P L D 1998 Supreme Court 1445

P L D 1998 Supreme Court 1445 https://pakistanlawsite.com/Login/PrintCaseLaw?
caseName=1998S20
P L D 1998 Supreme Court 1445
Present: Ajmal Mian, C.J., Saiduzzaman Siddiqui

Irshad Hasan Khan, Raja Afrasiab Khan
and Muhammad Bashir Jehangiri, JJ
MEHRAM ALI and others---Petitioners
versus
FEDERATION OF PAKISTAN and others---Respondent
Civil Petition No.251 of 1998, Constitutional Petitions Nos. 15, 20, 21, 26, 36, 61 of 1997; Civil
Petitions Nos. 1129 of 1997 and 423 to 431 of 1998, decided on 15th June, 1998.
Agmal Mian, C.J.; Saiduzzaman Siddigui; Irshad Hasan Khan. Raga Afrasiab Khan and Muhammad
Bashir Jehangiri, JJ. agreeing-
(a) Anti-Terrorism Act (XXVII of 1997)---
----S. 5(2)(i)---Use of Armed Forces and Civil Armed Forces to prevent terrorism---Provision of
S.5(2)(i), Anti-Terrorism Act, 1997 is invalid to the extent it authorises the Officer of Police, Armed
Forces and Civil Armed Forces charged with the duty of preventing terrorism, to open fire or order for
opening of fire against person who, in his opinion, in all probability, is likely to commit a terrorist act or
any scheduled offence, without being fired upon---Such declaration by Supreme Court, however, will not
affect the trials already conducted and convictions recorded under the Act and the pending trials may
continue subject to this order.
(b) Anti-Terrorism Act (XXVH of 1997)---
----S. 10---Constitution of Pakistan (1973), Art.14---Power to enter or search--Inviolability of dignity of

man---Provision of S.10 of Anti-Terrorism Act, 1997, in its present form being direct in conflict with
Art. 14 of the Constitution, is not valid; the same requires to be suitably amended as to provide that
before entering upon a premises which is suspected to have material or a recording in contravention of
S.8 of the said Act, the concerned Officer of Police, Armed Forces or Civil Armed Forces shall record in
writing his reasons for such belief and serve on the person of premises concerned a copy of such reasons
before conducting such search---Such declaration by Supreme Court, however, will not affect the trials
already conducted and convictions recorded under the Act and the pending trials may continue subject to
this order.
Section 10 of the Anti-Terrorism Act, 1997, in its present form is not valid; the same requires to be
suitably amended as to provide that before entering upon a premises which is suspected to have material
or a recording in contravention of section 8 of the Act, the concerned officer of Police, armed forces or
civil armed forces, shall record in writing his reasons for such belief and serve on the person or premises
concerned a copy of such reasons, before conducting such search.
Section 10 of the Anti-Terrorism Act, 1997 empowers an officer of the police, armed forces or civil
armed forces on his being satisfied that there are reasonable grounds for suspecting that a person has in
his possession some written material or recording in contravention of section 8, he may enter and search
the premises where it is suspected that the material or recording is situated and may take possession of
the same. This is directly in conflict with Article 14 of the Constitution, which confers a fundamental
right as to the dignity of man by, inter alia, laying down that the dignity of man and, subject to law, the
privacy of home shall be inviolable. No doubt, that the above right of privacy is subject to law but such
law is supposed to be reasonable and in conformity with the constitutional mandate. In this regard,
reference may be made to section 165, Cr.P.C., which authorises an officer in charge of a police station or
a . police officer making an investigation, if he is satisfied that reasonable grounds for believing that
anything necessary for the purposes of an investigation into any offence, which he is authorised to
investigate, may be found in any place within the limits of the police station of which he is in charge, or
to which he is attached, and that such thing cannot, in his opinion, be otherwise obtained without undue
delay, he may, after recording in writing the grounds of his belief and specifying in such writing, so far a;
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P L D 1998 Supreme Court 1445 https://pakistanlawsite.com/Login/PrintCaseLaw?caseName=1998S20
possible, the thing for which search is to be made, search or cause search to be made, for such thing in
any place within the limits of such station. The above provision is in consonance with Article 14 of the
Constitution and, therefore, section 10 of the Act, in its present form, is not in accordance with law. The
same should be suitably amended in order to provide that the concerned officer of police, armed forces or
civil armed forces shall record and serve on the person of the premises concerned a copy of such reasons,
before conducting such search.
Such declaration by the Supreme Court, however, will not affect the trials already conducted and
convictions recorded under the Act and the pending trials may continue subject to as above.
(c) Anti-Terrorism Act (XXVII of 1997)---
----S. 19(10)(b)---Constitution of Pakistan (1973), Art.10---Procedure and powers of Special Court---

Security of person---Safeguard as to arrest and detention---Provision of S.19(10)(b), Anti-Terrorism Act,
1997, which provides for trial of an accused in absentia on account of his misbehaviour in the Court, is
violative of Art. 10 of the Constitution of Pakistan (1973) and thus invalid--Such declaration by Supreme
Court, however, will not affect the trials already conducted and convictions recorded under the Act and
the pending trials may continue subject to this order.
Section 19(10)(b) of the Anti-Terrorism Act, 1997, which provides for trial of an accused in absentia on
account of his misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is
declared as invalid.
Only clause (b) of subsection (10) of section 19 of the Anti-Terrorism Act, 1997 is violative of the
fundamental right of access to justice. The above clause (b) of subsection (10) of section 19 authorises a
Special Court to order the removal of an accused person from the Court if his behaviour is such as to
impede the course of justice and then to proceed with the case in absentia. An accused person for his
misbehaviour in Court can be convicted for contempt of Court and punished, but on no principle of law,
he can be denied the right to be present and to defend himself in a criminal matter. The right of access to
justice is a well recognised and inviolable right enshrined in Article 9 of the Constitution, which lays
down that no person shall be deprived of life or liberty save in accordance with law. If an accused person
is removed from the Court on account of his misbehaviour and in his absence the trial is concluded and
he is sentenced to death, he will be deprived of his life without due course of law. Secondly, under clause
(1) of Article 10 of the Constitution an accused person has the right to consult and be defended by a legal
practitioner of his choice, in case he is arrested and detained.
The above provision is violative of the above Constitutional provision having no legal effect.
Such declaration by the Supreme Court, however, will not affect the trials already conducted and
convictions recorded under the Act and the pending trials may continue subject to as above.
Government of Balochistan v. Azizullah Memon PLD 1993 SC 341 and AI-Jehad Trust v. Federation of
Pakistan PLD 1996 SC 324 ref.
(d) Anti-Terrorism Act (XXVII of 1997)---
---.-S. 24---Constitution of Pakistan (1973), Arts.175 & 203---Appellate Tribunal---Provision of S.24 of

the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of
independence of Judiciary and Arts. 175 & 203 of the Constitution---Section 24 of the Act needs to be
suitably amended so as to vest the Appellate power in a High Court instead of Appellate Tribunal and to
use the words "High Court" in place of "Appellate Tribunal" ---Such declaration by Supreme Court,
however, will not affect the trials already conducted and convictions recorded under the Act and the
pending trials may continue subject to this order.
(e) Anti-Terrorism Act (XXVII of 1997)---
----S. 25---Constitution of Pakistan (1973), Arts.175 & 203---Appeal--Provision of S.25 of the Anti-
Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of
suitably amended so as to vest the Appellate power in a High Court instead of Appellate Tribunal and to
use the words "High Court" in place of "Appellate Tribunal"--Such declaration by Supreme Court,
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(f) Anti-Terrorism Act (XXVII of 1997)---
----S. 27---Constitution of Pakistan (1973), Arts.175 & 203---Punishment for defective investigation---
Provision of S.27 of the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates
against the concept of independence of Judiciary and needs to be suitably amended so as to vest power in
a "High Court" instead of "Appellate Tribunal "---Such declaration by Supreme Court, however, will not
affect the trials already conducted and convictions recorded under the Act and the pending trials may
continue subject to this order.
(g) Anti-Terrorism Act (XXVII of 1997)---
----S. 28---Constitution of Pakistan (1973), Arts.175 & 203---Transfer of cases---Provision of S.28 of the
Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of
amended as to vest power of transfer of cases in a High Court instead of Appellate Tribunal and to use
the words "High Court" in place of "Appellate Tribunal "---Such declaration by Supreme Court,
e(h) Anti-Terrorism Act (XXVII of 1997)---
----S. 30---Constitution of Pakistan (1973), Arts.175 . & 203---Modified application of certain provisions
of the Criminal Procedure Code, 1898--Provision of S.30 of the Anti-Terrorism Act, 1997 is not valid in
its present form as the same militates against the concept of independence of Judiciary and Arts. 175 &
203 of the Constitution---Section 30 of the Act needs to be suitably amended so as to vest the appellate
power in a High Court instead of Appellate Tribunal and word "High Court" be substituted for
"Appellate Tribunal "---Such declaration by Supreme Court, however, will not affect the trials already
conducted and convictions recorded under the Act and the pending trials may continue subject to this
order.
(i) Anti-Terrorism Act (XXVII of 1997)---
----S. 37---Constitution of Pakistan (1973), Arts.175 & 203---Contempt of Court---Provision of S.37 of

the Anti-Terrorism Act, 1997 is not valid in its present form as the same militates against the concept of
independence of Judiciary and Arts.175 & 203 of the Constitution---Section 37 of the Act needs to be
amended suitably so as to vest. power to punish for contempt in a High Court instead of Appellate
Tribunal and to use the words "High Court" in place of "Appellate Tribunal" ---Such declaration by
Supreme Court, however, will not affect the trials already conducted and convictions recorded under the
Act and the pending trials may continue subject to this order.
(j) Anti-Terrorism Act (XXVII of 1997)--- .
----S. 26---Constitution of Pakistan (1973), Arts. 13(b) & 25---Admissibility of confession made before
Police---Provision of S.26 of the Anti-Terrorism Act, 1997 is not valid in its present form as it makes
admissible the confession recorded by a Police Officer not below the rank of a Deputy Superintendent of
Police and is violative of Arts. 13(b) & 25 of the Constitution---Section 26 of the said Act, thus, requires
to be suitably amended by substituting the words "by a Police Officer not below the rank of a Deputy
Superintendent of Police" with the words "by Judicial Magistrate" ---Such declaration by Supreme Court,
Section 26 of the Anti-Terrorism Act, 1997 is not valid in its present form as it makes admissible the
confession recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is
violative of Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended
by substituting the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by
the words "by Judicial Magistrate".
Section 26 of the Anti-Terrorism Act provides that notwithstanding anything contained in Qanun-
e-Shahadat Order, 1984 (President's Order 10 of 1984), a confession made by a person accused of any
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offence punishable under section 7 or section 8 of the Act or an offence covered by sub-paragraph (a) of
paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape, before
a police officer not below the rank of a Deputy Superintendent, may be proved against such person. The
above provision seems to be violative of Articles 13(b) and 25 of the Constitution. Clause (b) of Article
13 of the Constitution confers a fundamental right by providing, inter alia; that no person shall, when
accused of an offence, be compelled to be a witness against himself. Indeed a judicial confession is
recorded by a Magistrate which is admissible as a piece of evidence, but keeping in view the state of
affairs obtaining in the police force, Court cannot equate a police officer with a Magistrate. Additionally,
there are very strict requirements which a Magistrate is required to comply before recording a judicial
confession of an accused person. These requirements do not find place in section 26 of the Act. It is true
that it will be for the Special Court concerned or for the Appellate Tribunal to
accept or not to accept a confession recorded by a police officer specified in the above section, but the fact
remains that such a confession is not in consonance with the law and the Constitution. Under Islamic
Jurisprudence a confession cannot be accepted lightly and it has certain mandatory requirements.
Under Hanfi school of thought a confession is admissible if an accused person admits his guilt/crime four
times at four different places.
Section 26 cannot be sustained, the same requires to be suitably amended by substituting the words
"police‑officer not below the rank of a Deputy Superintendent of Police" by the words "Judicial Magistrate".
Declarations in respect of the provisions of the Act referred to hereinabove will not affect the trials already
conducted and convictions recorded under the Act and the pending trials may continue subject to the above as
ordered by the Court in the short order.
Kitab‑ul‑Fiqa, Vol. 5 by Abdur Rehman Al‑Jaziri ref.
(k) Anti‑Terrorism Act (XXVII of 1997)‑‑‑
‑‑‑‑Sched., Ss.6, 7 & 8‑‑‑Terrorist act‑ ‑‑Punishment for terrorist act‑‑?Prohibition of acts intended or likely
to stir up sectarian hatred‑‑‑Offences mentioned in the Sched. to the Anti‑Terrorism Act, 1997 should have
nexus with the objects mentioned in Ss.6, 7 & 8 of the Act‑‑‑If an offence included in the Schedule has no
nexus with Ss.6, 7 & 8 of the Act, in that event, notification including such an offence, to that extent will be
ultra vires‑‑‑Such declaration by Supreme Court, however, will not affect the trials already conducted and
convictions recorded under the Act and the pending trials may continue subject to this order.
The offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6, 7 and 8
of the Anti‑Terrorism Act.
Offences mentioned in the Schedule should have nexus with the object of the Act and the offences covered
by sections 6, 7 and 8 thereof. Section 6 defines terrorist acts, section 7 provides punishment for such acts,
and section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d)
thereof. If an offence included in the Schedule has no nexus with the above sections, in that event notification
including such an offence to that extent will be ultra vires.
Government of Balochistan through Additional Chief Secretary v. Azizullah Memon PLD 1993 SC 341 and
Darvesh M. Arbey v. Federation of Pakistan PLD 1977 Lah. 846 ref.
(1) Anti‑Terrorism Act (XXVII of 1997)‑‑‑
‑‑‑‑S. 35‑‑‑Constitution of Pakistan (1973), Arts.175 & 203‑‑‑Power to make rules‑‑‑Provision of S.35 of
the Anti‑Terrorism Act, 1997 in its present form is not valid as the same militates against the concept of
independence of Judiciary and is also violative of Arts. 175 & 203 of the Constitution‑‑‑Section 35 of the
said Act needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court
to be notified by the Government‑‑‑Such declaration by Supreme Court, however, will not affect the trials
already conducted and convictions recorded under the Act and the pending trials may continue subject to this
order.
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Section 35 of the Anti‑Terrorism Act in its present form is not valid as it militates against the concept of the
independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it
needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be
notified by the Government.
Section 35 of the Act empowers the Government to frame rules through a notification, which it may deem
necessary for carrying out the purposes of the Act. Under sections 24, 25, 27, 28, 30 and 37 of the Act 'High
Court' should be substituted in place of 'Appellate Tribunal' and as the Special Courts are to operate/function
under the control and supervision of the High Court concerned in terms of Article 203 of the Constitution, the
power to frame rules should vest in the High Court and not in the Government. We, therefore, hold that
section 35 of the Act in its present form is not valid as it militates against the concept of independence of
judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it needs to be
suitably amended.
(m) Anti‑Terrorism Act (XXVII of 1997)‑‑‑
‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Arts.212‑B(4), 175 & 203‑‑?Establishment of Special Courts for
trial of heinous offences‑‑‑Composition and appointment of Presiding Officers of Special Courts‑‑‑Provision
of S.14 of the Anti‑Terrorism Act, 1997 requires to be amended so as to provide security of the tenure of the
Judges of the Special Courts in consonance with the concept of independence of Judiciary‑‑‑Such declaration
by Supreme Court, however, will not affect the trials already conducted and convictions recorded under the
Act and the pending trials may continue subject to this order.
Section 14 of the Anti-Terrorism Act, 1997 requires to be amended as to provide security of the tenure of the
Judges of the Special Courts in consonance with the concept of independence of Judiciary.
Section 14 of the Act which provides for composition and appointment of Presiding Officers of Special
Courts does not provide for the security of the tenure of the Judges appointed thereunder. The security of
tenure of Judges is a sine qua non for independence of Judiciary.
The framers of Article 212-B of the Constitution were mindful of the fact that in the absence of security of
tenure, no Judge can function impartially and independently. Therefore, section 14 is required to be suitably
amended preferably. in line with clause (4) of Article 212-B of the Constitution.
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.
(n) Constitution of Pakistan (1973)---
----Arts. 175, 202 & 203---Establishment and jurisdiction of Courts--Framework---Words "Such other Courts
as may be established by law" employed in Art.175(1) of the Constitution are relatable to the subordinate
Courts referred to in Art.203 of the Constitution---Any Court or Tribunal which is not founded on any of the
Articles of the Constitution, cannot lawfully share judicial power with the Courts referred to in Arts.175 &
203 of the Constitution ---Supervisioin and control' over the subordinate judiciary vests in High Courts,
which is exclusive in nature, comprehensive in extent and effective in operation---Any Court or Tribunal
which is not subject to judicial review and administrative control of the High Court/or the Supreme Court
does not fit in within the judicial framework of the Constitution---Different laws though can validly be
enacted for different sexes, persons in different age groups, persons having different financial standing and
persons accused of heinous crimes, but that does not mean that a parallel Judicial system can be created in
violation of Arts. 175, 202 & 203 of the Constitution---Special Courts can be constituted for trying heinous
crimes expeditiously but the same should be within the framework of the Constitution---Courts/Tribunals
which are manned and run by executive authorities without being under the control and supervision of the
High Court in terms of Art.203 of the Constitution, cannot meet the mandatory requirement of the
Constitution.
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Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme Court, a
High Court for each Province and such other Courts as may be established by law.
The words "such other Courts as may be established by law" employed in clause (1) of Article 175 of the
Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
Constitution recognises only such specific Tribunal to share judicial powers with the above Courts, which
have been specifically provided by the Constitution itself: Federal Shariat Court (Chapter 3-A of the
Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a corollary that
any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot lawfully share
judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.
In view of Article 203 of the Constitution read with Article 175 thereof the supervision and control over the
subordinate judiciary vests in High Courts, which is exclusive in nature, comprehensive in extent and
effective in operation.
The hallmark of our Constitution is that it envisages separation of the Judiciary from the Executive (which is
founded on the Islamic Judicial System) in order to ensure independence of Judiciary and, therefore, any
Court or Tribunal which is not subject to judicial review and administrative control of the High Court and/or
the Supreme Court does not fit in within the judicial framework of the Constitution.
The right of "access to justice to all" is a fundamental right, which right cannot be exercised in the absence of
an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial hierarchy. The
Courts/Tribunals which are manned and run by executive authorities without being under the control and
supervision of the High Court in terms of Article 203 of the Constitution, can hardly meet the mandatory
requirement of the Constitution.
Indeed different laws can validly be enacted for different sexes, persons in different age groups, persons
having different financial standing and persons accused of heinous crimes. However, this does not mean that
a parallel judicial system can be created in violation of Articles 175, 202 and 203 of the Constitution. There
can be Special Courts trying heinous crimes expeditiously, but the same should be within the framework of
the Constitution.
ordered by the Court in the short order. [p. 14951 GG
Kartar Singh v. State of Punjab (1994) 3 SCC 569; Black's Law Dictionary, 5th Edn.; Sharaf Faridi and 3
others v. The Federation of Islamic Republic of Pakistan through the Prime Minister and another PLD 1989
Kar. 404; Government of Sindh through Chief Secretary to the Government of Sindh, Karachi and others v.
Sharaf Faridi` and others PLD 1994 SC 105; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. PLD
1984 Lah. 69; Altaf Hussain v. The State PLD 1985 Lah. 10; Imran v. Presiding Officer, Punjab Special
Court No. VI, Multan and 2 others PLD 1996 Lah. 542; Chenab Cement Product (Pvt.) Ltd. and others v.
Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Government of Balochistan through Additional
Chief Secretary v. Azizullah Memon and 16 others PLD 1993 Sit 341; Syed Abul A'la Maudoodi's case PLD
1964 SC 673; Ms. Benazir Bhutto's case PLD 1989 SC 416; Al-Jehad Trust through Raeesul Mujahideen
Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and by Shamsul
Ulema Allama (??????????????????? )Shibli Nomani, 1997 Edn. ref.
(o) Constitution of Pakistan (1973)---
----Art. 2A---Independence of Judiciary---Separation of Judiciary from Executive---Hallmark of Constitution

