Constitutional Law2 (2 Files Merged)

PART-1
Introductory
Article 1. The Republic and its territories
Art 2. Islam to be State Religion
Art 2A. Objectives Resolution as substantive part of
the Constitution
Art 3. Elimination of Exploitation
Art 4. Right to be dealt with in accordance with law
Art 5. Loyalty to State and Obedience to
Constitution and Law
Art 6. High Treason
Are FATA/ PATA/ Northern Areas part of Pakistan?
Appeals filed by persons serving in Northern Areas
Recently, appeals filed by persons serving in Northern Areas: Service Tribunal had
been constituted under Article 212 of the Constitution of Pakistan to exercise
exclusive jurisdiction in respect of matters relating to the terms and conditions of
persons who were or had been serving in Service of Pakistan. It also has the
jurisdiction to hear appeal of the civil servant as defined in section 2(a) of the
Service Tribunal Act, 1973 and sec. 2(1) (b) of the Civil Servants Act, 1973.
Service Tribunal Act does not include civil servants employed in Northern Areas
only. Exercise of jurisdiction by tribunal beyond the provisions of Constitution and
the Act, would be void, without jurisdiction and of no legal effect.
(2002 PLC (CS) 498 (b))
Northern Areas are part of Pakistan
A stunning blow was delivered by the Supreme Court to the notion of special
areas, deprived of the benefits of the Constitution, in the case of Al-Jehad Trust v
Federation of Pakistan (1999 SCMR 1379), wherein the Court assumed jurisdiction
under Article 184 (3) on a petition filed before it, seeking the enforcement of
fundamental rights of the people of Northern Areas. It may be clarified that the
Constitution makes no mention of Northern Areas. The Supreme Court
nevertheless assumed jurisdiction, the matter being of public importance relating to
enforcement of fundamental rights. The Court ruled that the people of Northern
Areas are citizens of Pakistan for all intents and purposes and like other citizens
have the right to invoke any of the fundamental rights and liable to pay taxes and
other levies, competently imposed.
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 History of Constitutional status is discussed in this case. (2010 GBLR 1)
 Gilgit-Baltistan by virtue of Art. 1(2)(d) of the Constitution, for all intents

and purposes is part of Pakistan. (2010 GBLR 160)
Azad Jammu and Kashmir
 Any territory which does not constitute part of the Republic of Pakistan, as
defined in the Constitution, is a foreign territory. Therefore, the State of
Jammu and Kashmir occupied by India is a foreign territory. (PLD 1985 SC
(AJK) 62, PLD 1966 SC 88)
 Territory of Azad Jammu and Kashmir is not part of Pakistan. (PLD 2005
SC 373)
 State Bank of Pakistan controls the licensing policy of the Banks, once
issued, it is applied to all the Banks wherever they are and does not need
ratification or adaptation by AJK Council.
 Contention that AJK is not part of Pakistan, hence policy of State Bank does
not apply in Kashmir unless the AJK’s Council adopts the same is devoid of
force.
 AJK is a territory included in Pakistan in view of Art. 1(2)(d) of Constitution

of Pakistan and it cannot be said that State Bank of Pakistan is foreign Bank
or that AJK is a foreign territory for Pakistan or vice-verse. (PLD 2006 AJK
1)
FATA and PATA
Tribal Areas: Article 246 mentions two categories of tribal areas:
Federally Administered Tribal Areas and
Provincially Administered Tribal Areas.
FATA and PATA
It is needed to note that Article 1 expressly includes in Pakistan the FATA but it
does not say so in respect of PATA. It may be inferred that at the time of
commencement of Constitution PATA were not included in Pakistan, otherwise,
like FATA, they would have been expressly included in the territories of Pakistan.
However, by virtue of article 247 the executive authority of the Federation is
extended to FATA and that of province of to PATA.
No Act of Parliament and Provincial Assembly shall apply to, respectively, FATA
and PATA. However, the President and on his direction the Governor may allow
the applicability of Federal and Provincial laws to, respectively, FATA and PATA.
(Art 247 (3))
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Jurisdiction of HCs and Supreme Court of Pakistan does not extend to tribal areas
unless parliament by law otherwise provides (247) sub-clause (7 FATA and PATA
part of Pakistan
The Supreme Court had in the case of Superintendent of Land Customs, Torkhem
v Zewar Khan (PLD 1969 SC 485) ruled that tribal areas were legally part of
the territory of Pakistan as several laws including Customs Act, were applicable to
it. The Court observed that both under the international law as well as the
municipal law, the tribal territories are part and parcel of Pakistan, as are duly
recognized by foreign states.
Petitioner, a resident of FATA was arrested u/the provision of law and not
administratively, whereunder special forums were available for adjudicating upon
the judicial matters. Petitioner had remedy to go to the said forums but had no
locus standi to come to the High Court. (2005 MLD 1685)
 Respondent filed complaint before Political Agent of NW Agency under sec.

420/406/403 of PPC read with Sec. 11 of FCR.
 Assistant Political Agent issued notices to petitioners in the said complaint at

their Lahore addresses.
 High Court had no jurisdiction to quash the impugned notice issued by

Political Agent of NW agency. Jurisdiction of High Courts and Supreme
Court was exclusively barred by virtue of Art. 247 (7) of the Constitution of
Pak in relation to Tribal areas. Petition dismissed as being not maintainable.
 However, Petitioners were given protective bail for one month to enable
them to move the competent court. (2000 YLR 590)
Dr. Faqir Hussain says that it is unclear as to why the people of FATA, though
citizens of Pakistan are denied the benefits of law including enjoyment of
fundamental rights/freedoms, guaranteed by the Constitution. It is therefore
desirable that the jurisdiction of High Court and Supreme Court is extended to the
region.
Discretion of the parliament to admit…..states to Pakistan
It needs to be noted that there is nothing in the constitution which would entitle a
state, after its formation or admission into federation, to claim complete equality of
status with a state existing at the commencement of the constitution. Because
article 1(3) gives complete discretion to the parliament to admit or establish new
states on such terms and condition “as it thinks fit.”
Art 2: Islam to be State Religion: Article 2 makes Islam the state religion of
Pakistan. Pakistan is an institution, not a human being. It cannot have a religion in
usual sense. What does article 2 mean? Apparently it means that in its outer
manifestation the state and its government should carry an Islamic symbol. The
Head of the State, Prime Minister and perhaps the ambassadors accredited to
foreign states must be Muslims. It should not be interpreted so as to exclude non-
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Muslims from Parliament, Provincial Assemblies, public services and armed
services, etc.
Does Art 2 by its own force make Islamic Law to be the law of the land? Religion
and Din (PLD 1976 Lah 930)
The English word “religion” as used in Article 2 has not been defined in the
Constitution. Its meaning given in various English dictionaries does not, at all,
represent the true significance of the word ”Din” as used in the Qur’an. It is not
possible to doubt the proposition that the constitution-makers while enacting
Article 2 must have been inspired and motivated by the injunctions in the Qur’an
on the subject of Islam as Din. While religion as a Western concept means mere
system of faith and worship—practice of sacred rites—the word ” ” in Arabic
language of the Qur’an is not confined and used so restrictively. It also represents
all that goes with “statecraft” and “way of life.” The study of the Holy Qur’an
show that it ( ) has been used therein, in at least, five different major facets of
human life. They are:
Religion and Din PLD 1976 Lah 930
(i) sovereignty, control, authority over others and coorresponding total

submission;
(ii) law of the land and rule of law of God;
(iii) code and way of life and thought;
(iv) judgment and consequential punishment;

