1969, (Export Tariff), export duty at the under noted rate was leviable
on cotton yarn exported from Pakistan.
14. Cotton Yarn. Duty
(A) of counts 21 to 24 88 paisa per Kilogram Plus 40 per cent ad

valorem subject to a maximum of Rs.12 per
kilogram
(b) Other 40 per cent ad valorem subject to a maximum

of Rs.ll per Kilogram."
3. On 26th June, 1980, the Federal Government vide its Notification S.R.O.
674(1)/80 issued under section 19 of the Customs Act, 1969, fully exempted cotton ; am
appearing in item No.l4 of the Second Schedule of the Customs Act from payment of all
export duties by substituting the entry "Free" in column 3.
4. On 12th June, 1987, the Federal Government vide its Notification S.R.O. 486(1)/87
issued under section 19 of the Customs Act, 1969, amended the notification, dated 26th
June, 1980 by substituting for the entry "Free" in column No.3 against Item No.14 in
column No.l, the entry "Rs.5 per Kilogram". The effect of the notification was to make
cotton yarn leviable to export duty at Rs.5 per Kilogram which previously was totally
exempt.
5. On 13th June, 1987, the Federal Government vide its Notification S.R.O. 489(1)/87
June, 1980 by adding the under noted proviso thereto.
"Provided that `Cotton Yarn' appearing in column 2 against item No.14 in column No.l of
the table, in respect of which irrevocable letters of credit for export were establised prior
to 12th June, 1987, shall be exempted from the whole of the Customs duties chargeable
thereon."
On Ist July, 1987, the Federal Government vide its Notification S.R.O. 546(1)/87, omitted
the proviso which was added on 13th June, 1987.
6. On 22nd September, 1987, the Federal Government vide its Notification

S.R.0.768(I)/87 issued under section 19 of the Customs Act, 1969, amended notification,
dated 26th June, 1980 by substituting the entry "Rs'10 per Kilogram" in column No.3 for
the entry "Rs.5 per Kilogram" in column 3, against item 14 in column 1 of the Second
Schedule of the Customs Act.
Page No. 2 of 8
7. On 17th November, 1987, the Federal Government vide its Notification
S.R.0.900(1)/87 issued under section 19 of the Customs Act, 1969, amended the
notification, dated 26th June, 1980 by adding the following proviso thereto:-
"Provided that cotton yarn in respect of which irrevocable letters of credit for export were
established and which have not been amended or extended, shall be exempted:-
(i) from the whole of the Customs duties chargeable thereon, if such letters of credit
were established before the 4th June, 1987, and such cotton yarn was shipped from 1st
July, 1987, to 30th September, 1987; and
(ii) from so much of the Customs duties chargeable thereon as are in excess of Rs.5
per Kilogram, if such letters of credit were established on or after the 4th of June, 1987,
but before the 22nd September, 1987, and such cotton yarn has been or is exported from
22nd September, 1987 to 21st December, 1987."
8. On 19th November, 1987, the Federal Government vide Notification Customs

S.R.0.905(I)/87 issued under section 19 of the Customs Act, 1969, amended the
notification, dated 26th June, 1980 by substituting the earlier proviso with the following:
established from the country to which it was to be exported and which have not been
amended in respect of quantity and opening date, shall be exempted:-
(i) from the whole of the customs duties chargeable thereon, if such letters of credit
were established before the 12th June, 1987, and such cotton yarn was shipped before
30th September, 1987; and
(ii) from so much of the customs-duties chargeable thereon as are in excess of Rs.5
per kg., if such letters of credit were established before the 22nd September, 1987, and
such cotton yarn has been or is, exported before 31st December, 1987."
9. On 22nd December, 1987, the Federal Government by its Notification S.R.O.