is that same envisages separation of the Judiciary from the Executive---Independence of Judiciary is
inextricably linked and connected with the process of appointment of Judges and the security of their tenure
and other terms and conditions.
(p) Constitution of Pakistan (1973)---
----Art. 25---Equality of citizens---Classification---Principles
Following are the principles on the question of classification with regard to equality of citizens:
(i) That equal protection of law does not envisage that every citizen is treated alike in all circumstances, but it
contemplates that persons similarly situated or similarly placed are to be treated alike;
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(ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable
basis;
(iii) that different laws can validly be enacted for different sexes, persons of different age groups, persons
having different financial standard and persons accused of heinous crimes;
(iv) that no standard of universal application to test reasonableness of a classification can be laid down as
what may be reasonable classification in a particular set of circumstances, may be unreasonable classification
in the other set of circumstances;
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient
basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no
classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges
conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those
who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041 and Government of Balochistan
through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341 ref.
(q) Constitution of Pakistan (1973)---
----Arts. 175, 202 & 203---Establishment and jurisdiction of Courts---Creation of Special Courts---Validity---
Framework---Different laws though can validly be enacted for different sexes, persons in different age
groups, persons having different financial standing and persons accused of heinous crimes but that does not
mean that a parallel judicial system can be created in violation of Arts. 175, 202 & 203 of the Constitution---
Special Courts for trying heinous crimes expeditiously can be constituted but within the framework of the
Constitution.
(r) Terrorism---
---- Preventive enactment ---Simpliciter the fact that other foreign countries have also enacted certain Acts to
cope with the menace of terrorism, will not warrant enactment of an Act in Pakistan? which may be violative
of the Constitution.
Usmanbhai Dawoodbhai Memon and others v. State of Gujarat AIR 1988 SC 922; Niranjan Singh Karam
Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others (unreported) decided on 7-8-1990; Kartar Singh
v. State of Punjab (1994) 3 SCC 569; Supreme Court Advocates-on-Record Association and another v. Union
of India AIR 1994 SC 268; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and
others v. Federation of Pakistan and others PLD 1996 SC 324; S.P.Sampath Kumar v. Union of India AIR
1987 SC 386 and Constitutional and Administrative Law, 9th Edn. by E.C.S. Wada and G.Godfrey Phillips
ref.
(s) Criminal trial---
----Terrorism---Conviction---Approach of the Court while considering criminal matters should be dynamic

and Court should take into consideration the surrounding situation obtaining in the country and should not
lightly set aside a conviction on technical grounds if the Court's conscience is satisfied that factually the
convict was guilty of the offence.
The law and order situation has been considerably deteriorated and new types of terrorism have emerged due
to tremendous progress made in the field of technology. The approach of the Court while considering
criminal matters should be dynamic and it should take into consideration the surrounding situation obtaining
in the country and should not lightly set aside a conviction on technical grounds if the Court's conscience is
satisfied that factually the convict was guilty of the offence.
7 24-Mar-20, 12:13 PM
State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Zeeshan
Kazmi v. The State PLD 1997 SC 267 ref.
(t) Anti-Terrorism Act (XXV11I of 1997)---
----S. 5(1) & (2)(i)---Const-itution of Pakistan (1973), Art.9---Use of armed forces and civil armed forces to
prevent terrorism---Security of person--Provision of S.5(2)(i), Anti-Terrorism Act, 1997 is violative of Art.9
of the Constitution of Pakistan---Such declaration by Supreme' Court, however, will not affect the trials
already conducted and convictions recorded under the Act and the pending trials may continue subject to this
order.
Subsection (1) of section 5 of the Anti-Terrorism Act, 1997 provides that any police officer, or member of the
armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient
warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so
doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a
police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of
subsection (2) thereof empowers a police officer or member of the above forces, after giving prior warning,
to use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances
of the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act
or a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to
use force, or to order the firing upon any person or persons against whom he is authorised to use force in
terms thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no
person shall be deprived of life or liberty save in accordance with law.
(u) Anti-Terrorism Act (XXVII of 1997)---
----S. 5(2)(i)---Constitution of Pakistan (1973), Art.9---Use of armed forces and civil armed forces to prevent
terrorism---Security of person---Conferment of power on the officers referred to in S.5(2)(i), Anti-Terrorism
Act, 1997 without being fired upon by the accused is not justifiable---Provision of S.5(2)(i), AntiTerrorism
Act, 1997 being not sustainable in its present form, Supreme Court directed that said provisions may be
amended providing that the officer can fire upon an accused person if he has been himself fired upon by
him---Such declaration by Supreme Court, however, will not affect the trials already conducted and
convictions recorded under the Act and the pending trials may continue subject to this order.
The conferment of power on the officers referred to in clause (i) of subsection (2) of section 5 without being
fired upon by the accused, is not justifiable. An officer of any of the above forces under the present provision
can kill any person, if he considers that in all probability the former is likely to commit a terrorist act or
scheduled offence. The formation of opinion as to the probability or likelihood of commission of offence will
vary from person to person as it depends on subjective satisfaction. There is no check or guideline provided
for the exercise of the above power conferred by the above provision. The aforesaid provision in its present
form is not sustainable. The same may be amended and it may be provided that the officer can fire upon an
accused person if he has been himself fired upon by him.
(v) Anti-Terrorism Act (XXVII of 1997)---
----Preamble---Constitution of Pakistan (1973), Arts. 175, 202 & 203--Establishment and jurisdiction of
Courts---Framework---Establishment of Special Courts under Anti-Terrorism Act, 1997 is under an Act of
the Parliament and is not founded on a Constitutional provision, and therefore, if any of the provisions of the
Anti-Terrorism Act, 1997 is in conflict with the Constitutional provisions, the same cannot be sustained---
Such declaration by Supreme Court, however, will not affect the trials already conducted and convictions
recorded under the Act and the pending trials may continue subject to this order.
(w) Constitution of Pakistan (1973)---
----Arts. 175, 202 & 203---Establishment and jurisdiction of Courts--Framework---Constitutional framework

relating to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals,
which are not under the judicial review and administrative control and supervision of the High Court---Where
8 24-Mar-20, 12:13 PM
the Constitution makers wanted to provide judicial forums other than what is envisaged by Arts. 175, 202 &
203 of the Constitution, same has expressly been provided in the Constitution.
(x) Anti-Terrorism Act (XXVII of 1997)---
----S. 34---Power of Government to amend the Schedule to the Act ---Validity--Held, delegation of such
power to the Government by the Legislature is not an unusual phenomenon---Such power is normally
delegated to Government in order to implement the object of a statute or to work out certain detail but the
offences mentioned in the Schedule should have nexus with the object of the Act---Provision of S.34, Anti-
Terrorism Act, 1997 is not ultra vires.
Zaibtun Textile Mills Ltd. v. Central Board of Revenue and others PLD 1983 SC 358; Muhammad Hussain
Ghulam Muhammad and another v. The State of Bombay and AIR 1962 SC 97; Government of Balochistan
through Additional Chief Secretary v. Azizullah Memon PLD 1993 SC 341 and Darvesh M. Arbey v.
Federation of Pakistan PLD 1977 Lah. 846 ref.
(y) Anti-Terrorism Act (XXVII of 1997)---
----S. 16---Oath by Judges of Special Courts---Suitable amendment in S.16 for the non-Muslim Judges was
directed to be made---Such declaration in respect of the provision of the Act will, however, not affect the
trials already conducted and convictions recorded under the Act and the pending trials may continue subject
to this judgment.
(z) De facto, doctrine of--
---- Principle of de facto exercise of power by a holder of the public office is based on sound principles of
public policy to maintain regularity in the conduct of public business to save the public from confusion and to
protect private right which a person may acquire as a result of exercise of power by the de facto holder of the
office.
Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542; Chenab
Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Malik
Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs,
Islamabad and others PLD 1998 SC 161 and S.P. Sampath Kumar v. Union of India and others AIR 1987 SC
386 ref.
(aa) Anti-Terrorism Act (XXVII of 1997)---
----S. 19---Penal Code (XLV of 1860), Ss.302, 324 & 304---Constitution of Pakistan (1973), Art.l85(3)---
Petition for leave to appeal---Contention was that Special Court committed serious irregularities in the trial of
the case inasmuch as the charge was wrongly framed and evidence was not recorded in terms of S.304, P.P.C.
and therefore conviction and sentence could not be sustained--Held, such alleged irregularities could not be
urged in the petition for leave to appeal before Supreme Court as same had arisen out of the dismissal of the
petitioner's Constitutional petition in the High Court---Such irregularities could have been urged before the
Trial Court and/or before the Appellate Tribunal--Supreme Court would not interfere with impugned
judgments on such technical grounds---If a Court was satisfied about the guilt of the accused person
concerned, the technicalities should be overlooked without causing any miscarriage of justice---Special Court
having found the accused guilty and Appellate Tribunal having affirmed such finding, petition for leave to
appeal was disposed of by Supreme Court accordingly.
State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 ref.
Per Irs:iad Hassan Khan. J.-
(bb) Anti-Terrorism Act (XXVH of 1997)---
----Preamble---Constitution of Pakistan (1973), Art.37(d)---Promotion of social justice and eradication of

social evils---No objection can be taken to the establishment of Special Courts for Speedy Trials and
prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997---Such Courts being validly
constituted Courts are subordinate to the High Court and have to perform judicial functions under the
Constitution and provisions contained in the Act (except which have been declared ultra vires).
'Efficiency in the Courts' is serious national problem, an expression of greater public concern than even the
threat of war. Article 37(d) of the Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State
9 24-Mar-20, 12:13 PM
to ensure 'inexpensive' and :expeditious justice'. Thus visualized, speedy resolution of civil and criminal
cases, is an important Constitutional goal, as envisaged by the principles of policy enshrined in the
Constitution. It is, therefore, not undesirable to create Special Courts for operation with speed but expeditious
disposition of cases of terrorist activities/heinous offences have to be subject to Constitution and law. Viewed
in this perspective, no objection can be taken to the establishment of Special Courts for speedy trials and
prevention of terrorist acts/heinous offences under the Anti-Terrorism Act, 1997.
The Special Courts are, therefore, validly constituted Courts but they have to perform judicial functions under
the Constitution and the provisions contained in the Act except those which have been declared ultra vires.
A Special Court is a Court subordinate to the High Court. It has to act under its supervision and control.
Iftikhar Ahmed v. The Muslim Commercial Bank Ltd. PLD 1984 Lah. 69 ref.
(cc) Administration of justice---
----Court-delay in disposal of cases---Remedy