(v) religion in restricted sense—submission in faith and prayer.
(See, amongst others, Verse 76 of Surah 12: V. 2 of Surah 24; V. 78 of Surah 38;
Vs. 2 & 3 of Surah 39; V. 65 of Surah 40; V. 13 & 21 of Surah 42; V. 26 of Surah
70; V. 46 of Surah 74; and V. 9 of Surah 82 of the Holy Qur’an.)
When Islam is ordained as way of life of the State of Pakistan, it does not carry
merely spiritual meaning of submission in faith and prayer, but also has
ramifications in the other aspects of life like political and social including juridical.
Thus, word “religion” ( ) has been used in Article 2 for the State with the foregoing
meanings and connotation specified at Nos. (i), (ii) and (iii) above. Looked at from
this angle, it is impossible to agree with the view that this Article visualizes the
making of a mere theocratic system…… Article 2, therefore, deals with the
tangible aspects of Statecraft including realm of political science, jurisprudence,
laws and affairs of State properly so-called.
However, the court further observed that it appears that Part I of the Constitution
“Introductory”, in which Article 2 falls, can be divided into directly enforceable
and not so directly enforceable parts, for example, Articles 4 and 6 are, on the face,
concrete enforceable provisions as of any other practical territorial law, while
Articles 1 and 5 can be applied only indirectly as aids to the resolution of other
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legal controversies, Article 2 and 3 provide two fundamental basis of the polity in
Pakistan—one deals with the ‘statecraft’ and ‘way of life’ and the other, with one
of its (life’s) major facets, namely, economic and social justice.
There is another additional reason for coming to this conclusion that Article 2 as
such is not so enforceable in Courts. Some mechanism has been provided in
various other parts of the Constitution wherein the content and meaning of this
Article has been sought to be applied in concrete forms. One of those Parts of the
Constitution is Chapter 2 which contains the principles of policy. It is not a mere
coincidence that Article 31, which has been discussed above, deals with the
particular steps which “shall be taken” to enable the Muslims of Pakistan to
conduct themselves in, what the heading of Article 31 describes, “Islamic way of
life”. As discussed above, it is only through such like provisions of the
Constitution that Article 2 can be given as operative shape.
Art 2 by its own force does not make Islamic Law to be the law of the land
Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624 the SC held that
article 2 by its own force, does not even profess to make Islamic Law to be law of
the land. Existing laws shall be brought into conformity with injunctions of Islam
only in the manner prescribed in part IX of the Constitution.
Article 2 provides that Islam shall be the State religion. Article 227 stipulates that
all the existing laws shall be brought into conformity with injunctions of Islam as
laid down in the Holy Quran and Sunnah and that no law shall be enacted which is
repugnant to such injunctions.
Explanation to article 227 (1) is very important as it lays down that in the
application of this clause to the personal laws of any Muslim sect, the expression
‘Quran and Sunnah’ shall mean the Quran and Sunnah as interpreted by that sect.
Art 2 by its own force does not make Islamic Law to be the law of the land
Sub-clause 2 of article 227 effect shall be given to the provisions of sub-clause (1)
only in the manner provided in this part i.e. part IX.
Sub-clause 3 says nothing in this part shall affect the personal law of non-Muslims
or their status as citizens.
In the view of declaration of Art 2, Pakistani judiciary is constrained to apply

principles of Islamic Law on principles of justice, equity and good governance in
cases not otherwise provided for.
Art. 3 Elimination of Exploitation
Article 2 and 3 provide two fundamental basis of the polity in Pakistan—one deals
with the ‘statecraft’ and ‘way of life’ and the other, with one of its (life’s) major
facets, namely, economic and social justice. Such fundamental bases are to be kept
in view while interpreting other provisions of the Constitution and laws made by its
authority.
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(PLD 1976 Lah 930)
Exercise of discretion by government functionaries
Govt functionaries have to act fairly, justly, equitably, and reasonably. Petitioner
was given the permit to import rikshaws, petitioner deposited the license fee.
Before petitioner could import rikshaws, the policy changed and petitioner’ license
cancelled. Petitioner denied to obtain the refund of the import license fee. Court
held, failure to refund the import license fee is unconstitutional, unfair, unjust and
exploitative.
Non payment of salary
In Mst Zaib-Un-Nisa v/sThe Government of Punjab, Department of Education

(1995 CLC 1281) Court held that the respondents, by not paying salary to the
petitioner for the past more than two years have acted contrary to these Principles
of Policy. They exploited the situation and denied to the petitioner her valuable
right to remuneration according to her grade which also is in violation of Article 3
of the Constitution which casts duty on the State to eliminate all forms of
exploitation and gradual fulfillment of the fundamental principle, from each
according to his ability, to each according to his work.
Art 4. Right to dealt with in accordance with Law
It envisages two categories of person:
Citizen of Pakistan: wherever he may be (whether in Pakistan or abroad)
Every person: for the time being in Pakistan (only in Pakistan, may not be while
he is outside of Pakistan)
Art 4 Explained
Any public functionary or person taking any action affecting the life, liberty, body,
property or reputation of a person, must rely on some law to justify his action.
 Thus a policeman or jailer must be equipped with legal authority to

arrest/imprison a person or,
 a person who interferes with another person’s right to carry on his trade,
profession or business with a legal power to regulate or stop such activity.
 Similarly a person requiring another person to do something e.g. a jailer

requiring a prisoner to work must have the legal authority to compel the
prisoner to do the particular act.
Constitution in unambiguous terms has provided protection to life, liberty, body,

reputation and property of every citizen……. Every citizen has the right to do
whatever he likes provided it is not prohibited by law. Where an interview of the
petitioner was voluntary, telecasting the same would not violate the guarantees
granted to citizens in terms of article 4. Petition for restraining the television
corporation from telecasting his voluntary interview being devoid of merits was
dismissed. (1988 CLC 545)
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What does term “law” as used in art. 4 mean?
Does it include “Islamic law”? What term “law” includes
The word “law” is not defined by the article. However, it includes:
Statute,
Customs to the extent they are recognized by statute
International law as adopted by conventions and incorporated in the domestic

system
Judge made law as settled by superior judiciary in the exercise of its judicial and
quasi-judicial powers (1983 PCr. LJ 2182)
Term “law” does not include Islamic Law
Word “law” used in article 4, 8 and 260(3) is confined to positive law and such
Islamic laws as made applicable by positive law. Argument that “law” includes
Islamic Law can be rebutted by reading article 4 jointly with articles 227-30 of the
Constitution. (PLD 1975 SC 66)
The term “law” does not include the “the law of God” or “law of nature” or
“principles of natural justice” unless such laws or principles find a place in legal
system or have been included in that system by judicial interpretations. Rahmatllah
Khan v/s State (PLD 1965 Pesh 162)
Discretion?
A public official’s power or right to act in certain circumstances according to

personal judgment and conscience (not according to hard-and-fast rules).
Exercise of discretion
Discretion is to be exercised in just, fair and proper manner. Concept of absolute

discretion does not exist in law as it is incompatible with the guaranties provided in
Art 4. (2003 PLC (C.S) 1161 (b)
Public functionaries cannot make any individual distinction for any extraneous
reasons. Discretion vested in public functionaries must be free from arbitrariness
and caprice. (1991 MLD 1688)
Act of State
Article 4 is intended to negative any claim by the government that any category of
its acts in relation to citizens and other persons in Pakistan are not subject to law at
all. Claims have been made in the past that a particular act which was challenged
was an act of State, therefore, not being liable to be challenged. View taken by
courts, if an act was in fact an act of State, it would not be subject to law but there
could be no act of State with respect to its citizens. With respect to its citizens the
government has only such powers as are granted to it by its law. The act of State in
relation to other governments, or sometimes in relation to the citizens of other
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State, or in relation to the alien enemy are not subject to law. (PLD 1966 SC 357),
(PLD 1966 SC 1)
Art. 5 Loyalty to State and obedience to Constitution and Law
Two parts of the article
Loyalty to the State : Citizen of Pakistan
Obedience to Constitution and Law: Every citizen wherever he may be and every
other person while in Pakistan
The article gives a Constitutional sanction to the punishment of acts of disloyalty

to the State which are punishable by ordinary law.
Art. 5 Explained
First duty of citizens is loyalty to the State and if a person commits any offence,
then he is not entitled to the protection of fundamental rights and is liable to be
prosecuted and dealt with in accordance with the law enforced for the purpose.
(PLD 2005 Lah 721 a)
It is the duty of each and every citizen to act in accordance with the law.
If a citizen which includes a person performing functions in connection with the

affairs of the State does not obey the Constitutional command, then he is not
performing his obligations imposed by the Constitution. High Court can oblige him
to perform his duty under the Constitution. (1997 CLC 1379)
Detenu was already in jail in four criminal cases when District Magistrate granting
request of S.P. ordered his detention under Section 3, West Pakistan Maintenance
of Public Order Ordinance, 1960 for period of three months — Detenu being in
jail, by no stretch of imagination could venture upon or offer or contribute towards
threat to public safety or maintenance of public order, the sine qua non for pressing
into service rigors of the preventive detention conceived by Section 3, West
Pakistan Maintenance of Public Order Ordinance 1960 — District Magistrate had,
thus, acted blind-folded in purely mechanical fashion without application of even
semblance of independent/judicious mind manifesting height of irresponsibility in
the discharge of official functions and breach of Constitutional duty contemplated
by Article 5(2) of the Constitution vis-a-vis the Constitutional guarantees of the
citizens.
Public servant are not subservient to the political executive.
In their capacity as advisors in decision making or as administrators and enforcers

of law, public servant are not subservient to the political executive. It is the
obligation of public servant to remain compliant with the Constitution and law.
Hence they are not obliged to be servile or unthinkingly submissive to the political
executive. One of their prime duties is to give advise in the best public interest and
to administer the law impartially being in-charge of the machinery of the State.
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We reaffirm that while civil servants do have a duty to follow the policy guidelines
and directions of the political executive yet, because of Article 5 of the
Constitution, just like other citizens, their foremost duty is “obedience to the
Constitution and the law”, not unthinking obedience to all directives (right or
wrong) issuing from the political executive. PLD 2013 SC 195
Art 6. High Treason
As per Black’s Law Dictionary: High treason means a breach of allegiance to one’s
government, usually committed through levying war against such government or
by giving aid or comfort to the enemy.
Under Article III,
Section 3, of the
US Constitution, any person who levies war against the United States or adheres to
its enemies by giving them aid and comfort
has committed treason within the meaning of the Constitution.
Abrogation meaning
Black’s Law Dictionary: Abrogate means to annul, cancel, revoke, repeal or

destroy
Subversion: overthrowing, destroying
The real distinction between the abrogation and subversion is difficult to discover;
perhaps there is none, because the overthrowing of the constitution is the same
thing as its annulment.
As amended by 18th amendment
18th amendment added suspension and holding in abeyance to art. 6
Suspend: to temporarily delay, interrupt or terminate
Hold in abeyance: adjourn, delay, defer postpone or retard
What 18th amendment missed
It should have mentioned abrogation……. The Constitution “or any part of it”
Original Jurisdiction of Supreme Court of