942(1)/87 issued under section 19 of the Customs Act, 1969, amended the notification,
dated 26th June, 1980 by substituting the earlier proviso with the following namely:-
established and which have not been amended in respect of quantity and opening date,
shall be exempted:-
(i) from the whole of the customs duties chargeable thereon, if such letters of credit
were established before the 12th June, 1987, and such cotton yarn was shipped before
30th September, 1987, and
(ii) from so much of the customs duties chargeable thereon as are in excess of Rs.5
per kg., if such letters of credit were established before the 22nd September, 1987, and
such cotton yarn has been or is, exported before 31st December, 1987."
10. On 6th January, 1988, the Federal Government vide its Notification S.R.0.8(1)/88
June, 1980 as follows:-
"(1) Against item No.14 in column 1, in column 3, for the Entry "Rs.10 per kg. the
Entry Seventeen and half per cent ad valoram subject to maximum of Rs.10 per kg. shall
be substituted, and
(II) at the end of the table, the proviso shall be omitted.
This notification shall take effect on the 1st January, 1988."
Page No. 3 of 8
11. The case of the petitioners is that in respect of cotton yarn exported by them which
were covered by contracts entered into by them prior to 12th June, 1987 or in respect of
which irrevocable letters of credit were opened by the foreign importers before 12th June,
1987, they were not liable to pay any export duties, even though shipments were effected
after 12th June, 1987 and in respect of cotton yarn exported by them which were covered
by contracts entered into by them after 12th June, 1987 but prior to 22nd September,
1987 or in respect of which irrecovable letters of credit were opened by the foreign
importers during that period, they were not liable to pay export duties over and above
Rs.5 per Kg., even though shipments were effected after 22nd September, 1987.
12. With regard to the first category of cases it is submitted that contracts entered into by
the petitioners with foreign importers prior to 12th June, 1987 were made on the faith of
the representation made by the Federal Government under its notification, dated 26th
June, 1980 that cotton yarn would not be liable to any export duty and that the petitioners
having acted upon that representation under the belief that the Federal Government would
stand by it, they cannot now be penalised by the imposition of notification, dated 12th
June, 1987 as the Government are bound by the principle of promissory estoppel.
Likewise, in the same manner it is pleaded with regard to the second category of cases
that the Government is bound by the promissory estoppel and the imposition of the
notification dated 22nd September, 1987 does not affect the contracts entered into by
them before that date. It is also submitted that in respect of contracts entered into prior to
12th June, 1987 and in respect of which irrevocable letters of credit were opened prior to
that date, the petitioners were entitled to the exemption arising nut of Government's
notification, dated 26th June, 1980 and a vested right having accrued in their favour out
of the said notification, the same could not be taken away by notification, dated 12th
June; 1987 merely because shipments were effected later. Likewise it is submitted that in
respect of the contracts entered into after 12th June, 1987 but before 22nd September,
1987 and in respect of which irrevocable letters of credit were opened during this period,
the petitioners were entitled to the payment of the lower export duty of Rs.5 per Kilogram
arising out of Government's notification, dated 12th June, 1987 and a vested right having
accrued in their favour out of the said notification, the same could not be taken away by
notification, dated 22nd September, 1987, merely because shipments were effected later.
In this connection, Mardan Industri, Ltd. Sakhakot Malakand Agency and another v.
Government of Pakistan and others PLD 1965 Pcsh. 47, Collector of Central Excise and
Land Customs and three others v. Azizuddin Industries Ltd., Chittagong PLD 1970 SC
439, Messrs M. Afzal and others v. Federal Government of Pakistan, Islamabad PLD
1978 Lah. 468, Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCMR 916 and
Al-Samrez Enterprises v. The Federation of Pakistan 1986 SCMR 1917 have been cited.
13. On behalf of the Customs Authorities, it is submitted that export duties are payable
under section 31 of the Customs Act when the bills of export covering goods to be
exported are presented to the Customs Authorities before loading the goods for
exportation and that where such bills of export relating to yarn shipped by the petitioners
have been presented on or after 12th June, 1987, export duty of Rs.5 per Kilogram is
payable and where such bills of export have been presented on or after 22nd September,
1987, export duty at the rate of Rs.10 per Kilogram is payable, subject to the contents of
the other notifications issued from time to time which may be applicable to the bills of
export on the dates of their presentation.
14. In view of the law already declared on the subject by the Supreme Court of Pakistan
and by this High Court, I directed the learned counsel for the Customs Department on
27th January, 1988 to discuss all these cases with the Customs Authorities and to bring to
their notice the law declared on the subject, so that they could process the same
accordingly. On the said date I also ordered that the learned counsel for the Customs
Department should telephonically get in touch with the respondents and request them to
depute their representative to discuss the case of all the consignments which were
mentioned in the five petitions with him. I also orally intimated to the counsel that I
would impose heavy compensatory costs on the Customs Department, if I found later that