?
The solution of the problem of Court-delay does not necessarily lie in a large scale addition of new Judges or
creation of Special Courts but delay in the disposal of cases can be reduced only by Judges who are willing to
insist that the lawyers/prosecutors/parties meet reasonable dead-lines for the conclusion of the trial. This
effort will require concern and commitment on the part of the Judges. Judges will probably receive
considerable "heat" from lawyers/prosecutors understandably upset by changes in their scheduling
prerogatives. Delay in disposition of cases can be eliminated to a larger extent through good Court
management and not necessarily by creation of new. Courts and increase in the strength of Judges. It is for
the Presiding Officer of the Court to evolve strategies within the parameters of the law/procedure for
accelerating the pace of disposition of civil and criminal cases, resulting in reduction of delay and clearance
of backlog. However, sacrifice of justice to obtain speedy disposition of cases could hardly be termed as
justice. A balance ought to be maintained between the two commonly known maxims, "justice delayed is
justice denied" and "justice rushed is justice crushed". Speed and efficiency should not be at the expense of
justice.
Justice Delayed (a publication of the National Center for State Courts in Cooperation with the National
Conference of Metropolitan Courts) by Thomas Church Jr. quoted.
(dd) Anti-Terrorism Act (XXVII of 1997)---
----S. 32---Criminal Procedure Code (V of 1898),. Preamble ---Qanun-e-Shahadat (10 of 1984), Art.l(2)---
Special Court shall be deemed to be a Court of Session by virtue of S.32, Anti-Terrorism Act,
1997---Provisions of Criminal Procedure Code, 1898 and Qanun-e-Shahadat, 1984 are applicable to the
proceedings before a Special Court.
The provisions of the Code of Criminal Procedure, 1898 which is a self-contained Code for the holding of
criminal trials, has been made applicable to the proceedings before a Special Court and for the purpose of the
said provisions of the Code, a Special Court shall be deemed to be a Court of Session by virtue of section 32
of. the Anti-Terrorism Act. By virtue of Article 1(2) of the Qanun-e-Shahadat, 1984, its operation extends to
the whole of Pakistan and applies to all judicial proceedings in or before any Court, including a Court martial,
a tribunal or other authority exercising judicial or quasi judicial powers of jurisdiction, but does not apply to
proceedings before an arbitrator.
M. Asghar Khan Rokari, Advocate Supreme Court for Petitioner (in C.P. No.251 of 1998).
M. Ikram Ch., Advocate Supreme Court and M.A. Zaidi, Advocate-on Record for Petitioner (in C. P.No.15 of
1997). ,
K.M.A. Samdani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioner
(in C.P. No.20 of 1997).
Syed Iftikhar Hussain Gilani, Advocate Supreme Court alongwith Mehr Khan Malik, Advocate-on-Record
for Petitioners (in C.Ps. Nos.21 and 26 of 1997).
Sh. Khizar Hayat, Advocate Supreme Court for Petitioners (in C.P. No.36 of 1997).
Baseer Naveed (in person) and Ijaz Muhammad Khan, Advocate-onRecord for Petitioner (in C.P.No.61 of
10 24-Mar-20, 12:13 PM
1997).
Mehr Khan Malik, Advocate-on-Record for Petitioner (in C.P. No. 1129 of 1997).
Ch. Muhammad Farooq, Attorney-General for Pakistan alongwith Ch.Akhtar Ali, Advocate-on-Record,
Yasmin Saigol, Assistant Advocate General, Punjab and M. Iqbal Radd, Additional Advocate-General, Sindh
for Respondents (in above Petitions) and for Petitioners (in C.Ps. Nos. 423 to 431 of 1998).
M. Ismail Qureshi, Advocate Supreme Court for the Complainant (in C. P. No. 1129 of 1997).
Dates of hearing: 11th May to 15th May, 1998.
JUDGMENT
AJMAL MIAN, C J.--On 15-5-1998 we disposed of the above petitions for the reasons to be recorded later
on by the following short order:-
"For the reasons to be recorded later on, we dispose of the above cases as under:-
(i)???????? Section 5(2)(i) is held to be invalid to the extent it authorises the officer of Police, armed forces
and civil armed forces charged with the duty of preventing terrorism, to open fire or order for opening of fire
against person who in his opinion in all probability is likely to commit a terrorist act or any scheduled
offence, without being fired upon;
(ii)??????? section 40 of the Anti-Terrorism Act, 1997, hereinafter referred to as the Act, in its present form is
not valid; the same requires to be suitably amended as to provide that before entering upon premises which is
suspected to have material or a recording in contravention of section 8 of the Act, the concerned officer of
Police, armed forces or civil armed forces shall record in writing his reasons for such belief and serve on the
person or premises concerned a copy of such reasons before conducting such search;
(iii)?????? section 19(10)(b) of the Act, which provides for trial of an accused in absentia on account of his
misbehaviour in the Court, is violative of Article 10 of the Constitution and, therefore, is declared as invalid;
(iv)?????? sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their present form as they militate
against the concept of independence of judiciary and Articles 175 and 203 of the Constitution. They need to
be amended as to vest the appellate power in a High Court instead of Appellate Tribunal and to use the words
"High Court" in place of!,, "Appellate Tribunal";
(v)??????? section 26 of the Act is not valid in its present form as it makes,, admissible the confession
recorded by a police officer not below the rank of a Deputy Superintendent of Police as it is violative of
Articles 13(b) and 25 of the Constitution and that the same requires to be suitably amended by substituting
the words 'by a police officer not below the rank of a Deputy Superintendent of Police' by the words 'Judicial
Magistrate';
(vi) that the offences mentioned in the Schedule should have nexus with the objects mentioned in sections 6,
7 and 8 of the Act;
(vii) section 35 of the Act in its present form is not valid as it militates against the concept of the
independence of judiciary and is also violative of Articles 175 and 203 of the Constitution and, therefore, it
needs to be suitably amended inasmuch as the power to frame rules is to be vested in the High Court to be
notified by the Government;
(viii) section 14 of the Act requires to be amended as to provide security of the tenure of the Judges of the
Special Courts in consonance with the concept of independence of judiciary.
Pursuant to the above short order, we intend to record our reasons. Before doing so, we may state the brief
facts leading to the filing of aforementioned cases.
2. The petitioner in C.P.L.A. No.251 of 1998 was tried by Special Anti Terrorist Court-I, Lahore, under the
provisions of Anti-Terrorism Act, 1997 (Act . No.XXVII of 1997), hereinafter referred to as the A.T.A., for
causing death of 23 persons and injuries to 55 persons by exploding a detonating device through remote,
control in the compound of District Courts at Lahore, when Maulana 7.ia-ur-Rehman Farooqi (now deceased)
and Maularia Azam Tariq, Chairman of Sipah-e-Sihaba Pakistan, were brought from Kot Lakhpat Jail to the
Court of a learned Additional Sessions Judge, Lahore, in a criminal case. He was convicted through two
11 24-Mar-20, 12:13 PM
judgments dated 15-9-1997 under the provisions of P.P.C. as well as under the Arms Ordinance, 1965, and the
Explosive Substances Act, 1908, by Special Anti-Terrorist Court-I, Lahore. He was awarded death sentence
on 23 counts and R.I. of various terms inter alia under section 324, P.P.C. on 55 counts and under the Arms
Ordinance, 1965, and Explosive Substances Act, 1908. He filed Criminal Appeals Nos.20 and 21 of 1997
against above convictions and sentences before the Appellate Tribunal constituted under section 24 of the
A.T.A. The Appellate Tribunal disposed of Criminal Appeal No.20-G of 1997 (which related to the offences
inter alia under sections 302 and 324, P.P.C.) by a separate judgment in the following terms:-
"The upshot of the above discussion is that the prosecution has been able to establish its case beyond
reasonable doubt against the appellant. As already discussed, judicial confession can safely be relied upon
which finds corroboration from the recovery of remote control and other explosive substance at the instance
of the appellant. The prosecution version is also corroborated from the conduct of the appellant before and
immediately after the occurrence.
The last contention of the learned counsel for the appellant that postmortem reports of only three deceased
persons were produced therefore he could not be convicted on 23 counts has been considered by us and we
accept it. Prosecution neither produced the post-mortem examination reports of 20 persons nor the doctors
who examined the deceased were produced. In such circumstances, the appellant cannot be held responsible
for their murders. Therefore, while dismissing the appeal, we confirm the death sentence of the appellant on
three counts only. The convictions and sentences for other offences are, however, maintained. "
Against the above judgment, the petitioner filed Writ Petition No.25713 of 1997, which was disposed of
alongwith eight other Writ Petitions through a common judgment dated 9-3-1998 by a Full Bench
(comprising 5 learned Judges) of the Lahore High Court. There was difference of opinion among the learned
members of the Bench in the ratio of 4:1. The majority view held that the A.T.A. was competently enacted.
However, it was also held by the majority view that certain provisions of the A.T.A. required to be amended
in order to validate the same, namely, section 14 relating to appointment of the Presiding Officers should
provide security of service to them. As regards section 26 of the A.T.A., which makes a confession before a
police officer admissible in evidence, it was held that the confession should be recorded in presence of a
Deputy Superintendent of Police but if he is not available for some reasons which will have to be stated by
the Police Officer the confession shall be recorded in the presence of a Superintendent of Police who shall not
be from the same Division in which the investigation was being carried out. (There seems to be variation on
this point between the short order and the judgment containing reasons inasmuch as instead of "Division", the
word "area" has been substituted).
As regards section 31 of the A.T.A. (which provides finality of the judgment of the Special Court subject to
the result of an appeal), it has been held that Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973, hereinafter referred to as the Constitution, is not whittled down and remains available against
the judgments and orders of the Appellate Tribunal. In this regard, the learned Attorney-General's statement
to the effect that where judgment of the trial Court is reversed by the Appellate Tribunal, a further right of
appeal would be made available both to the State and also to the convict by making suitable amendment in
the law, was recorded.
Regarding section 16 of the A.T.A. (which provides oath by the Presiding Officers of Special Courts), it has
been held that the oath prescribed for non-Muslim Judges requires modification inasmuch as they cannot be
asked to decide the cases according to their religious belief which may come in conflict with the Injunctions
of Islam or the Constitution. It was, therefore, held that section 16 of the A.T.A. should be suitably amended.
In case of non-Muslim Judges, it was held that they will decide the cases in accordance with the Constitution,
law and their conscience. However, the convictions and sentences awarded to the petitioner, Mehram Ali,
have been upheld.
Adverting to the question of trial of an accused in absentia under section 19(10) of the A.T.A., it has been
observed that the learned Attorney General had conceded before the Court that no trial in absentia could be
held and appropriate measures shall be taken within a period of two months to amend or repeal aforesaid
section of the A.T.A.
Whereas in the minority view sections 5(2)(iii), 10, 13, 14, subsections (10), (11) and (12) of section 19
sections 24 and 25 of the A.T.A. and the constitution of Special Courts and the Appellate Tribunals have been
declared ultra vires and the trials conducted by such Courts have been declared as having been vitiated being
coram non judice.
The petitioner, Mehram Ali, has therefore filed aforementioned C.P.L.A. No.251 of 1998 against the
judgment of the majority view of the Lahore High Court.
12 24-Mar-20, 12:13 PM
Whereas C.P.L.A. No.1129 of 1997 has been filed against the dismissal order dated 13-10-1997 of a Division
Bench of the Lahore High Court passed in Writ Petition No.22366 of 1997 filed by the above petitioner, Mrs.
Tayyaba Yusuf Ali, assailing the trial of her husband by Special Court-II, Lahore, under sections 295-A, 295-
B, 295-C, 298, 298-A, 505(2), 508, 406, 420, P.P.C. and section 16 of the Maintenance of Public Order, 1960,
pursuant to F.I.R. No.70 of 1997 dated 29-3-1997 on the ground of want of jurisdiction.
Whereas C.P.L.A. Nos.423 of 1998 to 431 of 1998 have been filed.by the Federation of Pakistan against the
above judgment dated 9-3-1998 of the Full Bench of the Lahore High Court.
Constitution Petitions Nos.20 of 1997, 21 of 1997 and 26 of 1997 have been filed under Article 184(3) of the
Constitution for assailing the A.T.A. by Hakim Ali Zardari, Asif Ali Zardari and Abdul Latif Ansari,
respectively, who are facing trial before the Special Court at Hyderabad under A.T.A. pursuant to F.I.R.
No.70 of 1997 lodged by one Muhammad Ramzan at Police Station Qasimabad, Hyderabad, under section
302/324/109/427/34, P.P.C.
Constitutional Petitions Nos. 15 of 1997, 36 of 1997 and '61 of 1997 have been filed under Article 184(3) of
the Constitution by one Taufiq Asif, an Advocate; Syed Munawar Hasan, Secretary-General, Jamat-i-Islami
Pakistan; and Joint Action Committee against Anti-Terrorism Act; respectively, for challenging the vires of
A.T.A.
All the above Petitions for Leave to Appeal and Constitutional Petitions were heard together and were
disposed of by the above quoted short order dated 15-5-1998.
3. Adverting to the merits of the case it may be observed that Messrs Asghar Khan Rokri, Muhammad Ikram
Chaudhry and Syed lftikhar Hussain Gilani have vehemently contended that the A.T.A. in its present form is
ultra vires to the various Articles of the Constitution inasmuch as the Special Courts envisaged by the A.T.A.
are in fact parallel Courts which are not contemplated under Articles 175, 202, 203 and 212 of the
Constitution. The petitioner in C.P.L.A. No.61 of 1997 joined the above learned counsel in their above
submission.
Sh. Khizar Hayat, learned Advocate Supreme Court who appeared in Constitutional Petition No.36 of 1997,
contended that the A.T.A. is violative of Articles 2A and 27 of the Constitution particularly the provisions of
sections 5(2)(i), (ii) and (iii), 10 and 26 of the A.T.A.
On the other hand Ch.Muhammad Farooq, learned Attorney-General, has pointed out that terrorism has
attained global magnitude. This is a menace which is not confined to Pakistan but is being faced by many
other countries like India, Ireland etc. He narrated the brutal killings of the innocent people in Punjab and
Karachi in 1997 including high officials, namely, Commissioner, Sargodha Division, a Secretary of the
Punjab Government, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C. He also
pointed out that Punjab was taken over by sectarian rifts to such magnitude that this Court took suo motu
cognizance under Article 184(3) of the Constitution and notices were issued to the Attorney-General, Interior
Minister etc. He also invited our attention to the fact that in some other countries statutes more or less
identical to A.T.A. have been enacted to cope with terrorism. In this behalf he invited' our attention to The
Northern Ireland (Emergency Provisions) Act, 1973, The Prevention of Terrorism (Temporary Provisions)
Act, 1974 and The Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
TADA). He further submitted that TADA was examined by the Indian Supreme Court inter alia in the case of
Kartar Signh v. State of Punjab (1994) 3 Supreme Court Cases 569) and the majority view was that except
section 22 which allowed the identification of a declared proclaimed offender in a terrorist case on the basis
of his photograph, all other provisions of TADA were found intra vires. Above section 22 was struck down.
Miss Yasmin Saigol, Assistant Advocate-General Punjab, and Mr. M. Iqbal Radd, Additional Advocate-
General Sindh, joined Ch.Muhammad Farooq, learned Attorney-General in support of his submission and
contended that the enactment of A.T.A. was warranted by the situation obtaining in Pakistan.
4. The basic question is, as to whether the provisions of A.T.A. in their present form fit in in the
Constitutional framework relating to Judiciary. It has been repeatedly pointed out inter alia by this Court that
our Constitution is founded on the theory of trichotomy of power between the three limbs/organs of the State,
namely, the Legislature, the Executive and the Judiciary. It delineates the functions of each of the organs. It
envisages that each organ of the State shall function/operate within the bounds specified in the Constitution.
Though one can say that the Judiciary is the weakest organ as it does not have the resources or power as the
Legislature or the Executive enjoy but it has been assigned by the Constitution very important and delicate
role to play, namely, to ensure that none of the organs of the State or the Government functionaries acts in
violation of any provision of the Constitution or of any other law and because of the above nature of work
entrusted to Judiciary, it was envisaged in the Constitution that the Judiciary shall be independent.
13 24-Mar-20, 12:13 PM
The same was not only provided in the Preamble of the Constitution (which has now become part of the
Constitution through Article 2A) by providing that "the independence of the judiciary shall be fully secured"
but this was also manifested by the Constitution-makers by providing the judicial framework in the
Constitution to ensure the same. In this regard, it may be observed that clause (1) of Article 175 of the
Constitution provides that "There shall be a Supreme Court of Pakistan, a High Court for each Province and
such other Courts as may be established by law". Whereas clause (2) lays down that "No Court shall have any
jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". It may further be
noticed that clause (3) of above Article envisages that "The Judiciary shall be separated progressively from
the Executive within fourteen years from the commencing day". It may be highlighted that originally the
period specified was 3 years, which was substituted by 5 years through The Constitution (Fifth Amendment)
Act, 1976 (Act LXII of 1976), and then to 14 years by President Order No. XIV of 1985.
It may be observed that the latter clause, namely, clause (3) of Article 175 of the Constitution is of great
significance as it envisages separation of Judiciary from the Executive, which concept runs counter to the
ordinary meanings of the term "Judiciary" given inter alia in Black's Law Dictionary, Fifth Edition, which
defines the same as under:-
"Judiciary": Pertaining or relating to the Courts of justice, to the judicial department of Government, or to the
administration of justice."
??????????? "Judiciary": That branch of Government invested with the judicial power; the system of Courts
in a country; the body of Judges; the Bench. That branch of Government which is intended to interpret,
construe and apply the law."
It is evident from the above quoted dictionary meaning that in general parlance the Judiciary is considered as
a part of the Government, which meaning is contrary to what is envisaged in clause (3) of Article 175 of the
Constitution, namely, that the Judiciary shall be separated from the executive. The object of providing above
clause (3) in Article 175 by the framers of the Constitution seems to be to ensure independence of Judiciary
in order to enable it to perform its functions according to the mandate of the Constitution. It is a matter of
common knowledge that in spite of expiry of 14 years' period specified in above clause (3) of aforesaid
Article, no action was taken by various Governments in power to separate Judiciary progressively from the
Executive. In view of above default on the part of various Governments, Constitution Petitions were filed in
the High Court of Sindh for a direction to the Federal and Provincial Governments to implement the above
mandate of the Constitution contained in aforesaid clause, which were allowed through a common judgment
titled Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through the Prime Minister
and another (PLD 1989 Karachi 404) by a Full Bench comprising one of us (Ajmal Mian, C.J.) and six
companion Judges. The operative portion of the judgment is contained in para. 12 of the main opinion, which
reads as follows:-
" 12.1 would, therefore, allow the above two petitions in the following terms;-
(A)?????? The respondent in the first petition i.e. respondent No.2 (i.e. the Province of Sindh) in the second
petition is directed--
(i)???????? to issue necessary notification in terms of subsection (2) of section 1 of Ordinance No.XII of
1972 for enforcing the provisions of the aforesaid Ordinance for bifurcating magistracy into Judicial
Magistrates and Executive Magistrates and to place the Judicial Magistrates under the administrative control
of the High Court within a period of six months;
(ii)??????? to issue necessary Notification under sub -rule (2) of Rule 2 of the Sindh Civil Servants
(Efficiency and Discipline) Rules, 1978, and Rule 4 of the Sindh Civil Services (Appointment, Promotion