Pakistan
June 6, 2021
Original Jurisdiction of Supreme Court
184. (1) The Supreme Court shall, to the exclusion of every other court, have
original jurisdiction in any dispute between any two or more Governments.
Explanation.—In this clause, “Governments” means the Federal Government and

the Provincial Governments.
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(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme
Court shall pronounce declaratory judgements only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have
the power to make an order of the nature mentioned in the said Article.
Language of art 184 (3) is open ended
The article does not say as to who shall have the right to move the Supreme
Court (SC) nor does it say by what proceedings the SC may be so moved
or whether it is confined to the enforcement of fundamental rights of an individual
which are violated or extends to the enforcement of the rights of a group or class of
persons whose rights are violate.
Maintainability of the petition
Constitutional petition under art 184(3) can be maintained subject to

establishing by the petitioner that question of public importance with reference
to the enforcement of fundamental rights has been made…. Maintainability of the
petition under the art is to be examined by the court not on the basis of who filed
the same but if the controversy involves a question of public importance with
reference to the enforcement of fundamental right, the petition will be
sustainable. (PLD 2006 SC 394 (c))
Public Interest litigation
Public interest litigation is not enforcing right of one individual against another
as happens in case of ordinary litigation, rather such litigation is intended to
promote and vindicate interest involving violation of Constitutional or legal rights
of large number of people, who are poorer, ignorant or in socially or economically
disadvantageous position. (PLD 2002 Kar 359 (b))
Violation of Constitutional and fundamental rights in circumstances which raise

serious questions regarding the effectiveness of and availability of safeguards (for
the fundamental rights) must be regarded as matter of great public importance.
(PLD 2001 SC 549 (e))
Word “dispute” in art 184
Word dispute in art 184 is wide enough to include all the disputes, jurisdictional,
administrative and fiscal.
It was contended that Peoples Work Program concentrating mainly

on Education, Health and Sanitation, Water Supply and Rural Roads did not fall
within the jurisdiction of the federal government. Because, it was further
contended that, under the Constitution Executive authority of the Federal
Government extends only to such matters as enumerated in the Federal
Legislative List and or the Concurrent Legislative List in respect whereof the
Parliament was empowered to make laws (art 97). It was further contended that
none of the aforementioned components of the program was included in either of
the two lists contained in Fourth Schedule of the Constitution, therefore, theses
components fall within the ambit of Provincial Government and the launching of
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the program by the Federal Government was ultra vires of the Constitution. (art
142 (c))
It was held that grievance agitated by the petitioner essentially raised a dispute
of the nature envisaged in art 184 of the Constitution i.e. dispute between the
Federal Government on one hand and the Provincial Governments on the other.
Such a dispute is determinable by the Supreme Court of Pakistan which has
exclusive jurisdiction under art 184. (1989 CLC 1387)
The Supreme Court has exclusive jurisdiction in inter governmental

disputes The provision is based on the principle that all disputes, whether of law
or fact, must be determined by the SC if the parties to the disputes happen to be
Federal Government and, or, Provincial Governments, it is in the highest degree
undesirable that the Federation and Provinces should be fighting out their battles
in the subordinate courts like common litigants. (PLD 1956 FC 72)
Dispute as to ownership of land between Pakistan Railways and Karachi

Development Authority
Dispute between as to land ownership between Pakistan Railways and KDA could
not be treated a dispute between the Federal Government and Provincial
Government because the KDA being a local authority and separate from Provincial
Government was not a Department of the Government. Provisions of Art 184 could
not be attracted. (PLD 1986 Kar 130)
Declaratory Judgments
As contained in clause (2) of art 184, in the exercise of this jurisdiction, the
Court can pronounce only declaratory judgments and not an order or decree
that is executable under art 187. This shows that such disputes are to be
brought before the Court for its opinion and determination of rights and
liabilities. However, during the hearing executable orders such as order for
production of documents, attendances of witnesses, etc may be passed.
Analysis of art 184(3)
SC can exercise its powers to issue the writ only when element of ‘public
importance’ is involved while art 199(1)(c) has a wider scope as there is no such
limitation.
Trappings of art 199 (1)(a) and (c) need not be read into art 184(3). Exercise of
power of SC u/art 184(3) is not dependent only at the instance of the ‘aggrieved
party’ in the context of adversary proceeding. Traditional rule of locus standi can
be dispensed with and procedure available in public interest litigation can be
made use of, if it is brought to the Court by the person acting bona fide.Provisions
of art 184(3) have provided abundant scope for the enforcement of the
Fundamental Rights of individual or group or class of persons in the event of
their violation and it would be for the SC to lay down contours generally in order
to regulate the proceedings of group or class actions from case to case.
The opening words ‘without prejudice’ in art 184(3) mean only not affecting,
saving or excepting and the expression ‘without prejudice to the provisions in
art 199’ means no more than to save the provisions of art 199 without,
superimposing itself on the power of the Supreme Court to decide a question of
public importance relating to enforcement of Fundamental Rights. The aim of art
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184(3) is to leave the power of High Court intact. It is for the party which is
affected to choose which of the two forums it wishes to invoke, and if it be the SC
then the power exercisable is subject to the limitation of art 184(3) i.e. the element
of public importance must be involved in the enforcement of Fundamental Rights.
The impression that the opening of sub-clause 1(a) and (c) of art 199 be read
into art 184 (3) appears to be without substance as there are no words in art
184(3) to incorporate them except the words “make an order of the nature in the
said article”, which are specifically referable to the nature of order in sub-clause
(c) of clause 1 of art 199 giving such directions as may be appropriate for the
enforcement of any of the Fundamental Rights. Therefore, it will not control or
regulate, in any way, the exercise of power so as to make it exercisable only at the
instance of the ‘aggrieved party’ in the context of adversary proceedings.
Violation of non-fundamental rights
Where grant of relief prayed for did not require enforcement of any
of Fundamental Right mentioned in chapter 1 part of II, the petition was not
maintainable under article 184(3) (PLD 1994 SC 621, NLR 1994 SCJ
612). Therefore, violation of art 4 and 5 which do not fall in chapter 1 of part II
containing Fundamental Rights would not attract the exercise of jurisdiction by
SC u/art 184(3). (1995 SCMR 202)
Relief may not be granted
When the condition, that a fundamental right is being enforced, is justified then
the only limit on the power of the SC to pass order is that the order should be
‘appropriate’. (1993 SCMR 1781)
So the Court may decline relief if its grant, instead of advancing the cause of
justice, would perpetuate injustice or where the Court feels that it would not be
just and proper. (PLD 1993 SC 473 –PLJ 1993 SC 438)
Ismail Qureshi and Others V. M Owais Qasim Secretary General of Islamic-e-

Jamit Talaba 1993 SCMR 1781)
Court held that those who “indulge in politics” in the educational institutions
being a very small minority violate several fundamental rights of a vast majority
of the students, their parents and guardians, besides of those who are otherwise
directly or indirectly linked or connected therewith. The court even directed that
at the time of admission to an educational institution, the student and his
parents/guardian shall give an undertaking that the student shall not “indulge in
politics”; failing which, he shall not be allowed admission. The court noticed that
the dignity of the teachers, the institution and the majority of students
community has been severely adversely affected, besides infringement of several
other fundamental rights including those relating to movement, expression,
speech, freedom of assembly and above all the dignity of the teachers and a large
majority of the students gets violated in one or the other set of circumstances.
Enforcement of Fundamental Rights through Order or declaratory

judgments?
If a question of public importance relating to the enforcement of Fundamental

Rights is involved the SC may make an order of nature mentioned in art 199. The
restriction of passing declaratory judgments is confined to clause (1) of art 184.
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Original Jurisdiction of Supreme Court of Pakistan:
184. (1) The Supreme Court shall, to the exclusion of every other court, have
original jurisdiction in any dispute between any two or more Governments.
Explanation.—In this clause, “Governments” means the Federal Government and

the Provincial Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme
Court shall pronounce declaratory judgements only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it
considers that a question of public importance with reference to the enforcement of
any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have
the power to make an order of the nature mentioned in the said Article.
The article does not say as to who shall have the right to move the Supreme
Court (SC) nor does it say by what proceedings the SC may be so moved
or whether it is confined to the enforcement of fundamental rights of an individual
which are violated or extends to the enforcement of the rights of a group or class
of persons whose rights are violate.
Constitutional petition under art 184(3) can be maintained subject to establishing

by the petitioner that question of public importance with reference to the
enforcement of fundamental rights has been made…. Maintainability of the
petition under the art is to be examined by the court not on the basis of who filed
the same but if the controversy involves a question of public importance with
reference to the enforcement of fundamental right, the petition will be
sustainable. (PLD 2006 SC 394 (c))
Public interest litigation is not enforcing right of one individual against another as
happens in case of ordinary litigation, rather such litigation is intended to promote
and vindicate interest involving violation of Constitutional or legal rights of large
number of people, who are poorer, ignorant or in socially or economically
disadvantageous position. (PLD 2002 Kar 359 (b))
Violation of Constitutional and fundamental rights in circumstances which raise

serious questions regarding the effectiveness of and availability of safeguards (for
the fundamental rights) must be regarded as matter of great public importance.
(PLD 2001 SC 549 (e))
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Word dispute in art 184 is wide enough to include all the disputes, jurisdictional,
administrative and fiscal.
It was contended that Peoples Work Program concentrating mainly on Education,