it was flouting the law declared by the Supreme Court and unnecessarily harassing the
petitioners. However, notwithstanding the said assurance given by the learned counsel
and my order, the learned counsel for the Customs Department was not able to secure any
Page No. 4 of 8
co-operation' from the Customs Department. Accordingly, I had to fix the cases for
arguments.
15. 1 have heard the arguments of the warned counsel for the petitioners and the Customs
Authorities and have also perused the documents filed by the parties. The law on the
subject already has been laid down by the Supreme Court of Pakistan and the Lahore and
the Peshawar High Courts. Since the matter involved was only legal, on the last two
hearings I had directed counsel for both the parties to address formal arguments in the
case, so that all these cases could be disposed of as notice cases. Arguments were
addressed accordingly. Whilst, admitting all these cases, I would dispose them of as
notice cases.
16. In Mardan Industries Ltd. v. Government of Pakistan PLD 1965 Pesh. 47, the Central
Government in 1961, exempted for a period of four years with effect from 1st July, 1961,
all excisable goods produced or manufactured in the Special and Excluded areas
mentioned in the Schedule from the whole of the excise duty leviable thereon. On the
strength of the said notification, the Mardan Cigarettes Industries set up a plant for the
manufacture of cigrettes. The company went into production in 1964. When the cigarettes
were exported to the settled areas they were seized for payment of excise duty. The
company ficd a writ petition, which was admitted to hearing. Meanwhile on 17th May,
1963, the Central Government issued a notification in super session of the first
notification, making inroads into the first notification. On 19th May, 1964, the Central
Government issued another notification adding a proviso to the notification of 17th May,
1963. The Peshawar High Court held that the Government could not rescind the
exemption where a decisive step had been taken and the exemption had been given effect
to and acted upon. It further held that the powers derived under section 21 of he Central
Clauses Act to amend, vary or rescind a notification could not have retrospective effect,
so as to affect vested rights. It held that the impugned notification was passed when the
industrial undertaking had gone into operation and as such exemption given under the
said notification had become effective and it was too late for the Government to retrace
its steps and rescind the exemption.
17. In Collector of Central Excise and Land Customs and others v. Azizuddin Industries
Ltd., Chittagong PLD 1970 SC 439, the Central Government in 1961 exempted for a
period of four years with effect from 1st July, 1901, all excisable goods produced and
manufactured in the Special and Excluded areas mentioned in the Schedule, from the
whole of the excise duty leviable thereon. The respondent-company thus set up a factory
in the Special and Excluded area of the Chittagong Hill Tracts. On 26th December, 1961
the Central Board of Revenue restricted the exemption granted to the extent that it would
not extend to unmanufactured products removed from the exempted areas to any other
area in Pakistan. On 17th May, 1963, the Central Board of Revenue issued a fresh
notification substantially in the same terms as the earlier notification of 30th June, 1961,
with the exception that in confirmity with the 1962 Constitution, which had in the
meantime come into force, the words "Special and Excluded areas" in the Schedule to the
earlier notification were substituted by the words "Tribal Areas" as defined in Article 242.
With the coming into force of the Constitution (First Amendment) Act, 1964, which
excluded the Chittagong Hill Tracts from the definition of Tribal Areas, the Central Board
of Revenue vide its letter, dated 28th February, 1964 intimated to the respondent factory
that it will be subject to excise duty. On the same date i.e. 28th February, 1964, the
Central Board of Revenue issued a notification withdrawing the exemption in respect of
excisable goods manufactured in the tribal areas, which bore brand or trade names or
trade marks under which similar goods manufactured in any area of Pakistan other than
the said tribal area were also marketed, if such goods were removed from the tribal area
to any other area in Pakistan. On 19th May, 1964, the Central Board of Revenue issued
another notification amending the earlier notification of 17th May, 1963 in the same
terms as the notification of 28th February, 1964. The Supreme Court held that the
respondent-company had acquired a vested right of exemption from the levy of the excise
duty on all the goods produced or manufactured by it for a period of four years under the
1961 notification, which vested right could not be taken away by the notification of 28th
February, 1964. It held that the Chittagong Hill Tracts continued to be included in the
Schedule to the notification of 17th May, 1963 granting exemption from payment of
excise duty leviable on the :goods produced and manufactured by the respondent
Page No. 5 of 8
company. However, since the notification of 19th May, 1964 amended the notification of
17th May, 1963, it held that excise duty was exempt upto 19th May, 1964, but for the
period thereafter the respondent-company was liable to pay excise duty on cigarettes
which bore brand names under which similar cigarettes manufactured outside the tribal
area were marked in respect of such cigarettes which were transported from the tribal
area to any other area in Pakistan.
18. In Messrs Muhammad Afzal & Sons v. Government of Pakistan PLD 1978 Lah. 468
the petitioners had placed orders to import white wood free writing paper from different
countries on various duties ranging between 7th June, 1975 and 16th September, 1975 in