and Transfer) Rules, 1974, notifying the High Court as the Authority within a period of sixty days,
(iii)?????? to initiate legislative measures within a period of six months in order to make necessary
amendments in the West Pakistan Civil Courts Ordinance, 1962, Cr.P.C., Sindh Civil Servants Act, 1973,
Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, the Sindh Civil Servants (Appointment,
Promotion and Transfer) Rules, 1974, and in the other enactments to make the same in conformity with above
Articles 175 and 203 of the Constitution.
(B)?????? Respondent No. l (i.e. the Federation of Pakistan) in the Second Petition is directed to initiate all
legislative/administrative steps/measures to bring the existing laws relating to or affecting the judiciary in
accord with Articles 175 and 203 of the Constitution within a period of six months."
14 24-Mar-20, 12:13 PM
6. Against the above judgment the Provincial Government of Sindh and the Federation of Pakistan filed
appeals in this Court, which were disposed of through a common judgment reported in PLD 1994 SC 105
(Government of Sindh through Chief Secretary to the Government of Sindh, Karachi and others v. Sharaf
Faridi and others), in which Dr. Nasim Hasan Shah, J. (as his Lordship then was) who rendered the main
opinion, dilated as to the meaning of "the independence of judiciary" as under:-
"Now according to the consensus of the jurists, the independence of the judiciary means--
(a)??????? that every Judge is free to decide matters before him in accordance with his assessment of the
facts and his understanding of the law without improper influences, inducements or pressures, direct or
indirect, from any quarter or for any reason; and
(b)??????? that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or
by way of review, over all issues of a judicial nature.
In our Constitution, the specific provision designed to secure this independence is contained in clause (3) of
Article 175 by enacting that:
"The Judiciary shall be progressively separated from the Executive .. . ... "
It may be observed that Article 202 of the Constitution provides that "Subject to the Constitution and law, a
High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to
it. "
It may also be observed that Article 203 of the Constitution lays down that "Each High Court shall supervise
and control all Courts subordinate to it. "
It may further be observed that Article 212(1) of the Constitution contemplated the establishment of one or
more administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
"(a)?????? matters relating to the terms and conditions of persons who are or have been in the service of
Pakistan, including. disciplinary matters;
(b) - matters relating to claims arising from tortious acts of Government, or any person in the service of
Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such
authority acting in the discharge of his duties as such servant; or
(c)??????? matters relating to the acquisition, administration and disposal of any property which is deemed to
be enemy property under any law.
Whereas clause (3) thereof provided a right of appeal to this Court by laying down that "An appeal to the
Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie
only if the Supreme Court, being satisfied that the case involves a substantial question of law of public
importance, grants leave to appeal".
It may be pointed out that under the original scheme of the Constitution the Courts as provided in Article 175
or the Administrative Courts or Tribunals as envisaged in clause (1) of Article 212 could have been
established and no other Courts. It may further be noticed that the expression "and such other Courts as may
be established by law" used in clause (1) of Article 175 of the Constitution after referring to the establishment
of Supreme Court and a High Court for each Province, is relatable to subordinate Courts referred to in
Articles 202 and 203 of the Constitution. However, by President Order No.l of 1980 i.e. The Constitution
(Amendment) Order, 1980, a new Chapter as 3-A under the caption "Federal Shariat Court" was added.
Article 203-A provided that "The provisions of this Chapter shall have effect notwithstanding anything
contained in the Constitution". The above Article with non obstante provision was incorporated in the
Constitution in order to facilitate the establishment of Federal Shariat Court and Shariat Appellate Bench of
this Court as otherwise the same would not have fit in? the original framework of the Constitution. Similarly,
by The Constitution (Twelfth Amendment) Act, 1991 (Act XIV of 1991), which was enforced with effect
from 27-7-1991, the establishment of Special Courts and Supreme Appellate Courts for heinous offences
were provided for a period of three years by Article 212-B of the Constitution. The above Constitutional
provision was incorporated in the Constitution as in the framework of the Constitution as obtaining in 1991,
the above Special Courts and Supreme Appellate Courts could not have been established under clause (1) of
Article 175 of the Constitution.
Reference may also be made to Article 225 of the Constitution which envisages the establishment of Election
15 24-Mar-20, 12:13 PM
Tribunals in respect of election disputes.
7. It may be pertinent at this juncture to refer to the case of Iftikhar Ahmad v. The Muslim Commercial Bank
Ltd. (PLD 1984 Lahore 69), wherein the vires of certain provisions of the Banking Companies (Recovery of
Loans) Ordinance (XI of 1979) were examined by Gul Muhammad Khan, J. (as he then was). In the
discourse of the judgment he highlighted material change which has been brought by Article 175 of the
Constitution as under:-
"7. There appears to be a very special feature in our 1973 Constitution. It includes a specific provision in
Article 212 for the constitution of Tribunals for purposes expressly given therein and provides for an appeal
before the Supreme Court. Article 175 only speaks of Courts. The Supreme Court of Pakistan and a High
Court for each Province have been created under that Article while power has been conferred on the
Legislature to create other Courts and also to confer jurisdiction on them. This position may be contrasted
with the Indian Constitution. Article 136(1) of that Constitution lays down that the Supreme Court may grant
special leave to appeal from any judgment etc., in any cause or matter, passed or made by any Court or
Tribunal in the territory of India. Article 227 states that every High Court shall have superintendence over all
Courts and Tribunals throughout the territories in relation to which it exercises I jurisdiction. Thus, while the
Indian Constitution recognises existence of Tribunals sharing judicial power with Courts, it is conspicuously
absent in the 1973 Constitution. This appears to be a very important departure from the previous
Constitutional. position as even Article 98(5) of the 1962 Constitution recognise Tribunals alongwith Courts.
Strangely enough, however, the power of superintendence of High Courts was conferred only with regard to
the Courts subordinate to them and not for Tribunals as in the Indian Constitution. It is thus clear that the
1973 Constitution of Pakistan recognises only such specific Tribunals to share judicial power with Courts, as
are particularly mentioned in Article 212 or elsewhere but none else. It may also be useful to note here that
neither a Court nor any other judicial Tribunal is relieved of the duty of deciding a matter before it justly,
fairly, equitably and objectively. The only difference is that a Tribunal is not as much bound by the rules of
procedure and the evidence as the Courts of law are. "
As regards the effect of the above change he opined as follows:
"33. Again, the concept that there will be a High Court for each Province has to have its plain meaning, in the
absence of a definition. Its clear concept will be that it is the highest Court in the Province and all other
Courts there, must be inferior to and be subject to its supervision. Further, as Article 175 of the Constitution
embodies the judicial power and also gives the hierarchy of the Courts i.e. a Supreme Court for Pakistan, a
High Court for a Province and some other Courts as may be created by the Legislature, 'the such other Courts'
must necessarily be inferior to the High Courts. "
It was concluded that the position in the pre-partition India before 1935 and after the enforcement of its
Constitution in 1950 has been that the High Courts had both administrative and judicial superintendence for
the Courts subordinate to them and that the power under Article 227 of the Indian Constitution was thought to
be superior but co-extensive with the ordinary revisional power wherever it was available. It was further
concluded that the Courts in Pakistan also rightly treated similar powers given to them under Article 177 of
1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right
of administrative as well as judicial superintendence over the subordinate Courts.
8.The above view was reiterated by a Division Bench of the Lahore High Court in the case of Altaf Hussain
v. The State (PLD 1985 Lahore 10):--
"On the contrary, the Article 175 of the 1973 Constitution does place the entire judicial power under the High
Court, subject to such specific exclusions which are expressly noted in some other Article like 212 etc.
Reference be again made to Abdul Hafeez v. The State, Article 175(3) further states that the judiciary shall be
progressively separated from the executive within the given time. No such provision existed in the 1962
Constitution. It is, therefore, quite evident that whereas the previous amalgam of the executive and judicial
powers must be separated within the given time, no new judicial function, other than the ones expressly
mentioned in the Constitution, shall be conferred on any executive authority, after the commencing date. This
Court has already taken the same view in Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. (PLD 1984
Lahore 69). Thus the Legislature cannot be considered to have given such power to a persona designata or
any other executive authority in a 1984 Ordinance. The Special Court, therefore, as it is also so named, is a
Court constituted under the Constitution, and is inferior to the High Court. "
Incidentally it may be mentioned that the above latter judgment was also rendered by Gul Muhammad Khan,
J. who was heading the Bench.
9. In the case of Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others (PLD 1996
16 24-Mar-20, 12:13 PM
Lahore 542) the vires of certain provisions of Offences in Respect of Banks (Special Courts) Ordinance (IX
of 1980) and of the Suppression of Terrorist Activities (Special Courts) Act, 1975, were examined by a Full
Bench of the Lahore High Court headed by Khalil-ur-Rehman Khan, C.J. (as he then was). After examining
inter alia Articles 175 and 203 of the Constitution it has been held that sections 3, 4 and 4-A of the Offences
in Respect of Banks (Special Courts) Ordinance, 1980 and sections 3, 4 and 4-A of the Suppression of
Terrorist Activities (Special Courts) Act, 1975, are unconstitutional as the same erode the independence of
judiciary. Consequently, the notifications appointing the Presiding Officers to the Special Courts were
quashed. In the body of the judgment it has been held that "So, wherever judicial power vests in a
body/forum, whether designated as a Court or Tribunal and any right or liability conferred on or ensuing
under a law is to be determined, the control and supervision over the said body/forum/Court or Tribunal
under the mandate of the Constitution has to vest in the High Court. It will also be noted that express power
has been conferred by the Indian Constitution to constitute/establish Tribunals alongwith the Courts in
respect of matters/subjects enumerated in Articles 323-A and 323-B which also provide for the exclusion of
judicial review by the High Courts and the theory of separation of Judiciary as is enshrined in Pakistan
Constitution is not contemplated in Indian Constitution".
Against the above judgment, the Federation filed appeals with the leave of this Court, namely, Civil Appeals
Nos. 1552 and 1553 of 1996, but the same were dismissed on 12-6-1997 as having become infructuous on the
basis of statement of the learned Deputy Attorney-General that the relevant law was amended in the light of
above High Court judgment.
We may also refer to the case of Chenab Cement Product (Pvt.) Ltd. and others v. Banking Tribunal, Lahore
and others (PLD 1996 Lahore 672). In the above case certain provisions of the Banking Tribunals Ordinance,
1984, were assailed on the ground of their being violative of inter alia Article 25 of the Constitution. A Full
Bench of the Lahore High Court held that section 4 of the above Banking Tribunals Ordinance providing for
establishment of the Banking Tribunals was ultra vires of the Constitution and the Banking Tribunals
constituted thereunder, were illegal and unlawful for the reasons recorded in Imran v. Presiding Officer,
Punjab Special Court No. VI, Multan and 2 others (PLD 1996 Lahore 542) (supra) decided by it.
Consequently, the notifications constituting and appointing Presiding Officers to the Tribunals concerned
were quashed. The Court also declared section 6(6) and the first proviso to section 9 of the Banking Tribunals
Ordinance, 1984 (as amended by Act VII of 1990) to be ultra vires of the Constitution.
10. (a) Reference may also be made to the case of Government of Balochistan through Additional Chief
Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341). In the above case an appeal with the leave
of this Court was filed by the Government of Balochistan against the judgment of the High Court of
Balochistan declaring the Criminal Law (Special Provisions) Ordinance, 1968 (Ordinance No.II of 1968)
being violative of Articles 2, 21, 9, 14, 25 and 175 of the Constitution. This Court while maintaining the
above judgment has observed as to the effect of Article 175 of the Constitution as follows:-
"Article 175 envisages separation and independence of judiciary which includes the lower judiciary as well.
The lower judiciary' is a part of the judicial hierarchy in Pakistan. Its separation and independence is to be
equally secured and preserved as that of the superior judiciary. The lower judiciary is more dependent and
prone to financial dependence and harassment at the hands of the executive. In practice and effect the
separation of judiciary is the main problem of the lower judiciary which under several enactments and rules is
practically under the control and supervision of the executive. Articles 175 and 203 lay down that the
judiciary including lower judiciary shall be separated from the executive and 'High Court shall supervise and
control all Courts subordinate to it'. Such .control and supervision can be achieved only when the judiciary is
administratively and financially separate from the executive. Separation of Magistracy is the first step
towards separation and independence. The next step should be taken to devise proper scheme and frame rules
dealing with financial problems within the framework of the Constitution. So long financial independence is
not achieved, it will be difficult to improve the working conditions, accommodation, building and expansion
to meet the growing needs of the people. "
It may also be advantageous to quote another extract from the above judgment on the above aspect, which
reads as follows:-
"Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent,
the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of
free access to justice is to appoint or hand over the adjudication of rights and trial of offence in the hands of
the Executive Officers. This is merely a semblance of establishing Courts which are authorised to decide
cases and adjudicate the rights, but in fact such Courts which are manned and run by executive authorities
without being under the control and supervision of the judiciary can hardly meet the demands of Constitution.
"
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In the above report after referring to the cases of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989
Karachi 404), Syed Abul A'la Maudoodi (PLD 1964 SC 673 at 710) and Ms. Benazir Bhutto (PLD 1989 SC
416), the following observation as to the right of access to justice has been made:-
"The right of 'access to justice to all' is a 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 summarised as follows:-
'(1)?????? He shall have due notice of proceedings which affect his rights.
(2)??????? He shall be given reasonable opportunity to defend.
(3)??????? That the Tribunal or Court before which his rights are adjudicated is so constituted as to give
reasonable assurance of his honesty and impartiality, and
(4)??????? That it is a Court of competent jurisdiction.
It therefore follows that in terms of Article 9 of the Constitution a person is entitled to have an impartial
Court and Tribunal. Unless au impartial and independent Court is established the right to have a fair trial
according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary
which should be separate from executive and not at its mercy or dependent on it'. "
(b) It will. be advantageous to reproduce an extract from para. 23 of the judgment in the case of Al-Jehad
Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation of Pakistan and
others (PLD 1996 SC 324), wherein it has been pointed out that the independence of Judiciary is inextricably
linked and connected with the Constitutional process of appointment of Judges of the superior Judiciary,
which reads as under:-
may reiterate that the independence of Judiciary is inextricably linked and connected with the Constitutional
process of appointment of Judges of the superior Judiciary. The relevant Constitutional provisions are to be
construed in a manner which would ensure the independence of judiciary. At this juncture, it may be stated
that a written Constitution is an organic document designed and intended to cater the need for all times to
come. It is like a living tree, it grows and blossoms with the passage of time in order to keep pace with the
growth of the country
_ and its people. Thus the approach, while interpreting a Constitutional provision should be dynamic,
progressive and oriented with the desire to meet the situation, which has arisen, effectively. The interpretation
cannot be narrow and pedantic. But the Court's efforts should be to construe the same broadly, so that it may
be able to meet the requirement of ever changing society. The general words cannot be construed in isolation
but the same are to be construed in the context in which, they are employed. In other words, their colour and
contents are derived from their context. "
(c) Reference may be made to the following extract from the opinion of one of us (Ajmal Mian, C J) from the
case of Sharaf Faridi v. Islamic Republic of Pakistan (PLD 1989 Karachi 404) (supra), wherein the
expression "the supervision and control over the subordinate judiciary" used in Article 203 of the
Constitution has been construed as under keeping in view Article 175 thereof:-
"I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court
under Article 203 of the Constitution keeping in view Article 175, is exclusive in nature, comprehensive in
extent and effective in operation. It comprehends the administrative power as to the working of the
subordinate Courts and disciplinary jurisdiction over the subordinate judicial officers. In this view of the
matter, any provision in an Act or any rule or a notification empowering any executive functionary to, have
administrative supervision and control over the subordinate judiciary will be violative of above Article 203 of
the Constitution. Besides, it will militate against the concept of separation and independence of judiciary as
envisaged by Article 175 of the Constitution and the Objectives Resolution. "
The above judgment has been upheld by this Court through the judgment reported under the title Government
of Sindh through Chief Secretary to the Government of Sindh, Karachi and others v. Sharaf Faridi and others
(PLD 1994 SC 105) (supra).
(c) We may also refer to an Urdu Book udder the title:
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by Shamsul Ulema Allama Shibli Nomani (1997 Edition) referred to by Mr. Muhammad Ikram Chaudhry as
to the concept of separation and independence of Judiciary introduced by Hazarat Umer Farooq ( ~V,r
.;,'?????????? ) (May Allah be pleased with him) during his Caliphate:--
In the above biography the author has quoted Arabic version of Hazrat Umer Farooq's above ( ~~j ) and has
deduced the following principles therefrom:
11. From the above case-law the following legal position obtaining in Pakistan emerges:-
(i) That Articles 175, 202 and 203 of the Constitution provide a framework of Judiciary i.e. the Supreme
Court, a High Court for each Province and such other Courts as may be established by law.
(ii)??????? That the words "such other Courts as may be established by law" employed in clause (1) of
Article 175 of the Constitution are relatable to the subordinate Courts referred to in Article 203 thereof.
(iii)?????? That our Constitution recognises only such specific Tribunal to share judicial powers with the
above Courts, which have been specifically provided by the Constitution itself Federal Shariat Court (Chapter
3-A of the Constitution), Tribunals under Article 212, Election Tribunals (Article 225). It must follow as a
corollary that any Court or Tribunal which is not founded on any of the Articles of the Constitution cannot
lawfully share judicial power with the Courts referred to in Articles 175 and 203 of the Constitution.
(iv)?????? That in view of Article 203 of the Constitution read with Article 175 thereof the supervision and