Health and Sanitation, Water Supply and Rural Roads did not fall within the
jurisdiction of the federal government. Because, it was further contended that,
under the Constitution Executive authority of the Federal Government extends
only to such matters as enumerated in the Federal Legislative List and or the
Concurrent Legislative List in respect whereof the Parliament was empowered to
make laws (art 97). It was further contended that none of the aforementioned
components of the program was included in either of the two lists contained in
Fourth Schedule of the Constitution, therefore, theses components fall within the
ambit of Provincial Government and the launching of the program by the Federal
Government was ultra vires of the Constitution. (art 142 (c))
It was held that grievance agitated by the petitioner essentially raised a dispute of
the nature envisaged in art 184 of the Constitution i.e. dispute between the Federal
Government on one hand and the Provincial Governments on the other. Such a
dispute is determinable by the Supreme Court of Pakistan which has exclusive
jurisdiction under art 184. (1989 CLC 1387)
The Supreme Court has exclusive jurisdiction in inter governmental disputes The
provision is based on the principle that all disputes, whether of law or fact, must be
determined by the SC if the parties to the disputes happen to be Federal
Government and, or, Provincial Governments, it is in the highest degree
undesirable that the Federation and Provinces should be fighting out their battles
in the subordinate courts like common litigants. (PLD 1956 FC 72)
Dispute as to ownership of land between Pakistan Railways and Karachi

Development Authority
Dispute between as to land ownership between Pakistan Railways and KDA could
not be treated a dispute between the Federal Government and Provincial
Government because the KDA being a local authority and separate from
Provincial Government was not a Department of the Government. Provisions of
Art 184 could not be attracted. (PLD 1986 Kar 130)
As contained in clause (2) of art 184, in the exercise of this jurisdiction, the Court
can pronounce only declaratory judgments and not an order or decree that is
executable under art 187. This shows that such disputes are to be brought before
the Court for its opinion and determination of rights and liabilities. However,
during the hearing executable orders such as order for production of documents,
attendances of witnesses, etc may be passed.
14
SC can exercise its powers to issue the writ only when element of ‘public
importance’ is involved while art 199(1)(c) has a wider scope as there is no such
limitation.
Trappings of art 199 (1)(a) and (c) need not be read into art 184(3). Exercise of
power of SC u/art 184(3) is not dependent only at the instance of the ‘aggrieved
party’ in the context of adversary proceeding. Traditional rule of locus standi can
be dispensed with and procedure available in public interest litigation can be made
use of, if it is brought to the Court by the person acting bona fide. Provisions of art
184(3) have provided abundant scope for the enforcement of the Fundamental
Rights of individual or group or class of persons in the event of their violation and
it would be for the SC to lay down contours generally in order to regulate the
proceedings of group or class actions from case to case.
The opening words ‘without prejudice’ in art 184(3) mean only not affecting,
saving or excepting and the expression ‘without prejudice to the provisions in art
199’ means no more than to save the provisions of art 199 without, superimposing
itself on the power of the Supreme Court to decide a question of public importance
relating to enforcement of Fundamental Rights. The aim of art 184(3) is to leave
the power of High Court intact. It is for the party which is affected to choose which
of the two forums it wishes to invoke, and if it be the SC then the power exercisable
is subject to the limitation of art 184(3) i.e. the element of public importance must
be involved in the enforcement of Fundamental Rights.
The impression that the opening of sub-clause 1(a) and (c) of art 199 be read into
art 184 (3) appears to be without substance as there are no words in art 184(3) to
incorporate them except the words “make an order of the nature in the said
article”, which are specifically referable to the nature of order in sub-clause (c) of
clause 1 of art 199 giving such directions as may be appropriate for the
enforcement of any of the Fundamental Rights. Therefore, it will not control or
regulate, in any way, the exercise of power so as to make it exercisable only at the
instance of the ‘aggrieved party’ in the context of adversary proceedings.
Where grant of relief prayed for did not require enforcement of any
of Fundamental Right mentioned in chapter 1 part of II, the petition was not
maintainable under article 184(3) (PLD 1994 SC 621, NLR 1994 SCJ
612). Therefore, violation of art 4 and 5 which do not fall in chapter 1 of part II
containing Fundamental Rights would not attract the exercise of jurisdiction by SC
u/art 184(3). (1995 SCMR 202)
When the condition, that a fundamental right is being enforced, is justified then the
only limit on the power of the SC to pass order is that the order should be
‘appropriate’. (1993 SCMR 1781)
15
So the Court may decline relief if its grant, instead of advancing the cause of
justice, would perpetuate injustice or where the Court feels that it would not be just
and proper. (PLD 1993 SC 473 –PLJ 1993 SC 438)
Ismail Qureshi and Others V. M Owais Qasim Secretary General of Islamic-e-

Jamit Talaba 1993 SCMR 1781)
Court held that those who “indulge in politics” in the educational institutions being
a very small minority violate several fundamental rights of a vast majority of the
students, their parents and guardians, besides of those who are otherwise directly
or indirectly linked or connected therewith. The court even directed that at the time
of admission to an educational institution, the student and his parents/guardian
shall give an undertaking that the student shall not “indulge in politics”; failing
which, he shall not be allowed admission. The court noticed that the dignity of the
teachers, the institution and the majority of students community has been severely
adversely affected, besides infringement of several other fundamental rights
including those relating to movement, expression, speech, freedom of assembly
and above all the dignity of the teachers and a large majority of the students
gets violated in one or the other set of circumstances.
Enforcement of Fundamental Rights through Order or declaratory judgments?
If a question of public importance relating to the enforcement of Fundamental

Rights is involved the SC may make an order of nature mentioned in art 199. The
restriction of passing declaratory judgments is confined to clause (1) of art 184.
Appellate Jurisdiction of Supreme Court:
Art. 185. (1) Subject to this Article, the Supreme Court shall have jurisdiction to
hear and determine appeals from judgments, decrees, final orders or sentences of
a High Court.
(2) An appeal shall lie to the Supreme Court from any judgmens, decree, final
order or sentence of a High Court—
(a) if the High Court has on appeal reversed an order of acquittal of an accused
person and sentenced him to death or to transportation for life or imprisonment for
life ; or, on revision, has enhanced a sentence to a sentence as aforesaid ; or
(b) if the High Court has withdrawn for trial before itself any case from any court
subordinate to it and has in such trial convicted the accused person and sentenced
him as aforesaid ; or
(c) if the High Court has imposed any punishment on any person for contempt of
the High Court; or
(d) if the amount or value of the subject-matter of the dispute in the court of first
instance was, and also in dispute in appeal is, not less than fifty thousand rupees
16
or such other sum as may be specified in that behalf by Act of 1[Majlis-e-Shoora
(Parliament)] and the judgment, decree or final order appealed from has varied or
set aside the judgment, decree or final order of the court immediately below ; or
(e) if the judgment, decree or final order involves directly or indirectly some claim
or question respecting property of the like amount or value and the judgmen t,
decree or final order appealed from has varied or set aside the judgment, decree
or final order of the court immediately below; or
(f) if the High Court certifies that the case involves a sub-stantial question of law
as to the interpretation of the Constitution.
(3) An appeal to the Supreme Court from a judgment decree, order or sentence of
a High Court in a case to which clause (2) does not apply shall lie only if the
Supreme Court grants leave to appeal.
Clause 2—sub-clauses (a), (b) and (c) of article 185 provides for appeal to
Supreme Court in criminal cases while sub-clauses (d), (e) and (f) Clause 2
provides for appeal in civil cases. Clause 3 provides for appeal by leave.
Appellate Jurisdiction of Supreme Court of Pakistan
(i) Appeal in Criminal Cases
Appeal to the Supreme Court lies against the Judgment, final order or sentence of
High Court in following Criminal Cases:
17
Sub-clause (a). If the High Court reversed the final order of acquittal and
sentenced the accused to death or transportation for life or imprisonment for life or
in the exercise of revisional jurisdiction has sentenced him as aforesaid.
Sub-clause (b). If the High Court withdrawing a case from subordinate court has
tried the accused and sentenced him as said in clause (a).
Sub-clause (c). If High Court has imposed any punishment (imprisonment or fine)
on any person for contempt of the High Court.
Art 185 does not enable a person to file an appeal as of right from the judgment of
the HC confirming a death sentence by a Session Judge. It is competent only where
the HC has set aside acquittal and passed sentence of death or imprisonment for
life.(1997 SCMR 1)
But where the sentence of death is submitted to High Court for confirmation and
the High Court exercises no power other than provided by section 376 of Cr.P.C
and does not confirm a sentence, but upon the same conviction or an altered
conviction passes any other sentence warranted by law, and that sentence is
transportation for life, an appeal may lie to Supreme Court as of right. (1971
SCMR 403, PLD 1963 SC 226)
Sentence of Transportation for life is omitted by Law Reforms Ordinance, XII of