pursuance of notification, dated 7th June, 1975, which exempted the said paper from
payment of import duties. The imports had been effected against letters of credit which
had been opened prior to 16th September, 1975, when another notification had issued
re-calling the earlier notification granting exemption. The Court held that the exemption
notification created a vested right in favour of the petitioners, which could not be taken
away by the subsequent notification, which being subordinate legislation could not be
applied retrospectively. The Court accordingly held that the petitioners were not entitled
to pay any import duties.
19. In Federation of Pakistan v. Ch. Muhammad Aslam 1986 SCMR 916, the question
before the Supreme Court was whether the respondents, who had acted on the Gift
Scheme as in force before 20th March, 1983 and the Press Note, dated 16th July, 1978
and had earned a right to get the import licence for importing truck chassis, could be
denied that right by the Federal Government by retrospectively applying the revised
definition of "New" as contained in the Press Note dated 20th March, 1983. By invoking
the principle of promissory estoppel. the Supreme Court held that the respondents had
acquired vested rights which could not be overridden by the Federal Government by a
disposition given in the I form of a declaration, without expressly legislating in the
matter.
20. In AI-Samrez Enterprises v. The Federation of Pakistan 1986 SCMR 1917, the
question before the Supreme Court was whether certain items of machinery or articles for
use with machinery or as component parts or spare parts of machinery, which were
partially exempt from customs duties under notification, dated 8th June, 1972, were liable
to higher import duty by virtue of the amendment notification, dated 11th June, 1977, if
the bill of entry relating to the said goods was filed with the customs later than 11th June,
1977. The Supreme Court held that as a binding contract had been concluded between the
appellant and the foreign exporter before the amendment notification came out on 11th,
June, 1977 and steps were taken by the appellant creating a vested right to the notification
dated, 8th June, 1972 granting exemption, the same could not be taken away and
destroyed by the subsequent notification. It was held that a vested right which was
created in favour of the appellant could not be taken away by the subsequent withdrawal
of exemption, by giving retrospective operation to an executive act to destroy that right.
21. In view of the law declared, as stated above, it is clear that the contracts entered into
by the petitioners with foreign importers prior to 12th June, 1987 were made on the faith
of the representation made by the Federal Government under its notification, dated 20th
June, 1980 that the cotton yarn exported by them would not be liable to any export duty
and that the petitioners having acted upon the faith of that representation, the Federal
Government is bound by the principle of promissory estoppel and cannot retrospectively
destroy vested rights by imposing its notification, dated 12th June, 1987. Likewise, in the
same manner contracts entered into by the petitioners with foreign importers on or after
12th June, 1987 but before 22nd September, 1987 cannot also be defeated by the "
notification dated 22nd September, 1987. The action of the respondents in I demanding
export duties in both the cases is illegal.
22. In all the six petitions before me, relying upon the dates of the irrevocable letters of
credit opened by the foreign importers in their favour as the crucial dates for the purposes
of the application of the law declared, instead of the dates of their contracts concluded
with their foreign importers, the petitioners have claimed reliefs on the basis of the said
letters of credit. In accordance with their pleadings, I would deal with the cases treating
the dates of irrevocable letters of credit, as material to their cases.
Page No. 6 of 8
23. I would, therefore, hold, notwithstanding any benefit that may accrue to the
petitioners out of the notifications, dated 17th November, 1987, 19th November, 1987
and 2nd December, 1987, that in respect of contracts entered into by the petitioners with
foreign buyers which were duly registered with the Export Promotion Bureau and in
respect of which irrevocable letters of credit were opened by the foreign buyers in favour
of the petitioners in respect of cotton yarn prior to 12th, June, 1987, the petitioners are
not liable to pay export duties, even though bills of export were presented to the Customs
after 12th June, 1987, provided that such letters of credit were not amended to alter the
opening date or to increase the quantity. Likewise, in respect of contracts entered into by
the petitioners with their foreign buyers which were duly registered with the Export
Promotion Bureau and in respect of which irrevocable letters of credit were opened by
the foreign buyers in favour of the petitioners in respect of cotton yarn on or after 12th
June, 1937 but prior to 22nd September, 1987, the petitioners are not liable to pay export
duties over and above Rs.5 per Kilogram, even though bills of export were presented to
the Customs after 22nd September, 1987, provided that such letters of credit were not
amended to alter the opening date or to increase the quantity.
24. The only question that arises is as to what will be the position if the letters of credit
arc extended. In respect of such large consignments of cotton yarn that have to be shipped
by the present petitioners, as arc mentioned in these petitions, need for extension of credit
may arise if the petitioners are not able to secure shipping space or arc not able to honour
their promise; for any other good cause. In such cases the; petitioners may request for