control over the subordinate judiciary vest in High Courts, which is exclusive in nature, comprehensive in
extent and effective in operation.
(v)??????? That the hallmark of our Constitution is that it envisages separation of the Judiciary from the
Executive (which is founded on the Islamic Judicial System) in order to ensure independence of Judiciary
and, therefore, any Court or Tribunal which is not subject to judicial review and administrative control of the
High Court and/or the Supreme Court does not fit in within the judicial framework of the Constitution.
(vi)?????? That the right of "access to justice to all" is a fundamental right, which right cannot be exercised in
the absence of an independent judiciary providing impartial, fair and just adjudicatory framework i.e. judicial
hierarchy. The Courts/Tribunals which are manned and run by executive authorities without being under the
control and supervision of the High Court in terms of Article 203 of the Constitution can hardly meet the
mandatory requirement of the Constitution.
(vii) That the independence of judiciary is inextricably linked and connected with the process of appointment
of Judges and the security of their K tenure and other terms and conditions.
12.?????? We will have to examine the various provisions of the A.T.A. in the light of the above legal
principles deducible from the case-law referred to hereinabove. However, before doing so we may refer to the
submission of Ch.Muhammad Farooq, learned Attorney-General, that the terrorism has attained global
magnitude and that in Punjab and Karachi there were very grave incidents of terrorism involving brutal
killings of innocent persons inter alia on sectarian basis inter alia at the places of worship. According to him,
the A.T.A. is founded on reasonable classification having nexus with the object for which it was enacted. In
this regard, it may be pertinent to mention that in the case of I.A. Sharwani and others v. Government of
Pakistan (1991 SCMR 1041) this Court while dealing with certain Constitutional petitions under Article
184(3) of the Constitution filed on behalf of the old pensioners assailing discriminatory treatment meted out
to them by the Government, the following principles of law on the question of classification were deduced
after referring the case-law of foreign jurisdiction as well as of Pakistani origin--
(i)???????? that equal protection of law does not envisage that every citizen is treated alike in all
circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
(ii)??????? that reasonable classification is permissible but it must be founded on reasonable distinction or
reasonable basis;
(iii)?????? that different laws can validly be enacted for different sexes, persons of different age groups,
persons having different financial standard and persons accused of heinous crimes.
(iv)?????? that no standard of universal application to test reasonableness of a classification can be laid down
as what may be reasonable classification in a particular set of circumstances, may be unreasonable
classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
19 24-Mar-20, 12:13 PM
(v)??????? that a law applying to one person or one class of persons may be constitutionally valid if there is
sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis
is no classification as to warrant its exclusion from the mischief of Article 25;
(vi)?????? that equal protection of law means that all persons equally placed be treated alike both in
privileges conferred and liabilities imposed;
(vii) that in order to make a classification reasonable, it should be based-
(a) on an intelligible differentia which distinguishes persons or things that are grouped together from those
who have been left out;
(b) that the differentia must have rational nexus to the object sought to be achieved by such classification.
The above quoted principles were reaffirmed by this Court in the case of Government of Balochistan through
Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341) (supra).
Indeed under above quoted sub-para. (iii), it has been laid down that different laws can validly be enacted for
different sexes, persons in different age groups, persons having different financial standing and persons
accused of heinous crimes. However, this does not mean that a parallel judicial system can be created in
violation of Articles 175, 202 and 203 of the Constitution. There can be Special Courts trying heinous crimes
expeditiously, but the same should be within the framework of the Constitution.
13. Ch.Muhammad Farooq, learned Attorney-General, has heavily relied upon the provisions of The Terrorist
and Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as TADA) besides referring to the
provisions of the Northern Ireland (Emergency Provisions) Act, 1973, and the Prevention of Terrorism
(Temporary Provisions) Act, 1974. He has also referred to the following cases: -
(i) Usmanbhai Dawoodbhai Memon and others v. State of Gujarat (AIR 1988 SC 922);
The facts of the above case were that an appeal with the special leave was filed before the Indian Supreme
Court against the judgments and orders of the Gujarat High Court and the orders passed by the various
Designated Courts (i.e. Special Courts) in the State constituted under section 9(1) of TADA. Two questions
were agitated before the Supreme Court, firstly, whether there was jurisdiction and power with the High
Court to grant bail under section 439 of the Code of Criminal Procedure or by recourse to its inherent powers
under section 482, and secondly, as to the nature of restraint placed on the powers of the Designated Courts to
grant bail to such persons in view of the limitations placed on such powers under section 20(8) of TADA. The
High Court had taken the view that there was total exclusion of its jurisdiction and, therefore, it could not
entertain an application for grant of bail under section 439. In other cases, the persons under detention had
applied for grant of special leave under Article 136 of the Constitution against the orders passed by the
various Designated Courts in the State refusing to grant bail on the ground that the power of a Designated
Court to grant bail is circumscribed by the limitations prescribed by section 20(8) of-the Act. The Supreme
Court upheld the orders of the High Court dismissing bail applications but set aside the orders of the various
Designated Courts dismissing the bail applications and directed them to consider each particular case on
merits in terms of section 3 and/or 4 of the Act. As regards the object and scope of TADA the following
observations were made:-
" 15. Before dealing with the contention advanced, it is well to remember that the legislation is limited in its
scope and effect. The Act is an extreme measure to be resorted to when the police cannot tackle the situation
under the ordinary penal law. The intendment is to provide special machinery to combat the growing menace
of terrorism in different parts of the country. Since, however, the Act is a drastic measure, it should not
ordinarily be resorted to unless the Government's law enforcing machinery fails.
16. As a matter of construction, we must accept the contention advanced by learned counsel appearing for the
State Government that the Act being a special Act must prevail in respect of the jurisdiction and power of the
High Court to entertain an application for bail under section 439 of the Code or by recourse to its inherent
powers under section 482. Under the scheme of the Act, there is complete exclusion of the jurisdiction of the
High Court in any case involving the arrest of any person on an accusation of having committed an offence
punishable under the Act or any rule made thereunder. There is contrariety between the provisions of the Act
and those contained in the Code. Under the Code, the High Court is invested with various functions and
duties in relation to any judgment or order passed by criminal Court subordinate to it. Those powers may be
briefly enumerated, namely, the jurisdiction and power to hear an appeal under section 374 against any
20 24-Mar-20, 12:13 PM
judgment or sentence passed by the Court of Session, the power to hear an appeal against an order of
acquittal by a criminal Court including the Court of Session under section 378, the power to hear a reference
as to the validity of any Act, Ordinance or Regulation or any provision contained therein made by a Criminal
Court under section 395, the confirmation of a death sentence on a reference by a Court of Session under
sections 366-367 and section 392, the power to grant bail under section 439 subject to certain limitations, the
inherent power under section 482 to make such orders as may be necessary or to prevent abuse of the process
of. the Court to otherwise secure the ends of justice. Undoubtedly, the High Court has the jurisdiction and
power to pass such orders as the ends of justice require in relation to proceedings before all criminal Courts
subordinate to it. "
(ii) An unreported judgment of the Indian Supreme Court dated 7-8-1990 in the case of Niranjan Singh
Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, in which the Indian Supreme Court was
seized of three appeals filed by the convicts against their convictions under TADA inter alia for murders.
While maintaining the convictions and sentences recorded by the Special Court under TADA, Ahmadi, J. (as
his Lordship then was) inter alia pointed out that the provisions of TADA are drastic in that they provide
minimum punishments and in certain cases enhanced punishments; make confessional statements made to a
police officer not below the rank of Superintendent of Police admissible in evidence and mandates raising of
a rebuttal presumption on proof of facts stated in clauses (a) to (d) of subsection (1) of section 21. It was also
observed that provision was made with regard to identification of an untraceable accused through
photographs. It was highlighted that the above provisions were special provisions introduced in TADA with a
view to controlling the menace of terrorism and that they were a departure from the ordinary law since the
said law was found to be inadequate and not sufficiently effective to deal with the special class of offenders
indulging in terrorist and disruptive activities.
(iii) Kartar Singh v. State of Punjab [(1994) 3 Supreme Court Cases 569];
In this case vires of the various provisions of TADA were assailed. In the above case a number of Writ
Petitions, Criminal Appeals and Special Leave Petitions were filed challenging the vires of the Terrorist
Affected Areas (Special Courts) Act No.61 of 1984), the Terrorists and Disruptive Activities (Prevention) Act
(No.31 of 1985) and the Terrorists and Disruptive Activities (Prevention) Act, 1987 (No.28 of 1987)
commonly known as TADA Acts. The case was heard by a Bench comprising five learned Judges. The
majority (4 to 1) held that all the provisions of TADA were intra vires except that section 22 (which provided
that "where a person has been declared a proclaimed offender in a terrorist case, the evidence regarding his
identification by witnesses on the basis of his photograph shall have the same value as the. evidence of a test
identification parade") was ultra vires. Consequently the same was struck down. There is elaborate discussion
as to the factum of terrorism and disruptive activities going on in the world and the justification for enactment
of TADA inter alia in para. 22, which reads as under:-
"22. Thus, terrorism and disruptive activities area worldwide phenomenon and India is not an exception.
Unfortunately in the recent past this country has fallen in the firm grip of spiralling terrorists' violence and is
caught between the deadly pangs of disruptive activities. As seen from the Objects and Reasons of the Act 31
of 1985, 'Terrorists had been indulging in wanton killings, arson, looting of properties and other heinous
crimes mostly in Punjab and Chandigarh' and then slowly they expanded their activities to other parts of the
country i.e. Delhi, Haryana, U.P. and Rajasthan. At present they have outstretched their activities by
spreading their wings far and wide almost bringing the major part of the country under the extreme violence
and terrorism by letting loose unprecedented and unprovoked repression and disruption unmindful of the
security of the nation, personal liberty and right, inclusive of the right to live with human dignity of the
innocent citizens of this country and destroying the image of many glitzy cities like Chandigarh, Srigarh,
Delhi and Bombay 6y strangulating the normal life of the citizens. Apart from many skirmishes in various
parts of the country, there were countless serious and horrendous events engulfing many cities with blood-
bath, firing, looting, mad killing even without sparing women and children and reducing those areas into a
graveyard, which brutal atrocities have rocked and shocked the whole nation. "
In para. 68 of the above judgment a comparison has been made between terrorism contemplated by TADA
and mere disturbances of public order disturbing the even tempo of life of community of any specified
locality in the following words:-
"68. The terrorism, the Act (TADA) contemplates, cannot be classified as mere disturbance of 'public order'
disturbing the 'even tempo of the life of community of any specified locality' in the words of Hidayatullah,
C.J. in Arun Gosh v. State of W.B. but it is much more, rather a grave emergent situation created either by
external forces particularly at the frontiers of this country or by anti-nationals throwing a challenge to the
very existence and sovereignty of the country in its democratic polity."
Indeed in the above case the establishment of the Special Courts under TADA has been upheld and even the
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provision contained in section 15(1) making a confession made by a person before a police officer not below
the rank of Superintendent of Police has been held intra vires. But in the minority view this has been held as
ultra vires.
14. However, we may point out that if we were to compare the provisions of TADA with the Act, it becomes
evident that there is a marked difference on material aspects. For example:
(i) That under section 9(4) of TADA it has been provided that "a Designated Court shall be presided over by a
Judge to be appointed by the Central Government or, as the case may be, the State Government, with the
concurrence of the Chief Justice of the High Court." Whereas under subsection (2) of section 14 of the Act, it
has been laid down that the Federal Government shall make appointments to the post of Judges of Special
Courts after consultation with the Chief Justice of the High Courts. Though in India in the case of Supreme
Court Advocates-on-Record Association and another v. Union of India (AIR 1994 SC 268) and in Pakistan in
the case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahabb-ul-Khairi and others v. Federation
of Pakistan and others (PLD 1996 SC 324) (supra), it has been held that the word 'consultation' used in the
relevant Articles of the Constitution for the appointment of the Judges in the superior Courts connotes that it
should be effective, meaningful, purposive, consensus oriented, leaving no room for complain of arbitrariness
or unfair play, but one cannot deny that there is a lot of difference in the import and scope between the words
"consultation" and "concurrence". In other words, in India no Presiding Officer can be appointed without the
concurrence of the Chief Justice of the High Court concerned.
(ii) That under subsection (6) of section 9 of TADA, it has been expressly provided that "A person shall not
be qualified for appointment as a Judge or an Additional Judge of a Designated Court unless he is
immediately before such appointment, a Sessions Judge or an Additional Sessions Judge in any State". In
other words, the Designated Courts are to be manned by the persons, who are members of the judicial
hierarchy provided under the framework of the Indian Constitution. Whereas in section 14 of the Act even an
outsider, an advocate having not less' than ten years' practice or a retired Sessions Judge can be appointed.
(iii) That since under TADA, the serving Sessions Judges and Additional Sessions Judges are to be inducted
to man the Designated Courts, they have the security of tenure; whereas under section 14 of the Act, there is
no security of tenure of the Judges to be appointed from outside the subordinate judiciary. .
(iv) That TADA under section 19, it has been provided that notwithstanding anything contained in the Code,
an appeal shall lie as a matter of right from arty judgment, sentence or order, not being an interlocutory order,
of a Designated Court to the Supreme Court both on facts and on law. Whereas in section 24 of the Act, the
appeal has been provided to a Tribunal consisting of one or two Judges of the High Court to be nominated by
the Chief Justice of the said High Court and to be notified by the Government. The effect of the above
difference in the above two provisions of the two Acts is that in India Special Courts/Designated Courts
remain within the ambit of judicial review and the framework provided in the Indian Constitution, whereas
section 24 of the Act excludes the jurisdiction of the High Court as a High Court but provides constitution of
a Tribunal or more than a Tribunal, which may comprise one Judge or two Judges of the High Court
concerned. This provision is to be read with section 31 of the Act, which lays down that a judgment or order
passed, or sentence awarded, by a Special Court, subject to the result of an appeal under this Act shall be
final and shall not be called in question in any Court. It may further be noticed that under section 19 of
TADA the appeal has been provided as a matter of right both on questions of fact and law. In other words, the
entire case of a convict is liable to be reopened and reappraised by the Indian Supreme Court; whereas, there
is no such right conferred on a convict under section 24 of the Act.
(v) That another important distinguishing feature is that under section 27 of TADA the Supreme Court has
been empowered to make such rules, if any, as it may deem necessary for carrying out the provisions of the
Act relating to Designated Courts, whereas under section 35 of the Act the Government has been empowered
to make such rules, if any, as it may deem necessary for carrying out the purposes of the Act through a
notification. Neither the High Court nor the Supreme Court has any say in the framing of the rules. It may be
pointed out , that though under section 28 of TADA the Government has also been given power to frame
rules but it is without prejudice to the powers of the Supreme Court contained in section 27. In other words, if
there be any conflict between the rules framed by the Supreme Court and the Government, the former shall
prevail.
(vi) Another striking feature of the Act is that the apex Court has been totally excluded in matters of judicial
review and also in respect of administrative matters like appointment of Judges.
15. We may also refer to another Indian Supreme Court judgment in the case of S.P. Sampath Kumar v. Union
of India (AIR 1987 SC 386) in which the mode of appointment of Administrative Tribunal in service matters
was assailed. It was held by the Indian Supreme Court that the provision relating to the appointment of the
22 24-Mar-20, 12:13 PM
Chairman, Vice-Chairman and administrative members of the Tribunal under Act was ultra vires. Bhagwati,
C.J. in his concurring note held that so far as the appointment of Chairman, Vice-Chairman and
administrative members of the Tribunal is concerned, the sole and exclusive power to make such appointment
is conferred on the Government under the impugned Act and that there is no obligation cast on the
Government to consult the Chief Justice of India or to follow any particular procedure in this behalf. It was
further held that the result is that it is left to the absolute and unfettered discretion of the Government to
appoint such person or persons as it likes as Chairman, Vice-Chairman and administrative members of the
Administrative Tribunal and, therefore, the above provision is ultra vires to that extent.
16. Ch. Muhammad Farooq, learned Attorney-General, has also referred to the treatise under the caption
"Constitutional and Administrative Law" (9th Edition) by E.C.S. Wada and G.Godfrey Phillips, wherein the
authors have referred to the Prevention of Terrorism (Temporary Provisions) Act, 1976, and have made the
following comments:-
"C. Prevention of Terrorism (Temporary Provisions) Act, 1976.
Special powers to deal with threats to security have long been known in Northern Ireland. It was under the
Civil Authorities (Special Powers) Act, 1922 passed by the Northern Ireland Parliament that internment of
suspected terrorists was introduced in 1971. That Act was eventually replaced by the Northern Ireland
(Emergency Provisions) Act 1973, passed by the United Kingdom Parliament and amended in 1975. It was
only when serious bomb attacks were made by the IRA in Birmingham in 1974 that Parliament within a few
hours passed the Prevention of Terrorism (Temporary Provisions) Act, 1974 to give additional powers to the
police and the Home Office for dealing in Great Britain with suspected terrorists. The 1971 Act was re-
enacted in 1973 with modifications, after fuller consideration from Parliament than had been given to it in
1974.
Part I of the Act restricts the freedom of association in Great Britain, making it an offence to belong to,
collect money or invite support for, or to arrange or to speak to a meeting in support of, any proscribed
organisation (section 1). The Act itself proscribes the IRA, but the Home Secretary may by order proscribe