1972, S. 2.
Diminished liability on account of grave and sudden provocation
(Abdul Haque v. The State and another1996 SCMR 1566.)
The Pakistan Penal Code, 1860 (PPC), in its original form, contained provisions
whereby causing the death of a person due to grave and sudden provocation was
defined as culpable homicide not amounting to murder. The relevant provision,
contained in Exception 1 to Section 300 PPC, stated: Culpable homicide is not
murder if the offender, while deprived of the power of self-control by grave and
sudden provocation, causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
Accused killed the deceased in the court room when the latter threatened to
sexually assault all the women of the accused’s tribe on his release. Accused
convicted and sentenced to death. He preferred appeal against the death sentence.
Majority of the High Court judges were of the view that section 300 of
PPC (amended) does not have any exception therefore, the plea of diminished
liability on account of grave and sudden provocation was not available to the
accused.
A three member bench of the Supreme Court felt that the plea of diminished
responsibility under grave and sudden provocation had been well-recognized in the
sub-continent for more than a hundred years and there was good reason that a
person who committed culpable homicide out of compulsion, ethical or otherwise,
not brought about by himself, could not be placed on the same footing as a cold-
18
blooded murderer or hired assassin. Serious question for consideration arose that
whether the Criminal Law (Second Amendment) Ordinance, 1990 was intended to
do away with the preferential treatment which has always been accorded to a
person who took another’s life under circumstance where he had lost self-control.
Such question being of great fundamental importance not only for the reason that
it would effect a large number of pending cases, but also because it had bearing on
the attitude and reflexes of the people under the most testing circumstances when
their natural reactions compel them to act in a certain manner. Question needed to
be considered by a larger Bench and was directed to be placed before Chief Justice
for necessary orders.Five members bench of SC held that a provocation plea is not
available if murder is liable to qisas. However, it is available as a mitigating
circumstance for a murder considered under section 302 (b) of PPC (Tazir).
Appeal against acquittal
In appeal against acquittal Supreme Court would not on principle ordinarily

interfere and instead would give weight and considerations to the findings of
acquittal. This approach is based on the fact that acquittal carries with it two well
established presumptions; one initial, that, till found guilty the accused is innocent;
and two that after the trial a court below the assumption of innocence is confirmed.
However, the assumption will not carry the second assumption and will also lose
the first one if the points having conclusive effect on the end result of the court
below; (a) disregarded the material evidence; (b) misread such evidence; (c)
received such evidence illegally. If the conclusion reached by the court below was
such that no reasonable person would have conceivably reach the same and was
impossible then the SC would interfere on overwhelming proof resulting in
conclusive and irresistible conclusion and that too with a view only to avoid the
grave miscarriage of justice and for no other purpose.
(PLD 1985 SC 11)
(ii) Appeal in Civil Cases:
Sub-clause (d). If the amount or value of the subject matter both in the court of first
instance and in the appeal to SC is not less Rs. 50,000 or such other sum as may be
specified by an Act of Parliament and the judgment, final order or decree appealed
from has varied, or set aside the judgment, order or the decree of the court
immediately below it.
Sub-clause (e). If the judgment, final order or decree involves, directly or

indirectly, some claim or question respecting the property of the like amount (Rs.
50,000) and the judgment, final order or decree appealed from has varied or set
aside the judgment, final order or decree of the court immediately below it.
Sub-clause (f). If the HC certifies that the case involves a substantial question of
law as to the interpretation of constitution. (Does not specifically require that the
value of the property must be Rs. 50,000 or more).
(iii) Appeal by leave: Clause (3)
19
Clause 3 of art 185 says that an appeal to Supreme Court from the judgment,
decree, order or sentence of High Court in a case to which clause (2) does not
apply shall lie only if the SC grants leave to appeal.
Clause (3) of the Art 185 must be read with art clause (3) of 212 of the
Constitution which provides for appeal by special leave from Administrative
Courts and Tribunals if the Supreme Court is satisfied that the case involves a
substantial question of law of public importance.
Decision of the Cabinet whether deemed to be the decision of Government?
Suppression of Cooperative Society by Martial Law Administrator with the option

with to Govt revive the same at any time
Govt decided to revive the Society from 1st Aug, 1986 but no requisite steps were
taken to revive the society. High Court directed the govt to revive the Society
within specified period.
In petition for leave to appeal the main ground was that no notification or order
was issued under the signature of the Govt functionary on the basis of the decision
of the Cabinet.
Question for determination was that whether the decision of the Cabinet was
synonymous with the decision of Govt keeping view the provisions of art 129 and
139 of the Constitution.
Question raised involved the interpretation of the Constitution. Leave to appeal

was granted to examine, inter alia, whether the decision of the cabinet could be
treated as decision of the govt within the meaning of para 3 of Martial Law Order
NO. 856 whereby Model Town Cooperative Society was dissolved. (1997 SCMR
186)
Can a Civil Court strike down a law?
Leave to appeal was granted to consider whether in view of art 2-A, 204-B, 227
and 268 and section 3 and 4 of the Enforcement of Sharia Act, 1991, civil courts
have the power to examine, review, interpret and strike down, if necessary, any
provision of the Muslim Family Laws Ordinance, 1961, which was allegedly
contrary to the Injunctions of Islam as laid down by Holy Quran and Sunnah and
also to consider contrary contention that section 4 of MFLO was the result of
Ijtehad and interpretation of principles of Islam and therefore could not be termed
as un-Islamic. (PLD 1993 SC 595, 1993 SCMR 1718)
Discovery of New Evidence
Supreme Court, as a rule, does not undertake an enquiry as a court of first instance,
nor permit additional evidence to be placed in appeal where there was sufficient
opportunity for the appellant to place all the relevant material before the HC.
Where the evidence having material bearing on the merits of the case is
subsequently discovered there are three courses open to the party to the litigation
i.e. he may:
20
(i) apply for admission of the fresh material as additional evidence before the
judgment is pronounced;
(ii) apply for the review of the judgment after it is pronounced; and
(iii) appeal from that judgment.
The appellant resorting to third option must disclose as to why he could not have
applied for the review of the judgment on the ground of the discovery of new
evidence. In an appeal it is now
well settled that additional evidence should not be admitted in order merely to
enable one of the parties to litigation to fill in gaps in the evidence. (PLD 1969
SC 60)
Advisory Jurisdiction of Supreme Court of Pakistan and Review of Judgments

or Orders by it:
Article 186. (1) If, at any time, the President considers that it is desirable to obtain
the opinion of the Supreme Court on any question of law which he considers of
public importance, he may refer the question to the Supreme Court for
consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion
on the question to the President.
Analysis of Article 186
Whether question is of public importance is for the President to determine and a

reference to the SC is in his discretion. But once a question is referred, the Court is
under obligation to consider it and give a reply.
SC must not go beyond the reference: When a reference is seeking interpretation of

particulars provisions of a bill a party cannot say that doubts also arise about other
provisions of the bill. SC must not go beyond the reference to discuss other
provisions. (AIR 1968 SC 956)
The question must be precise and specific and the court may refuse to answer a
question which is too general. For example, the Governor General’s Reference to
Federal Court in 1955 was comprised of four questions. One among them was
“What are the powers and responsibilities of Governor General in respect of the
Government of the country before the new Constitutional Convention passes the
necessary legislation?” to which Federal Court replied that the question is too
general and need not be answered. (PLD 1955 FC 435)
Is opinion of Supreme Court of binding nature?
The opinion of the court is in nature of advice, not binding on the referring
authority, and is not judicial decision within the meaning of art 189 of the
Constitution. It does not prevent the court from giving a contrary decision in a
subsequent case coming to it in the normal course.
21
Opinion of the Supreme Court is just opinion with explanation on the question of
law and is not of binding nature and it is up to the President or the Federal
Government to act upon it or not. (Al-Jehad Trust Case, PLD 1997 SC 84 (b))
Opinion of the court on the reference by the President is not a judicial decision
between the parties but the Court undertakes an extensive judicial exercise during
which the arguments advanced by the Advocates appearing on behalf of the parties
summoned by the court are evaluated and appreciated and then opinion is formed
therefore, it had a binding effect.
(PLD 2005 SC 873 (b))
From the language of articles 189 and 190, it is concluded that opinion expressed
by SC in reference under art 186 is required to be esteemed utmost by all organs of
the State, therefore, it would be unfair to say that opinion expressed by SC on the
Presidential reference u/art 186 has no binding effect. (PSC 2006 (SC Pak) 9
(ccc))
President to act on the advice of Prime Minister
Advisory jurisdiction of the Supreme Court can be invoked by the President on the
advice of the Prime Minister…….Article 90 of our 1973 Constitution envisages
that the Executive Authority of the Federation shall vest in the President and sh all
be exercised by him either directly or through officers subordinate to him in
accordance with the Constitution. Article 99 provides that all Executive actions of
the Federal Government shall be expressed to be-taken in the name of the
President. In exercise of powers conferred by both these Articles, the Federal
Government has made Rules of Business of 1973; under Schedule V-B, Rule 15-
A(1) list is made of cases requiring orders of President on the advice of the Prime
Minister, Entry No. 54 specifically mentions Reference to the Supreme Court on
any question of law to be filed under Article 186, which is to be done on the advice
of the Prime Minister. (Al-Jehad Trust Case, PLD 1997 SC 84 (b))
Presence of the parties
It is also objected to by the learned counsel, that reference is not competent