extension of credit, which may be granted by the foreign buyers. The Central Board of
Revenue, by notification dated 17th November, ;1987, allowed late shipments provided
the irrevocable letters of credit were not amended or extended, but later by notifications,
dated 19th November, 1987 and 21st Decembcr, 1987 permitted extensions, provided the
irrevocable letters of credit were not amended in respect of quantity and opening date.
The Government has thus recognized that extensions of letters of credit are a normal
feature of export business. Letters of credit usually provide separate dates, for shipment
and negotiation. The first date is the date normally referred to for the purpose of
extension of the letter of credit i.e. the last date by which the shipment is to be made, so
as to bind the foreign
buyer to the terms of his letter of credit, including that relating to payment. The
notifications dated 19th November, 1987 and 21st December, 1987 provide that no export
duty shall be levied, within the terms of the said two notifications provided that the
opening dates of the letters of credit remain the same i.e. the letters of credit are not
renewed after expiry and no amendments are made in respect of the quantity of yarn to be
exported. I would, therefore, hold that where irrevocable letters of credit have not been
renewed after their expiry or amended to increase the quantity of goods, the respondents
shall not charge export duty as stated in para. 23 above, notwithstanding that letters of
credit may have been amended to extend the dates of shipment.
25. All the petitioners shall be entitled to their costs, including counsel's fee at Rupees
Five Thousand per case.
26. Before concluding, I would like to mention that the manner in which the Central
Board of Revenue has flouted the law declared by the Supreme Court, leaves much to be
desired. Under Article 5(2) of the Pakistan Constitution, 1973, obedience to the
Constitution and the law is the inviolable obligation of every citizen and of every other
person resident in Pakistan. I am not aware that the departments of the Slate are exempt
from such obligation. Since under Article 189 of the Constitution, the law declared by the
Supreme Court of Pakistan is binding on all Courts in Pakistan and under Article 190 of
the Constitution, all executive and judicial authorities throughout Pakistan are bound to
act in aid of the Supreme Court, one would assume that all organs of the State are duty
bound to act in aid of the law declared by the Supreme Court and not flout it. One would
expect that the Central Board of Revenue, with its full fledged legal cell, is aware of all
laws declared by the superior Courts of Pakistan relating to the subjects within their
jurisdiction and does not ignore these declarations when framing or amending the law,
rules and notifications on the subject. It appears that the Central Board of Revenue was
aware of the rulings of the Supreme Court, Peshawar High Court and the Lahore High
Court. This is apparent from the Federal Government's Notification S.R.O. 489(1)/87,
Page No. 7 of 8
dated 13th June, 1987 which exempted cotton yarn from export duties if letters of credit
had been opened before 12th June, 1987. However, in contumacious disregard of the law
declared, the said notification was withdrawn within less than three weeks, vide
Notification S.R.O. 546(1)87, dated 1st July, 1987, leaving the petitioners with the
unpleasant duty of having to knock at the doors of this Court. When on 27th January,
1988, the learned counsel for the respondents was directed to discuss all these cases with
the Customs Authorities and to bring to their notice the law declared on the subject, so
that they could process these cases by the next date of hearing, in accordance with the
law declared, the learned counsel was not able to receive any co-operation from the
Customs Authorities and I had to fix these cases for arguments. My oral warning that I
would impose compensatory costs on the respondents, if I found later that they were
deliberately not applying the law declared, fell on the deaf ears. Contumacious disrespect
by the respondents of the law declared by the highest Court of the land deserves to be
taken note of seriously. The Customs Authorities, therefore, deserve to be penalized with
heavy costs to compensate for the demurrage suffered by the petitioners by the action of
the respondents and the heavy financial losses suffered by them in locking up their capital
in order to furnish bank guarantees to get their shipments released for export. Unlike the
respondents, who are none too lenient with their transgressors, I would, without being
hard, impose nominal compensatory costs on the respondents at the rate of rupees one
thousand (Rs.1,000) for each shipment in respect of which the petitioners were compelled
to furnish bank guarantees to secure release of their goods, pursuant to interim orders
issued by this Court; such compensatory costs to be payable by the respondents to the
petitioners in all the sic cases on all the consignments in respect of which bank
guarantees were filed by them.
27. Subject to scrutiny, the bank guarantees furnished by the petitioners shall stand
discharged. The Collectors of Customs and Appraisement concerned shall take immediate
steps to discharge the bonds furnished by all the petitioners within a fortnight.
28. The petitioners shall file their statements of costs and compensatory costs within a
fortnight, to enable the Taxing Officer of this Court to draw up the decree of costs
payable to the petitioners. Such costs and compensatory costs shall be deposited by the
respondents in Court within a month, to enable the petitioners to draw the same
thereafter.
A.A./N-197/L Petitions accepted.
Page No. 8 of 8
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1
Page No. 1 of 1