any other organisation that appears to him to be promoting or encouraging terrorism in the United Kingdom
and connected with affairs in Northern Ireland. It is an offence to wear in public any item of dress or to
display any article (for example, a badge) demonstrating support for a proscribed organisation (section 2).
Part Il restricts the freedom of movement within the United Kingdom by authorising the Secretary of State to
issue exclusion orders to those suspected of being concerned with terrorist acts. The Secretary of State may
use these powers 'in such way as appears to him expedient to prevent acts of terrorism (whether in the United
Kingdom or elsewhere) designed to influence public opinion or Government policy with respect to affairs in
Northern Ireland' (section 3(1)). An exclusion order may (a) prohibit persons from being iii or entering Great
Britain (but such an order may not be made against a U.K. Citizen who has been ordinarily resident in Great
Britain for 20 years or was born in Great Britain and has always been ordinarily resident there); (b) prohibit
persons from being in or entering Northern Ireland, subject to a similar restriction; and (c) prohibit any
person who is not a citizen of United Kingdom (sections 4--6). Where an exclusion order is served on a
person, he or she may within four days submit written representations to the Secretary of State; such
representations are referred by the Secretary of State to a person nominated to act as an adviser (section 7).
The adviser will grant an interview to the subject of the exclusion order if he or she requests one, but the
procedure is not meant to have a quasi judicial form. An ,exclusion order empowers the person named to be
removed from Great Britain. Northern Ireland or the United Kingdom as the case may be (section 8). Such an
order could, for example, have the drastic effect of expelling from Great Britain a native of Northern Ireland
who for 15 years has been employed and resident in England and against whom no criminal convictions have
been recorded. "
There is no doubt that under the above Act the Home Secretary of United Kingdom has been given wide
powers to take effective steps including the power to impose restriction on the formation of association or to
prohibit entry of any person or to deport any person from the territory of U.K. However, we should not
overlook the fact that terrorism had been going on in England for several decades on account of the political
controversy about Northern Ireland, and, secondly, we will have to examine the provisions of the Act in the
light of our Constitution. In our view, simpliciter the fact that other foreign countries have also enacted
certain Acts to cope with the menace of terrorism will not warrant enactment of an Act in Pakistan, which
may be violative of the Constitution.
We may point out that this Court is not oblivious of the factum that the law and order situation has been
considerably deteriorated and new types of terrorism have emerged due to tremendous progress made in the
field of technology. This Court in more than one cases has held that the approach of the Court while
considering criminal matters should be dynamic and it should take into consideration the surrounding
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situation obtaining in the country and should not lightly set aside a conviction on technical grounds if the
Court's conscience is satisfied that factually the convict was guilty of the offence. In this regard, reference
may be made to the following observations of one of us (Ajmal Mian, CJ) in the following two cases:-
(i) State through Advocate-General, Sindh, Karachi v. Farman Hussain and others (PLD 1995 SC 1);
"2. Before touching upon the merits of the case, I may observe that there cannot be two opinions that the duty
of the Court is to administer the laws as are operative in the country and if such laws fail to achieve?????? the
desired result, then it is the duty of the Legislature to make
necessary amendments therein. However, at the same time, it is also a well-settled proposition of law that
while applying a particular law, the Court should take into consideration the object for which it has been
enacted. The interpretation of the law should be placed in a manner
which may advance the object and suppress the mischief for which the law in question might have been
enacted and not to construe in a manner which may defeat the object of the law.
3. It is a matter of public knowledge that in Sindh, on account of kidnapping for ransom, commission of
dacoities and other offences the people are feeling insecured. The learned trial Court has dilated upon these
aspects in detail. I am inclined to subscribe to the view found favour with it. The approach of the Court in
matters like the case in hand should be dynamic and if the Court is satisfied that the offence has been
committed in the manner in which it has been alleged by the prosecution, the technicalities should be
overlooked without causing any miscarriage of justice."
(ii) Zeeshan Kazmi v. The State (PLD 1997 SC 267);
"8. We may observe that it has now become common that the accused involved in heinous offences, if
succeed, in obtaining bail, jump the bail bonds. To check the above tendency and to provide deterrent special
provisions have been enacted and/or are being enacted in the special statutes prescribing the minimum
amount of bail bond for example, under section 5(7) of the Offences in Respect of Banks (Special Courts)
Ordinance, 1984, it has been provided that the bail amount would not be less than twice of the amount
involved in the commission of the offence. Keeping in view the above bleak scenario which has emerged,
with the passage of time on account of the lack of respect of the rule of law, and because of the
unprecedented continuous steep inflationary tendency resulting in the loss of money value, the Courts should
not show any undue leniency while forfeiting bail bond amount. Their approach should be dynamic and
progressive-oriented with the desire to discourage the accused persons to jump bail bonds. There is no legal
requirement that full bail bond amount should not be forfeited, on the contrary, once an accused person jumps
bail bond, the entire surety amount becomes liable to be forfeited in the absence of any mitigating
circumstances."
17. We may now revert to the provisions of the Act.
(i) It may be stated that subsection (1) of section 5 of the Act provides that any police officer, or member of
the armed forces, or civil armed forces, who is present or deployed in any area may, after giving sufficient
warning, use the necessary force to prevent the commission of terrorist acts or scheduled offences, and, in so
doing shall, in the case of an officer of the armed forces or civil armed forces, exercise all the powers of a
police officer under the Code. There is nothing wrong with the above provision. However, clause (i) of
subsection (2) thereof empowers a police officer or member of the above forces after giving prior warning to
use such force as may be deemed necessary or appropriate, bearing in mind all the facts and circumstances of
the situation, against any person, who is committing, or in all probability is likely to commit a terrorist act or
a scheduled offence. It also provides that it shall be lawful for any such officer, or any superior officer to use
force, or to order the firing upon any person or persons against whom he is authorised to use force in terms
thereof. The above provision is violative of Article 9 of the Constitution which guarantees that no person
shall be deprived of life or liberty save in accordance with law. The conferment of power on the officers
referred to in clause (i) of subsection (2) of section 5 without being fired upon by the accused is not
justifiable. An officer of any of the above forces under the present provision can kill any person, if he
considers that in all probability the former is likely to commit a terrorist act or scheduled offence. The
formation of opinion as to the probability or likelihood of commission of offence will vary from person to
person as it depends on subjective satisfaction. There is no check or guideline provided for the exercise of the
above power conferred by the above provision. We are, therefore, of the view that the aforesaid provision in
its present form is not sustainable. The same may be amended and it may be provided that the officer can fire
upon an accused person if he has been himself fired upon by him.
(ii) That it may be observed that section 10 of the Act empowers an officer of the police, armed forces or civil
armed forces on his being satisfied that there are reasonable grounds for suspecting that a person has in his
possession some written material or recording in contravention of section 8, he may enter and search the
24 24-Mar-20, 12:13 PM
premises where it is suspected that the material or recording is situated and may take possession of the same.
This is directly in conflict with Article 14 of the Constitution, which confers a fundamental right as to the
dignity of man by inter alia laying down that the dignity of man and, subject to law, the privacy of home shall
be inviolable. No doubt, that the above right of privacy is subject to law but such law is supposed to be
reasonable and in conformity with the constitutional mandate. In this regard, reference may be made to
section 165 Cr.P.C., which authorises an officer in charge of a police station or a police officer making an
investigation, if he is satisfied that reasonable grounds for believing that anything necessary for the purposes
of an investigation into any offence which he is authorised to investigate may be found in any place within
the limits of the police station of which he is in charge, or to which he is attached, and that such thing cannot
in his opinion be otherwise obtained without undue delay, he may after recording in writing the grounds of
his belief and specifying in such writing, so far as possible, the thing for which search is to be made, search
or cause search to be made, for such thing in any place within the limits of such station. The above provision
is in consonance with Article 14 of the Constitution and, therefore, in our view, section 10 of the Act in its
present form is not in accordance with law. The same should be suitably amended in order to provide that the
concerned officer of police, armed forces or civil armed forces shall record and serve on the person of the
premises concerned a copy of such reasons before conducting such search.
(iii) Though most of the learned counsel for the petitioners assailed section 19 as a whole, but we are of the
view that only clause (b) of subsection (10) of section 19 is violative of the fundamental right of access to
justice. The above clause (b) of subsection (10) of section 19 authorises a Special Court to order the removal
of an accused person from the Court if his behaviour is such as to impede the course of justice and then to
proceed with the case in absentia. An accused person for his misbehaviour in Court can be convicted for
contempt of Court and punished, but on no principle of law, he can be denied the right to be present and to
defend himself in a criminal matter. This Court has already held in the case of Government of Balochistan v.
Azizullah Memon (PLD 1993 SC 341) (supra) and Al-Jehad Trust v. Federation of Pakistan (PLD',, 1996 SC
324) (supra) that the right of access to justice is a well recognised and inviolable right enshrined in Article 9
of the Constitution, which lays down that no person shall be deprived of life or liberty save in accordance
with law. If an accused person is removed from the Court on account of his misbehaviour and in his absence
the trial is concluded and he is sentenced to death, he will be deprived of his life without due course of law.
Secondly, under clause (1) of Article 10 of the Constitution an accused person has the right to consult and be
defended by a legal practitioner of his choice in case he is arrested and detained.
We, therefore, declare the above provision as violative of the above constitutional provision and having no
legal effect.
(iv) On the basis of the above case-law, we have held hereinabove that the constitutional framework relating
to judiciary does not admit/permit the establishment of a parallel system of the Courts or Tribunals, which are
not under the judicial review and administrative control and supervision of the High Court. It may be pointed
out that where the Constitution makers wanted to provide judicial forums other than what is envisaged by
Articles 175, 202 and 203, they have expressly provided for the same in the Constitution. In this regard
reference may again be made to Article 212 of the Constitution, which envisages the establishment of
administrative Courts or Tribunals in respect of (a) matters relating to the terms and conditions of persons
who are or have been in the service of Pakistan including disciplinary matters; (b) matters relating to claims
arising from tortious acts of Government, or any person in the service of Pakistan or of any local or other
authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge
of his duties as such servant; or (c) matters relating to the acquisition, administration and disposal of any
property which is deemed to be enemy property under any law.
It may be stated that under Article 225 of the Constitution, it has been provided that no election to a House or
a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal
and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). Under the above provision
also Tribunals or Special Courts can be constituted which may be outside the purview of Articles 175, 202
and 203 of the Constitution.
It may again be pointed out that in 1991 by the Constitution (Twelfth Amendment) Act, 1991, by
incorporating Article 212-B in the Constitution, Special Courts were established for a period of three years
with effect from 27-7-1991. The above Courts were also outside the ambit of the above Articles i.e. Articles
175, 202 and 203 of the Constitution and, therefore, special provision was incorporated in the Constitution.
Lastly, it may again be observed that by the Provisional Constitution, Federal Shariat Court was established
by incorporating Chapter 3-A, as the same was to act independently from the judicial hierarchy contemplated
by Articles 175, 202 and 203 of the Constitution. In the present case the establishment of the Special Courts
is through an Act of the Parliament and is not founded on a constitutional provision and, therefore, if any of
its provision or provisions are in conflict with the constitutional provisions, the same cannot be sustained.
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It will not be out of context to mention again that even under Article 212 of the Constitution, which envisages
establishment of administrative Courts or Tribunals for adjudicating upon the disputes relating to the matters
specified under sub-clauses (a) to (c) of clause (1) of the above Article, an appeal is provided to the Supreme
Court. Similarly, under the relevant election law, namely, Representation of People Act, 1976, an appeal
against an order of an Election Tribunal lies to the Supreme Court. In the present case an appeal is provided
to an appellate Tribunal and not even to the High Court as such.
We are, therefore, of the opinion that sections 24, 25, 27, 28, 30 and 37 of the Act are also not valid in their
present form as they militate against the concept of independence of judiciary and Articles 175 and 203 of the
Constitution. They need to be amended as to vest appropriate powers in the High Court instead of Appellate
Tribunal. The words "High Court" in place of the words "Appellate Tribunal", wherever they appear, be
substituted.
(v) That section 26 of the Act provides that notwithstanding anything contained in Qanun-e-Shahadat Order,
1984 (President's Order 10 of 1984), a confession made by a person accused of any offence punishable under
section 7 or section 8 of the Act or an offence covered by sub-paragraph (a) of paragraph 2, or paragraph 3 of
the Schedule to the Act, or robbery or dacoity with murder or rape, before a police officer not below the rank
of a Deputy Superintendent may be proved against such person. The above provision seems to be violative of
Articles 13(b) and 25 of the Constitution. It may be observed that clause (b) of Article 13 of the Constitution
confers a fundamental right by providing inter alia that no person shall, when accused of an offence, be
compelled to be a witness against himself. Indeed a judicial confession is recorded by a Magistrate which is
admissible as a piece of evidence, but keeping in view the state of affairs obtaining in the police force, we
cannot equate a police officer with a Magistrate. Additionally, there are very strict requirements which a
Magistrate is required to comply before recording a judicial confession of an accused person. These
requirements do not find place in the impugned section of the Act. It is true that it will be for the Special
Court concerned or for the Appellate Tribunal to accept or not to accept a confession recorded by a police
officer specified in the above section, but the fact remains that such a confession is not in consonance with
the law and the Constitution. At this juncture, it will not be out of context to refer to a treatise titled "Kitab-
ul-Fiqa" (Volume 5) by Abdur Rehman Al-Jaziri, translated by Manzoor Ahsan Abbasi, in which it has been
highlighted that under Islamic Jurisprudence a confession cannot be accepted lightly and that it has certain
mandatory requirements. In this regard, the following extract from the above book may be instructive:-
A perusal of the above quoted extract would indicate that under Hanfi School of thought a confession is
admissible if an accused person admits his guilt/crime four times at four different places. The author has
referred to a Hadith attributed to Hazrat Abu Huraira (May God be pleased with him) that our Holy Prophet
(Peace be upon him) was not inclined to accept the confession of a person for having committed Zina with a
woman and asked him to go away, but he came back four times and made confession and even then our Holy
Prophet (peace be upon him) asked him certain questions in order to ascertain, whether the person was in fact
guilty of Zina in order to award punishment of Hadd.
We are, therefore, of the view that the above section 26 cannot be sustained, the same requires to be suitably
amended by substituting the words "police-officer not below the rank of a Deputy Superintendent of Police"
by the words "Judicial Magistrate".
(vi) It may be observed that the learned counsel for the petitioners urged with vehemence that the power
given under section 34 of the Act to the Government to amend the Schedule to the Act so as to add any entry
thereto or modify or omit any entry therein by a notification is ultra vires the Constitution. It has been further
urged by them that the above power has been abused inasmuch as many offences have been included which
have no nexus with the
object of the Act or with the offences covered by sections 6, 7 and 8 thereof. In this regard, it may be
pertinent to mention that delegation of such power to the Government by the Legislature is not an unusual
phenomenon. In order to implement the object of a statute or to work out certain detail, such power is
normally delegated. In this regard, reference may be .made to the case of Zaibtun Textile Mills Ltd v. Central
Board of Revenue and others (PLD 1983 SC 358). In the above case, the Legislature had conferred power on
the Central Board o1 Revenue to formulate guidelines to determine rate of production, capacity tax and even
to levy tax under section 3(4), (5), (6), (7) of the Central Excises and Salt Act, 1944, as amended by the
Finance Act, 1966. The above provision was assailed but this Court held that the Legislature was competent
to employ proper agency to accomplish its legislative purpose. Reference may also be made to the case of
Muhammad Hussain Gulam Muhammad and another v. The State of Bombay and another lshwarbhai
26 24-Mar-20, 12:13 PM
Becharbhai and others. Interveners (AIR 1962 SC 97), in which also such delegation was upheld by the
Indian Supreme Court.
However, it may be observed that the offences mentioned in the Schedule should have nexus with the object
of the Act and the offences covered by sections 6, 7 and 8 thereof. It may be stated that section 6 defines
terrorist acts, section 7 provides punishment for such acts, and section 8 prohibits acts intended or likely to
stir up sectarian hatred mentioned in clauses (a) to (d) thereof. If an offence included in the Schedule has no
nexus with the above sections, in that event notification including such an offence to that extent will be ultra
vires. In this regard reference may be made to the case of Government of Balochistan through Additional
Chief Secretary v. Azizullah Memon (PLD 1993 SC 341) (supra), of which certain relevant portions have
already been quoted hereinabove in para. 10(a). It will be instructive to quote the following observation of the
issue of nexus:-
"Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and
certain class of cases or class of persons or inhabitants of an area are not allowed to approach such Courts and
are to be tried or rights adjudicated by Special Courts, then a fair, rational and reasonable classification must
be made which have nexus with the object of the legislation."
We may also refer to the case of Darvesh M. Arbey v. Federation of Pakistan (PLD 1977 Lahore 846),
wherein a Full Bench of the Lahore High Court comprising the then Chief Justice and four companion Judges
while considering Constitution (Seventh Amendment) Act, 1977, and the amendment in the Army Act has