because it is not inter se the parties. This Court in exercise of advisory jurisdiction
under Article 186 of the Constitution, has to express its opinion on constitutionality
of the Hisba Bill, therefore, presence of the parties is not called for. Advisory
jurisdiction of this Court is definitely different and distinct from the jurisdiction
under Articles 184 and 185 of the Constitution.
Scope of the art is wide
We feel no hesitation in holding that Constitution makers by using the

expression ‘any question of law’ in Article 186 of the Constitution had widened its
scope and had also covered disputes which are likely to arise. We may observe
that if such construction is not placed on the expression ‘any question of law’ there
is apprehension that the provision of advisory jurisdiction will become redundant.
Other provisions of the bill
22
It is equally important to note that once some of the Sections of a Bill have been
declared unconstitutional, it would not mean that leftover Sections of the Bill have
been declared in accordance with the Constitution. Their Constitutionality remains
open to be questioned, which can be upheld or struck down as or when challenged
before a competent forum.
Can President refer a question about a Provincial law?
Objection that President is only competent to refer under art 186 a question of law
which relates to Federal Law and not with respect to Provincial law is not
sustainable in the view of comprehensive and broad language employed in art 186.
(2006 PSC (SC Pak) 9 (kkk))
Review of Judgments or Orders by the Supreme Court
Art. 188. The Supreme Court shall have power, subject to the provisions of any Act
of 1[Majlis-e-Shoora (Parliament)] and of any rules made by the Supreme Court,
to review any judgment pronounced or any order made by
Under art 188 SC has the power to review any judgment pronounced or order made
by it. The power of review is to be exercised subject to an Act of Parliament and of
any rules made by the SC itself. Order XXVI of the SC Rules, 1980 provides for
review.
Order XXVI, Rule 1 of Supreme Court Rules, 1980 (amended in 2008) provides
that Subject to the law and the practice of the Court, the Court may review its
judgment or order in a Civil proceeding on grounds similar to those mentioned in
Order XLVII, rule I of the Code and in a criminal proceeding on the ground of an
error apparent on the face of the record.
Grounds for review
Order XLVII, rule I of the Civil Procedure Code provides grounds for the review
as under:
(i) discovery of new and important matter or evidence which, after the due
diligence, was not within the knowledge of the party seeking review or could not
be produced by it at the time when the decree was passed or order made, or
(ii) on account of some mistake or error apparent on the face of the record, or
(iii) for any other sufficient reason.
Who may apply for review: Application for review can only be made by a party
aggrieved as required in order XLVII of the Civil Procedure Code.
When Review may not be granted?
 If Court has taken a conscious and deliberate decision on a point of law or

fact while disposing of a petition or an appeal, review of such judgment or
order cannot be obtained on the ground that court took an erroneous view or
that another view on reconsideration is possible.
23
 Review also cannot be allowed on the ground of discovery of some new
material, if such material was available at the time of hearing of appeal or
petition but not produced.
 Ground not urged or raised at the hearing of the petition or appeal cannot be
allowed to be raised in review proceedings.
Only such errors in the judgment/order would justify review, which are self-
evident, found floating on the surface, are discoverable without much deliberation
and have a material bearing on the final result of the case.
(PLD 1963 SC 163, 1984 SCMR 568)
Promulgation of new law: New law having been promulgated long after the
announcement of impugned judgment of Supreme Court, change of law in
circumstances, could not justify review of the judgment passed on the basis of law
prevailing at the time of judgment. (PLD 1997 SC 865 (e))
Review is not granted on the mere ground that one party or another conceives itself
to be dissatisfied with the decision of the SC. (1969 SCMR 10,247)
Error on the face of the record Respondent succeeded in getting relief contrary to
law as well as provisions of SC Rules, 1980 and the consistent practice prevalent
for the hearing of the petition for leave to appeal, being a person fugitive from law,
he had not surrendered to the order of imprisonment passed by Accountability
Court, therefore he was not entitled to the relief which had been granted to him.
Order of the Court though mentioned that respondent had surrendered but record
was silent whether he was taken into custody or not. Judgment under review
suffered from error on the face of the record. Review granted.
(PLD 2005 SC 270 (c))
Accused not having found guilty of the contempt of court by the majority, the
portion of the SC Order that “the respondent is discharged in view of the
mitigating circumstances of the case though found guilty of contempt of court” did
not correctly reflect the opinion of the majority and in consequence needs to be
corrected. Court’s order was reviewed accordingly.
(1995 SCMR 159)
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Objectives Resolution, 1949
Its judicial history:
 As a Preamble to the Constitution
 As its substantive part
Guideline Speech of Q. Azam
24
In his guideline speech to the constituent assembly on 11th August, 1947 Quaid-e-
Azam M. Ali Jinnah said:
“You are free; you are free to go to your temples, you are free to go to your
mosques or to any other place of worship in this state of Pakistan. You may belong
to any religion, or caste or creed---that has nothing to do with the business of the
state….we are all citizens and equal citizens of one state…. and you will find that
in the course of time Hindus will cease to be Hindus and Muslims will cease to be
Muslims, not in the religious sense because that is the personal faith of each
individual, but in the political sense as citizens of the state”
OR passed after QA death
However, within six months of his death the Constituent Assembly of Pakistan
passed a resolution on the ‘Aims and Objects of the Constitution’ on 12th March
1949, popularly known as Objectives Resolutions.
Liaquat Ali Khan then PM said that “We, the people of Pakistan, have the courage
to believe firmly that all authority should be exercised in accordance with the
standards laid down in Islam so that it may not be misused.”
Limits prescribed by Him?
Chandra Chattopadyaya, a member of Pakistan National Congress in the

Constituent Assembly, said that so long as we had an idea that the constitution
would be based on principles of equality, democracy and social justice. We
thought that religion and constitution would not be mixed up as declared by
Muhammad Ali Jinnah on the floor of this house. Criticizing the objectives
resolution he asked that “what are the limits prescribed by Him within which the
state is to exercise the authority, who will interpret them? ….One day a Louis XIV
may come and say “I am the state, appointed by the Almighty.”
Recipient of Allah’s authority
The Objectives Resolution of 1949 had talked of Allah Almighty having delegated
His authority to the state. Professor Raj Kumar Chakravarty, a member of the
Pakistan National Congress party which was largely based in East Pakistan,
suggested that the delegate of God’s authority should be the people and not the
state. He argued that “First come people and then the state… a state is formed by
the people, guided by the people and controlled by the people.” The professor took
exception to the text of the Objectives Resolution as it meant that “once a state
comes into existence it becomes all-in-all; it is supreme, quite supreme over the
people…” He argued that the state had to be responsive to the public opinion and
to the public demand but the resolution implied that the state need not meet these
criteria.
Chakraverty’s view accommodated in 1973
Jawwad S. Khawaja, J. observed in 21st constitutional amendment case that though

Prof. Chakraverty was unsuccessful in 1949, our Constitution makers in 1972‐73
who were fully aware of the divisive debates of 1949, accepted what had been
25
proposed by Prof. Chakraverty as a fundamental Constitutional principle. As a
consequence, the People of Pakistan were given due status and recognition and
they were specifically mentioned in our Constitutional Preamble as recipients of
temporal “authority to be exercised by [them] as a sacred trust”. This was a
remarkable and fundamental change from the text of the Objectives Resolution
where authority had been proposed to be delegated by Allah Almighty to the State
of Pakistan and NOT its people. The second fundamental, and in my view crucial,
difference was that in 1949 it was the Constituent Assembly which had resolved to
frame the Constitution for the State of Pakistan. In 1973 as expressly stated in the
Preamble it was the People who were by their will, creating the Constitutional
Order as per their commands. These are remarkable features of the Constitution
which appear to have escaped the attention of Courts
Object and Scope of the preamble
The proper function of the preamble is to explain certain facts which are necessary
to be explained before the provisions contained in the Act can be properly
apprehended.
(Practical Legislation by Henry Thring)
The preamble of an Act usually states the general object and intention of the
legislature for enacting it. If the enacting part is ambiguous or open to doubts, the
preamble may be referred to resolve this ambiguity or doubt. Generally, for the
purpose of interpretation, the preamble of the constitution stands in the same
position as the preamble of an Act.
(Maxwell, The Interpretation of Statutes)
The preamble has sometimes been referred to as a supra constitutional instrument

and Grund Norm by which the constitutionality of the provisions of the
constitution is to be judged.
Grund Norm.
Basic Norm, the law from which all other laws in a society derive…..the validity of
all laws is tested against the basic norm. (Black’s Law
Dictionary).
A concept of Continental jurists indicating a basic pattern of rights, obligations and