Binding Effect of SC

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Binding Effect of SC

Uploaded by

Copyright:

Available Formats

2011 P L C (C.S.

[Sindh High Court]

Before Sajjad Ali Shah and Shahid Anwar Bajwa, JJ

ABDUL HUSSAIN KORAI and 82 others

PROVINCE OF SINDH through Chief Secretary Government of Sindh and 2 others

Constitutional Petition No.D-1302 of 2010, decided on 7th October, 2010.

(a) Constitution of Pakistan---

----Provincial Legislature---No Province could be obliged to make a particular provision

(c) Civil service---

----Contract employee released upon completion of project---Validity---Such release

Sarfraz Ahmed v. Government of Sindh, 2006 PLC (C.S.) 1304 distinguished.

Abdul Mujeeb Pirzada, Shabbir Ahmed Awan for Petitioners.

Nariandas C. Motiani for Respondent No.2.

Adnan Karim, A.A.-G.

Date of hearing: 5th October, 2010.

(2) Learned counsel referred to newspaper clipping (Dawn of June 7, 2009) to

7. Mr. Adnan Karim, learned A.A.-G. relied upon Government of Balochistan,

"He is right in stating that, in law, there is no concept of reinstatement of an ad

"The proposed Additional Financing is expected to go to Board for consideration

S.A.K./A-114/K Petition dismissed.

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Ch. Ijaz Ahmed, JJ

DISTRICT EDUCATION OFFICER (M.E.E.), LAHORE and another---

Civil Appeal No. 592 of 2006, decided on 2nd October, 2009.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 5 & 6---Constitution of Pakistan, Art.212(3)---Leave to appeal was granted by

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

---Rr. 5 & 6---Removal from service---Imposing of major penalty---Concealing of facts---

(c) Constitution of Pakistan---

(d) Administration of justice---

----Application of correct law---Improper advice of counsel---Effect---Judge must wear

Muhammad Sarwar's case PLD 1969 SC 278 rel.

Mian Mahmood Hussain, Advocate Supreme Court for Appellant.

Date of hearing: 2nd October, 2009.

"Whereas Mst. Raheela Arjumand, SST/Headmistress, Government Shah Din

(i) Zulfiqar Ali's case (2006 SCMR 678)

(ii) Abdul Waheed's case (2004 SCMR 303)

(iv) Abdul Hafeez Abbasi's case (2002 SCMR 1034)

M.H./I-21/SC Appeal allowed.

[Supreme Court of Pakistan]

Present: Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ

SECTION OFFICER, GOVERNMENT OF PUNJAB, FINANCE

Civil Appeal No.381-L of 2009, decided on 5th April, 2010.

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

(b) Punjab Civil Services Pension Rules, 1955---

----R. 3.5, Note-I---ESTACODE, 2003 Edition (Punjab), page 690---Leave preparatory

(c) Administration of justice---

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

----Arts. 189 & 190---Judgment of Supreme Court---Binding effect---Judgment of

Muhammad Iqbal's case 1984 SCMR 334 rel.

Muhammad Hanif Khattana, Additional Advocate-General for Appellants.

Mian Shah Abbas, Advocate Supreme Court for Respondent.

Date of hearing: 5th April, 2010.

2. Respondent submitted an application under the subject `request for cancellation of

"Learned Law Officer, on merits, submitted that the respondent voluntarily

4. Learned Additional Advocate General submits that impugned judgment is not in

PUNJAB ESTACODE, RULE 3.5 NOTE-I:

M.H./S-17/SC Appeal allowed.

[Supreme Court of Pakistan]

GOVERNMENT OF PAKISTAN, MINISTRY OF EDUCATION through Secretary

Civil Petition No.1587 of 2008, decided on 4th August, 2009.

Civil Servants Act (LXXI of 1973)---

----S. 10---Constitution of Pakistan (1973), Arts.185(3)---Deputation---Repatriation to