dealt with the question of nexus as under:-
"6. It is important to note that even a nexus or connection has not been provided by the amendment between
the offences made exclusively triable by the Military Courts by virtue of this amendment and the object for
which the Armed Forces had been called :n Lahore i.e. to
restore law and order. The result is that even to that extent this amendment in the Army Act, has in fact,
resulted in the displacement of the ordinary criminal Courts in the District of Lahore by the Military Courts.
The provision in the proviso to section 3 of Act X of 1977 that the authorised Army Officer can transfer any
such case, in his discretion, to the ordinary criminal Courts, does not in our view improve the status of the
ordinary Courts.
7. It is, therefore, obvious that to the extent that the Courts established by the Armed Forces are trying
civilians of Lahore for offences which have no nexus with the object for which they are said to have come,
they (i.e. the Armed Forces) are not acting "in aid" of the civil power but in derogation or replacement
thereof. This is certainly not envisaged by Article 245(1) of the Constitution. It is evident from a reading of
Article 245(1) that the "laws" subject to which the Armed Forces are required to act under that Article are
intended to be of a nature as would not place the Armed Forces in a position superior or dominant to that of
the civil power or to bestow such powers on them that, instead of acting in aid of the civil power, the armed
Forces, in fact, start acting in super session or displacement of the civil power. We are, therefore, of the view
that as far as Act X of 1977, (which amends the Army Act, 1952), is concerned, the most essential pre-
condition prescribed by clause (3) of Article 245 which is mentioned by the learned Attorney-General as the
2nd jurisdictional fact, is absent. Consequently, we hold that clause (3) of Article 245 does not have the effect
of ousting the jurisdiction of this Court under Article 199. "
It was urged by Mr. Gilani, learned counsel for some of the petitioners, that a perusal of the amended
Schedule indicates that if the victim of a murder case under section 302, P.P.C. is a member of police, armed
forces or civil armed forces or a public servant, the accused of such a case is triable under A.T.A. even if the
murder had taken place on account of personal enmity and had nothing to do with the discharge of his official
functions/duties. Whereas,
Ch.Muhammad Farooq, learned Attorney-General, has submitted that in order to terrorise the public servants
so that they may not discharge their functions/duties efficiently and effectively, the terrorists started killing
public servants, for example, the Commissioner of Sargodha, a Secretary of the Provincial Government in
Lahore, Superintendent of Police, Gujranwala, and the Managing Director, K.E.S.C. Karachi, were brutally
murdered. According to him, the above acts of terrorism were intended and designed to create panic amongst
the public servants. It will Suffice to observe that if a Government servant or any other employee of the
Government functionaries is murdered because he belongs to the above service and that there was no enmity
or plausible reason for commission of the above offence, such a killing is an act of terrorism within the ambit
of the Act and can lawfully be included in the Schedule, but if the murder is committed solely on account of
personal enmity, such a murder will have no nexus with the above provisions of the Act and will not be
triable under the Act. However, this is a matter to be decided by the Special Court as under section 23 of the
Act Special Court has been empowered to transfer a case to a regular Court if after taking cognizance of an
offence, it is of the opinion that the offence is not a scheduled offence.
27 24-Mar-20, 12:13 PM
We are, therefore, of the view that the above section 34 is not ultra vires, but the offences mentioned in the
Schedule should have nexus with the object of the Act and the offences mentioned in sections 6, 7 and 8 of
the Act, as held by us in the short order.
(vii) It may be mentioned that section 35 of the Act empowers the Government to frame rules through a
notification, which it may deem necessary for carrying out the purposes of the Act. Since we have already
held that under sections 24, 25, 27, 28, 30 and 37 of the Act 'High Court' should be substituted in place of
'Appellate Tribunal' and as the Special Courts are to operate/function under the control and supervision of the
High Court concerned in terms of Article 20 of the Constitution, the power to frame rules should vest in the
High Court and not in the Government. We, therefore, hold that section 35 of the Act in its present form is
not valid as it militates against the concept of independence of judiciary and is also violative of Articles 175
and 203 of the Constitution and, therefore, it needs to be suitably amended in the light of the above finding.
(viii) It may be observed that section 14 of the Act which provides for composition and appointment of
Presiding Officers of Special Courts does not provide for the security of the tenure of the Judges appointed
thereunder. The security of tenure of Judges is a sine qua non for independence of judiciary. This has been so
held inter alia in the case of AI-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) (supra), where at
page 499 the following observation has been made by one of us (Ajmal Mian, C.J.):-
"There seems to be force in the above contention of Mr. S.M. Zafar as admittedly there is no security of
tenure for an acting incumbent. We have experienced recently that Mr. Justice Saad Saood Jan, the senior
most Judge of the Supreme Court, was appointed as Acting Chief Justice of Pakistan against the permanent
vacancy but the notification of his appointment was withdrawn within a day without assigning any reason
after about one and a half months. Same is the position of an Acting Judge of the Supreme Court as under
clause (2) of Article 181, it has been provided that 'An appointment under this Article shall continue until it is
revoked by the President'. The case of an Acting Chief Justice of a High Court is also identical as he can also
be removed at any tipte. "
In this regard, it may be pertinent to point out that when in 1991 Article 212-B was incorporated in the
Constitution for a period of three years referred to hereinabove, the security of the tenure was guaranteed
under clause (4) thereof as under:-
"(4) A person other than a Judge of a High Court who is appointed as a Judge of a Special Court shall hold
office for the period this Article remains in force and shall not be removed from office except in the manner
prescribed in Article 209 for the removal from office of Judge, and, in the application of the said Article for
the purposes of this clause, any reference in that Article to a Judge shall be construed as a reference to a
Judge of a Special Court."
The framers of the above provision of the Constitution were mindful of the fact that in the absence of security
of tenure no Judge can function impartially and independently. We, therefore, hold that the above section 14
is required to be suitably amended preferably in line with above clause (4) of'' Article 212-B of the
Constitution.
(viii) We have not dilated upon section 16 of the Act relating to the oath by the Judges of the Special Courts
as the learned Attorney-General had given an undertaking before the High Court referred to in the judgment
under appeal to get the same suitably amended for the non-Muslim Judges. The above undertaking is to be
complied with.
18. We may state that above declarations in respect of the provisions of the Act referred to hereinabove will
not affect the trials already conducted and convictions recorded under the Act and the pending trials may
continue subject to the above as ordered by us in the short order. However, it was urged by Mr. M. Asghar
Khan Rokri, Advocate on behalf of Mehram Ali petitioner in C.P.L.A. No.251 of 1998, that since constitution
of the Tribunal itself was violative of the Constitutional provisions, the trial of the petitioner was vitiated. The
above contention is not tenable. In the case of Imran v. Presiding Officer, Punjab Special Court No.VI,
Multan and 2 others (PLD 1996 Lahore 542) a Full Bench of the Lahore High Court has saved the decided
cases as follows:-
"23. Before parting with the cases we may also state that the declarations made by us in this judgment shall
not affect cases past and closed or invalidate the judgments, orders or sentences passed or the proceedings
which may have become final. The appeals pending in the High Court shall be disposed of in accordance
with law. The files of the cases pending with the Special Courts shall be transmitted to the High Court for
entrustment to the Courts of competent jurisdiction for disposal in accordance with law."
28 24-Mar-20, 12:13 PM
The same view was reiterated by the above Full Bench in the case of Chenab Cement Product (Pvt.) Ltd. and
others v. Banking Tribunal, Lahore and others (PLD 1996 Lahore 672) by observing as follows:-
"u. Before parting with the case we may also state that the declarations made by us in this judgment shall not
affect cases past and closed or invalidate the judgments/decrees, orders, fines or sentences or proceedings
which have become final. As a result of this judgment no vacuum will be created as these cases are also
triable by the Courts created under the Banking Companies (Recovery of Loans) Ordinance, 1979, which can
also try cases under the Islamic system of Banking after the amendment of the definition of loan by the
amending Ordinance No. 58 of 1980."
It may be mentioned that in the case of Malik Asad Ali and others v. Federation of Pakistan through
Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161) decided by a
Bench of ten Hon'ble Judges of this Court, the above view was reiterated as under:-
"142. From the above discussion, it follows that the recognition of the principle of de facto exercise of power
by a holder of the public office is based on sound principles of public policy to maintain regularity in the
conduct of public business, to save the public from confusion and to protect private right which a person may
acquire as a result of exercise
of power by the de facto holder of the office. However, in the present cases only the acts done and orders
passed by respondent No.2 in his de facto capacity of Chief Justice of Pakistan before 26-11-1997 will be
protected under the doctrine of de facto exercise of power as on that date, he was restrained by a Bench of
this Court through a judicial order from exercising any judicial or administrative function as the Chief Justice
of Pakistan. "
??????????????????????? It may also be pointed out that Bhagwati C.J. in the case ,of S.P. Sampath Kumar v.
Union of India and others (AIR 1987 SC 386) (supra) while holding that the provision relating to
appointment of Chairman, Vice-Chairman and Administrative Members of the Administrative Tribunal was
violative of the Constitution observed that "I would, however hasten to add that this judgment will operate
only prospectively and will not invalidate appointments already made to the Administrative Tribunal. But if
any appointments of Vice-Chairman or Administrative Members are to be made hereafter, the same shall be
made by the Government in accordance with either of the aforesaid two modes of appointment".
In this view of the matter, we reiterate our above short order that the above declarations will not affect the
trials already concluded and convictions recorded under the Act and pending trials may continue subject to
the above.
19 Before concluding the above discussion, we may observe that Mr. M Asghar Khan Rokri, learned counsel
for the petitioner Mehram Ali in C.P.L.A. No.251 of 1998, contended that the Special Court committed
serious irregularities in the trial of the case inasmuch as the charge was wrongly framed and 'the evidence
was not recorded in terms of section 304, P.P.C. and, therefore, the conviction and sentence cannot be
sustained. It will suffice to observe that the above alleged irregularities cannot be urged in the above petition
for leave as it has arisen out of the dismissal of the petitioner's Constitutional petition. The aforesaid alleged
irregularities could have been urged before the trial Court and/or before the Appellate Tribunal. Even
otherwise, this Court would not like to interfere with the impugned judgments on the, above technical
ground. Reference may be made to the judgment of this Court in the case of State v. Farman Hussain (supar)
'referred to hereinabove in Para 16, wherein it has been emphasised that if a Court is satisfied about the guilt
of the accused person concerned, the technicalities should be overlooked without causing any miscarriage of
justice. The Special Court found the petitioner as guilty in respect of an explosion resulting into death of 23
persons and causing injuries to 55 persons. The Appellate Tribunal has affirmed the above finding with the
modification that on account of want of post-mortem reports of 20 victims, it has modified conviction in
respect of murders inasmuch as it affirmed the conviction on 3 counts only.
20. The above Constitutional petitions and Petitions for Leave to Appeal stand disposed of in the above
terms.
(Sd.)
Ajmal Mian, C.J
(Sd.)
Saiduzzaman Siddiqui, J
respectfully agree in its entirety. However, a brief note is added
29 24-Mar-20, 12:13 PM
(Sd.)
Irshad Hasan Khan
(Sd.)
Raja Afrasiab Khan, J
(Sd.)
Muhammad Bashir lehangiri, J
IRSHAD HASAN KHAN, J.---I am in respectful agreement with the illuminative judgment proposed to be
delivered by the Hon'ble Chief Justice. I would, however, add that 'Efficiency in the Courts' is serious
national problem, an expression of greater public concern than even the threat of war. Article 37(d) of the
Constitution of Islamic Republic of Pakistan, 1973, enjoins upon the State to ensure 'inexpensive' and
'expeditious justice'. Thus visualized, speedy resolution of civil and criminal cases, is an important
constitutional goal, as envisaged by the principles of policy enshrined in the Constitution. It is, therefore, not
undesirable to create Special Courts for operation with speed but expeditious disposition of cases of terrorist
activities/heinous offences have to be subject to Constitution and law. Viewed in this perspective, no
objection can be taken to the establishment of Special Courts for speedy trials and prevention of terrorist
acts/heinous offences under the Anti-Terrorism Act, 1997 Act No.XXVII of 1997) (hereinafter referred to as
the Act).
The Special Courts are, therefore, validly constituted Courts but they have to perform judicial functions under
the Constitution and the provisions contained in the Act except those which have been declared ultra vires in
the ', proposed judgment of the Hon'ble Chief Justice.
2. The solution of the problem of Court-delay does not necessarily lie in a large scale addition of new Judges
or creation of Special Courts but delay in the disposal of cases can be reduced only by Judges who are willing
to insist that the lawyers/prosecutors/parties meet reasonable dead-lines for the conclusion of the trial. This
effort will require concern and commitment on the part of the Judges. Judges will probably receive
considerable "heat" from lawyers/prosecutors understandably upset by changes in their scheduling
prerogatives. Be that as it may, delay in disposition of cases can be eliminated to a larger extent through good
Court management and not necessarily by creation of new Courts' and increase in the strength of Judges. I
would emphasise that it is for the Presiding Officer of the Court to evolve strategies within the parameters of
the law/procedure for accelerating the. pace of disposition of civil and criminal cases, resulting in reduction
of delay and clearance of backlog. However, 1 would add a note of caution that sacrifice of justice to obtain
speedy disposition of cases could hardly be termed as justice. A balance ought to be maintained between the
two commonly known maxims, "justice delayed is justice denied" and "justice rushed is justice crushed". I do
not suggest that speed and efficiency ought not to be ultimate measure of a Court but it should not be at the
expense of justice.
3. It would be advantageous to reproduce the following passage from the book entitled "JUSTICE
DELAYED" (a publication of the National Center for State Courts in cooperation with The National
Conference of Metropolitan Courts), by Thomas Church, Jr., which reads thus:-
"The Resource-Workload Nexus: Adding Judges or Decreasing Filings. Serious empirical research on trial
Court delay began in 1959 with delay in the Court, a study that was grounded on the proposition that, 'while
study is indispensable for disclosing the exact Additional Judge power needed to cure delay, it needs no ghost
come from the grave to tell us that delay can be cured by adding more Judges'. This assumption was accepted
in most of the Courts we visited in 1977; the one constant theme was an alleged need for more Judges, a
reduction in caseload through various diversion programmes, or both.
This research provides no basis by which to assess the objective need for additional Judges in any Court. It is
probable that real differences in jurisdiction, organization, and procedures across Courts would make the
attempt at such an analysis unfruitful. The preceding analysis, however, sheds some light on the likely
success of adding Judges or reducing filings as a cure for Civil or Criminal Court delay.
The date indicates enormous variation from Court to Court in productivity or case output per Judge. Even
allowing for inter-Court differences in record keeping, case complexity, and the like, this wide variation
strongly suggests (a) considerable differences in the amount of effort Judges expend in these Courts, or (b)
variation in the efficiency or productivity of that effort, or (c) both. No matter which conclusion is reached, it
30 24-Mar-20, 12:13 PM
would appear that the case output per Judge of at least the low productivity Courts could be improved. This
conclusion is supported in an empirical study of case productivity of Federal District Courts. This study
found, after analysis of aggregate data on all Federal District Courts over a five-year period, "that Courts
produce more output with no additional resources when the demand for Court services increases (thereby
implying) the existence of underutilized judicial resources in the District Courts."
4. I would also reiterate the view taken by the Hon'ble Chief Justice in his proposed judgment that a Special
Court is a Court subordinate to the High Court. It has to act under its supervision and control. The learned
Chief Justice has made some references to the case of Iftikhar Ahmed v. The Muslim Commercial Bank Ltd.
(PLD 1984 Lah. 69). I would also emphasise the following passages in the report:-
"The result seems to be that the High Court has unlimited Constitutional discretionary power to supervise and
control all such forums, by whatever names called, if they exercise judicial power in the Province and this
jurisdiction, would encompass the judicial decisions as well as the administrative actions so that the
particular judgments and orders as well as the main stream of justice are kept pure and clean and the Courts
are directed to remain within the bounds laid down by law and the superior Courts. The High Court may even
go to the extent of taking disciplinary action against the delinquent officers as is supported hereinafter.
Thus, the position in the pre-Partition India before 1935 and after the enforcement of its Constitution in 1950
has been that the High Courts had both the administrative and judicial superintendence over the Courts
subordinate to it. The power under Article 227 of the Constitution was thought to be superior but
co‑extensive with the ordinary revisional power, wherever it was available. The Courts in Pakistan as
discussed above, therefore, also rightly treated the similar powers given to them under Article 177 of the
1956 Constitution, Article 102 of 1962 Constitution and Article 203 of 1973 Constitution as conferring right
of administrative as well as judicial superintendence over its subordinate Courts. The result is that this
application is maintainable under Article 203 of the Constitution, but as the Special Court withdrew its
previous order on the commitment of the petitioner that he will pay the balance amount in lump sum within
the period specified, and there is no miscarriage of justice or an illegality calling for interference, this
application has no merit."
5. Before concluding I may observe that as a result of proposed judgment by this Court no vacuum will be
created, in that, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), which is a
self‑contained Code for the holding of criminal trials, has been made applicable to the proceedings before a
Special Court and for the purpose of the said provisions of the Code, a Special Court shall be deemed to be a
Court of Session by virtue of section 32 of the Act. It may also be observed that by virtue of Article 1(2) of
the Qanun‑e-?Shahadat, 1984 (Act 10 of 1984), its operation extends to the whole of Pakistan and applies to
all judicial proceedings in or before any Court, including a Court?martial, a Tribunal or other authority
exercising judicial or quasi‑judicial powers of jurisdiction, but does not apply to proceedings before an
arbitrator.
????? 6.??? Above are the reasons in addition to the exhaustive reasons given by the Hon'ble Chief Justice in
his proposed judgment in support of the short order.
(sd)
Irshad Hasan Khan, J
M.B.A./M‑165/S ????????????????????????????????????????????????????????? Order accordingly
31 24-Mar-20, 12:13 PM