procedure rooted in the thoughts, habits and life of the people like Common law of
the Anglo-Saxon system. Its jurisprudential value is that the law makers are bound
to pay regard to the norm relevant to the law they are making.
CJ of Lahore High Court, Hussain Naqi v/s The District Magistrate of Lahore,
defined Grund Norm as “the ideology, aim and final object of a country or
nation.”
26
Asma Jillani Case (PLD 1972 SC 139)
CJ Hamoodur Rehman observed in Asma Jillani Case PLD 1972 SC 139) that in
any event, if a Grund norm is necessary for us I do not have to look to the Western
legal theorists to discover one. Our own Grund norm is enshrined in our own
doctrine that the legal sovereignty over the entire universe belongs to Almighty
Allah alone, and the authority exercisable by the people within the limits
prescribed by him a sacred trust. This is an immutable and unalterable norm which
was clearly accepted in the Objectives Resolution passed by the Constituent
Assembly of Pakistan on the 7th of March 1949. Justice Sajjad observed that the
Objectives Resolution is not just a preface. It embodies the spirit and the
fundamental norms of the constitutional concept of Pakistan.
The observations in Asma Jillani case have .been interpreted as pronouncement by

the Court of Objective Resolutions to be grund norm of constitution of Pakistan
having a supra constitutional status.
Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 265)
Ch. Ijaz Ahmed, J. has summed up the position of the Preamble. He noted that the
Preamble … shows the will of the people … and is the key to understand[ing] the
constitution. These are not idle words meant to pay lip service or to sing vacuous
paeans to the Preamble without the intention of giving meaning to its exceptional
nature and content. If indeed the Preamble is the cornerstone of Pakistan’s legal
edifice or the key to its understanding then it cannot be reduced to the status of
meaningless verbiage which is what necessarily will happen if it is held that
Parliament has an absolute, unfettered and limitless power to change the
Constitution, regardless of the commands in the Preamble.
18th and 21st amendment case
Qazi Faez Isa, J.observed that Parliamentarians, who adorn the House after the
promulgation of the 1973 Constitution or will do so in the future, do not have the
constituent powers of the first parliamentarians, therefore, they cannot amend the
Constitution in a manner that contravenes the provisions of the Preamble to the
Constitution, and in particular any amendment that may abolish, take away or
abridge any of the fundamental rights of the people.
Qazi Faez Isa, J.: Parliament is transient, the constitution is for all times
Because, learned judge further observed that, it needs to be remembered that

parliamentarians are elected for a prescribed period, i.e. every Parliament by its
very nature is transient, whereas the Constitution abides and is required to be
preserved, protected and defended for all times. Certain features mentioned in the
Preamble of the Constitution cannot be abrogated. Judges must fulfill their Oath to
“preserve, protect and defend the Constitution” from injury or destruction and to
27
ensure the survival of the guaranteed Fundamental Rights of the people because
the Constitution itself expects no less.
State v/s Zia Ur Rehman (PLD 1973 SC 49.)
The statements in Asma Jillani case have been interpreted as pronouncement by

having a supra constitutional status. However, this ambiguity was cleared by
Hamoodur Rehman himself in a later case i.e. State v/s Zia Ur Rehman (PLD 1973
SC 49.)
Supreme Court in State v/s Zia Ur Rehman (PLD 1973 SC 49), held that Objective
Resolutions is neither the grund norm nor the supra constitutional instrument, it has
not the same status or authority as the operative part of the constitution itself unless
it is incorporated therein…it can be looked at to ascertain the meaning of a
provision of constitution but cannot control the substantive provisions. CJ,
Hamoodur Rehman, clearing the ambiguity created by his observation in Asma
Jillani Case, observed that “So far as the Objectives Resolution of 1949 is
concerned, there is no dispute that it is an important document which proclaims the
aims and objectives sought to be attained by the people of Pakistan; but it is not a
supra‐Constitutional document, nor is it enforceable as such, for, having been
incorporated as a preamble it stands on the same footing as a preamble. It may be
looked at to remove doubts if the language of any provision of the Constitution is
not clear, but it cannot override or control the clear provisions of the Constitution
itself.”
Statement of Hamoodur Rehman is conditional in Asma Jillani Case
Ambiguity can be further cleared if the excerpt from the Asma Jillani case is read
with reference to context. CJ, Hamoodur Rehman while discussing the Dosso Case
(PLD 1958 SC 533), where the grund norm as elaborated by Kelsen was presented
before him, observed that there is no need to look into western philosophies to
import the grund norm. Hamoodur Rehman referred to Objective Resolutions only
as a possible grund norm. It should also be noted that his statement is conditional
statement i.e. “in any event, if a grund norm is necessary….” Clearly providing
that it was only an argument stated to counter the use of Western legal theorist in
the said case and not to state an binding opinion of the Court.
No Grund Norm view in further cases
The view that Objective Resolution is not grund norm of the Constitution of
Pakistan is also taken:
By CJ of Lahore High Court in Hussain Naqi v/s The District Magistrate of

Lahore (PLD 1973 Lah 164)
The full bench of Lahore High Court in Asma Jehangir v/s Government of Punjab
(PLD 1972 Lah 382)
28
Insertion of Objectives Resolution in the Constitution as article 2A
The confusion surrounding its status was exasperated after Objectives Resolution
was made a “substantive” part of the Constitution through Article 2A, inserted
through President's Order No.14 of 1985. For some it means that the Objectives
Resolution was not a Supra‐Constitutional document and that Courts being the
creatures of the Constitution could not strike down any of its provisions and,
therefore, it was not open to a Court to countenance any prayer to that effect.
While others understood these observations to imply that in case the Objectives
Resolution got incorporated into the Constitution and became its substantive part,
it then could control the other provisions of the Constitution.”
Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99
For example, Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99) the
Lahore High Court observed that wording of the preamble itself shows that
Objectives Resolutions is a mandate given by the people to their representatives to
frame a constitution in the light of guidelines supplied. The tenor of the objectives
resolution is that it is an acknowledged command of the people directed against
their representatives to act in the manner provided therein. All measures which
conflict with the ideology, aim and final object of the country and nation can be
questioned under article 2A
Hakim Khan’s case (PLD 1992 SC 595)
Similarly it was argued in Hakim Khan’s case (PLD 1992 SC 595), that after the
inclusion of Objectives Resolution as substantive part of the Constitution it “has
clearly acquired the status of a supra‐Constitutional document. Resultantly, any of
the existing provisions of the Constitution which conflicts with its terms and is
inconsistent or repugnant to its principles and provisions has become inoperative
and of no legal effect and can be so declared by the Courts
Court’s held in Hakim Khan Case
However, Court did not agree with this argument and held that the word
“substantive” means “an essential part or constituent or relating to what is
essential”, after the inclusion of Article 2A into the Constitution, Objectives
Resolution possess the “same weight and status as other Articles of the
Constitution which are already a substantive part thereof.” Court then proceeded
to consider the implications of the scenario when Article 2A would become in
control of the Constitution. In such a situation, most of the Articles of the
Constitution would become questionable on the touchstone of the Objectives
Resolution, which in relation to the Constitution would “result in undermining it
and pave the way for its eventual destruction or at least its continuance in its
present form.” That this could not be allowed to happen as inconsistencies
between provisions of the Constitution and Objectives Resolution were to be
harmoniously interpreted instead of annulling existing provisions of the
Constitution which cannot be undertaken by any Court.
29
Court view in Hakim Khan Case
Court further held that
 every provision of the Constitution has to be given its meaning and effect.
 No substantive Constitutional provision can be given any superiority over

the other provisions.
 They have to be read alongwith other provisions as an integral part of the