P L D 1998 Supreme Court 1445

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P L D 1998 Supreme Court 1445 https://pakistanlawsite.com/Login/PrintCaseLaw?

P L D 1998 Supreme Court 1445

Present: Ajmal Mian, C.J., Saiduzzaman Siddiqui

MEHRAM ALI and others---Petitioners

FEDERATION OF PAKISTAN and others---Respondent

(a) Anti-Terrorism Act (XXVII of 1997)---

(b) Anti-Terrorism Act (XXVH of 1997)---

----S. 10---Constitution of Pakistan (1973), Art.14---Power to enter or search--Inviolability of dignity of

----S. 19(10)(b)---Constitution of Pakistan (1973), Art.10---Procedure and powers of Special Court---

(d) Anti-Terrorism Act (XXVII of 1997)---

---.-S. 24---Constitution of Pakistan (1973), Arts.175 & 203---Appellate Tribunal---Provision of S.24 of

(e) Anti-Terrorism Act (XXVII of 1997)---

(f) Anti-Terrorism Act (XXVII of 1997)---

(g) Anti-Terrorism Act (XXVII of 1997)---

e(h) Anti-Terrorism Act (XXVII of 1997)---

(i) Anti-Terrorism Act (XXVII of 1997)---

----S. 37---Constitution of Pakistan (1973), Arts.175 & 203---Contempt of Court---Provision of S.37 of

(j) Anti-Terrorism Act (XXVII of 1997)--- .

Kitab‑ul‑Fiqa, Vol. 5 by Abdur Rehman Al‑Jaziri ref.

(k) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

(1) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

(m) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

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

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

----Art. 2A---Independence of Judiciary---Separation of Judiciary from Executive---Hallmark of Constitution

(p) Constitution of Pakistan (1973)---

----Art. 25---Equality of citizens---Classification---Principles

(vii) that in order to make a classification reasonable, it should be based-

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

(s) Criminal trial---

----Terrorism---Conviction---Approach of the Court while considering criminal matters should be dynamic

(t) Anti-Terrorism Act (XXV11I of 1997)---

(u) Anti-Terrorism Act (XXVII of 1997)---

(w) Constitution of Pakistan (1973)---

----Arts. 175, 202 & 203---Establishment and jurisdiction of Courts--Framework---Constitutional framework

(x) Anti-Terrorism Act (XXVII of 1997)---

(y) Anti-Terrorism Act (XXVII of 1997)---

(z) De facto, doctrine of--

(aa) Anti-Terrorism Act (XXVII of 1997)---

Per Irs:iad Hassan Khan. J.-

(bb) Anti-Terrorism Act (XXVH of 1997)---

----Preamble---Constitution of Pakistan (1973), Art.37(d)---Promotion of social justice and eradication of

(cc) Administration of justice---

----Court-delay in disposal of cases---Remedy

(dd) Anti-Terrorism Act (XXVII of 1997)---

Dates of hearing: 11th May to 15th May, 1998.

Tribunals in respect of election disputes.

As regards the effect of the above change he opined as follows:

(2)??????? He shall be given reasonable opportunity to defend.

(4)??????? That it is a Court of competent jurisdiction.

(c) We may also refer to an Urdu Book udder the title:

(vii) that in order to make a classification reasonable, it should be based-

"C. Prevention of Terrorism (Temporary Provisions) Act, 1976.

(ii) Zeeshan Kazmi v. The State (PLD 1997 SC 267);

17. We may now revert to the provisions of the Act.

Ajmal Mian, C.J

respectfully agree in its entirety. However, a brief note is added

Irshad Hasan Khan

Raja Afrasiab Khan, J

Muhammad Bashir lehangiri, J

M.B.A./M‑165/S ????????????????????????????????????????????????????????? Order accordingly

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