Constitution which is an organic document having come to stay once for all
unless it is amended in accordance with Article 239 of the Constitution.
Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901)
Justice Saleem Akhtar, relying on the earlier case of Hakim Khan, held that: “As is
obvious from the aforestated weighty observations, Article 2A cannot be pressed
into service for striking down any provision of the Constitution on the grounds that
it is not self‐executory and also that another provision of the Constitution cannot
be struck down being in conflict with any other provision of the Constitution.”
Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)
This Court in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457) after
discussing series of Indian case law on the subject of basic structure in paragraphs
190 to 192, held that “no provision of the Constitution can be ultra vires, because
there is no touchstone outside the Constitution by which the validity of a provision
of the Constitution can be judged.”
Benazir Bhutto and others v/s President of Pakistan and others (PLD 1998 SC
388)
The Court held that the provisions in the Constitution are to be construed in such a
way which promotes harmony between different provisions and should not render
any particular provision to be redundant as the intention is that the Constitution
should be workable to ensure survival of the system which is enunciated therein for
the governance of the country. It is held in opinion of the Supreme Court in Special
Reference No.1 of 1957(PLD 1957 SC 219) that effect should be given to every
part and every word of the Constitution. Hence, as a general rule, the Courts should
avoid a construction which renders any provision meaningless or inoperative and
must lean in favour of a construction which will render every word operative rather
than one which may make some words idle and nugatory
Mahmood Khan Achakzai v/s Federation of Pakistan (PLD 1997 SC 426)
Court held that Islamic provisions are very much embedded in the Constitution of
1973 as Article 2 thereof envisages that Islam shall be that State religion of
Pakistan and Article 227 provides that all existing laws shall be brought in
conformity with the Injunctions of Islam as laid down in the Holy Qur’an and
Sunnah. Further Article 228 provides for setting up Council of Islamic Ideology.
Similar provisions existed in Articles 197 and 198 of the Constitution of 1956 and
Articles 199 to 207 of the Constitution of 1962. Similar Islamic provisions existed
30
in the Interim Constitution of 1972 from Articles 251 to 259. In nutshell it can be
said that basic structure as such is not specifically mentioned in the Constitution of
1973 but Objectives Resolution as preamble of the Constitution and now inserted
as the substantive part in the shape of Article 2-A when read with other provisions
of the Constitution reflects salient features of the Constitution highlighting
federalism, parliamentary form of Government blended with Islamic provisions.
CJ, Sajjad Ali Shah Observed that Constitution imposed no limitation whatsoever
on the power of the Parliament to amend any provision of the
Constitution……amendments to the Constitution remain subject to limitation that
the salient feature or basic characteristic of the Constitution providing for
Federalism, Parliamentary Democracy and Islamic provisions as envisaged in the
Objectives Resolution/Preamble to the Constitution of 1973 which have become
substantive part of the Constitution remain untouched.
Court also held that basic structure theory has been completely rejected so far as
the Constitution of Pakistan is concerned. Provisions of the constitution cannot be
struck down on the basis of being violative of any prominent feature, character or
structure of the constitution. Even in the presence of article 2A as substantive part
of the constitution, the court cannot strike down any of the provision of the
constitution on its touchstone.
Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of Pakistan and
others (PLD 1998 SC 1263)
The fourteenth constitutional amendment Article 63A was introduced providing for
disqualification of a Member of National Assembly or Provincial Assemblies upon
his defection from the party on whose ticket he got elected. This amendment was
challenged by Wukala Mahaz Barai Tahafuz Dastoor, on whose behalf again the
basic structure theory was invoked for the purpose of striking down the
amendment. Mr. Justice Ajmal Mian, the then Chief Justice of Pakistan, wrote the
leading judgment wherein he discussed the case law of India and Pakistan on the
subject and concluded that “from the above case law, it is evident that in Pakistan
the basic structure theory consistently had not been accepted.” However, it may
be pointed out that in none of the above reports the impugned Article was such
which could have been treated as altering the basic feature/structure of the
Constitution. If the Parliament by a Constitutional Amendment makes Pakistan as
a secular State, though Pakistan is founded as an Islamic Ideological State, can it
be argued that this Court will have no power to examine the vires of such an
amendment?
Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 Supreme Court 719)
which challenged 17th amendment as being violative of the basic structure of the
Constitution of Pakistan. Court held that there was almost three decades of settled
law to the effect that even though there were certain salient features of the
31
Constitution, no Constitutional amendment could be struck down by the superior
judiciary as being violative of those features. The remedy lay in the political and
not the judicial process. The appeal in such cases was to be made to the people not
the Courts. A Constitutional amendment posed a political question, which could be
resolved only through the normal mechanisms of parliamentary democracy and
free elections.
Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 Supreme Court

719)
Court further held that It may finally be noted that the basic structure theory,
particularly as applied by the Supreme Court of India, is not a new concept so far
as Pakistani jurisprudence is concerned but has been already considered and
rejected after considerable reflection as discussed in the cases noted hereinabove.
Nazim Hussain Siddiqui, CJ, observed in paragraph 56) that, “the superior Courts
of this country have consistently acknowledged that while there may be a basic
structure to the Constitution”, but “such limitations [to amend the Constitution]
are to be exercised and enforced not by the judiciary, but by the body politic, i.e.,
the people of Pakistan.”
Nadeem Ahmed, Advocate v Federation of Pakistan (PLD 2010 SC 1165)
SC of Pak did not strike down the 18th amendment on the on the touchstone of
grund norm rather it recommended changes in the amendment for appointment of
judges to Parliament.
SC judgment in 18th and 21st Constitutional amendment case
NASIR‐UL‐MULK, C.J held that the basic structure theory has been recognized
only to the extent of identifying salient or fundamental features of our Constitution.
However, the theory has never been accepted or applied as a ground for striking
down amendment in the Constitution. The Court has consistently refused to follow
the position taken by the Supreme Court of India on the subject.
Does OR represent the will of the people?
Does Objective Resolutions represents the will of the people of Pakistan and is the
parliament not empowered to bring amendment to the constitution which are
conflicting with it?
CJ observed that it is in the preamble of the 1973 Constitution that the will of the
people is declared in these words: “Now, therefore, we, the people of Pakistan…
Do hereby, through our representatives in the National Assembly, adopt, enact and
give to ourselves, this Constitution.” This declaration of “we, the people of
Pakistan” was neither a part of the Objectives Resolution as it was passed in 1949
nor as preamble to the Constitution of 1956 and 1962.
32
However, the will of the people in enacting the Constitution of 1973 was that the
Objectives Resolution was nothing more than a Preamble. The Objectives
Resolution which was made substantive part of the Constitution through Article 2A
was that annexed to the Constitution. The text of the annexure is different from the
preamble of the Constitution in that the declaration made by “we, the people of
Pakistan” has been omitted, for obvious reasons as the Annex was introduced by a
military ruler. This goes to show that the original Constitution of 1973,
representing the will of the people through their chosen representatives, had
declared the Objectives Resolution to be only a preamble to the Constitution and
not its substantive part. This amendment was therefore, not expression of the will
of the people. Though, Article 2A has since been acknowledged and accepted as
substantive part of the Constitution, it does not however, represent the will of the
people.
It follows from the above discussion that notwithstanding the inclusion of Article
2A whereby the Objectives Resolution has been made a substantive part of the
Constitution, it neither controls other provisions of the Constitution nor can other
provisions of the Constitution be struck down on the ground that they come into
conflict with it. The Objectives Resolution as substantive part of the Constitution
can be used in interpretation of other provisions of the Constitution in case of
doubt.
Position of the Preamble vis‐a‐vis the operative parts of the Constitution
Mr. Abdul Hafeez Pirzada, as the Federal Minister for Law and Parliamentary
Affairs, who presented the draft Bill of the Constitution before the parliament,
explained the “position of the Preamble vis‐a‐vis the operative parts of the
Constitution” in the following words:
Preamble essentially is not an operative part of the Constitution. Preamble is a

preamble which makes manifestation of intention on the part of Legislature. In the
past some people have claimed the preamble which reflects the Objectives
Resolution of the first Constituent Assembly of Pakistan of 1949 as the grundnome
(sic) making the crest of the Constitution subservient to the preamble.
This is not the correct position. Preamble cannot be relied upon for the purposes of
interpretation or enforcement of the Constitution where of the language of the
Constitution is absolutely clear. This view was always the accepted view and only
lately, in a case, the Supreme Court of Pakistan has reaffirmed this position that
preamble is not a grundnome (sic). We have also got some cases in which
judgment has been delivered by a superior court in Pakistan whereby it is said that
by virtue of the preamble, Judges of the High Courts, without disrespect to them,
derived some divine power under the preamble to supersede the Constitution. I
would like to categorically state that nothing could be more wrong than this...
Therefore, the preamble at best serves as what is supposed to be manifestation of
intention, nothing beyond that

33
And only where the language is incapable of interpretation can the manifestation
of intention be looked upon. Once that is done, that is the end. Preamble does not
serve any purpose beyond this. It cannot be over‐riding, it cannot be dominant, it
cannot make Constitution subservient to the language and the preamble. It is not a
supra‐Constitutional document or instrument as has been stated in the past in a
judgement which now we have reversed through a judgement of the Supreme
Court. So Sir, this I would like to go on record that preamble although contained in
a Constitutional document, is not part and parcel of the operative portion of the
Constitution so as to govern the rules of interpretation with regard to the
Constitution.”
The will of the people, as is represented through their representatives in the

Constituent Assembly was not to grant a supra‐Constitutional status to the
Objectives Resolution, dominating rest of the provisions and structure of the
Constitution. It was to remain as the preamble to the Constitution. No objection to
its status as preamble of the Constitution was raised from any side in the
Constitution making process of 1973, as can be seen from the archive of the
Constitution Making Debates.
The speech by Mr. Pirzada, while presenting the draft of the Bill of the
Constitution before the parliament, shows that people through their
representatives only wanted to retain the Objectives Resolution as preamble to the
Constitution, as was also done in the previous two Constitutions.
 As a Preamble to the Constitution
 As its substantive part
 Guideline Speech of Q. Azam
 In his guideline speech to the constituent assembly on 11th August, 1947

Quaid-e-Azam M. Ali Jinnah said:
 “You are free; you are free to go to your temples, you are free to go to your
mosques or to any other place of worship in this state of Pakistan. You may
belong to any religion, or caste or creed---that has nothing to do with the
business of the state….we are all citizens and equal citizens of one state….
and you will find that in the course of time Hindus will cease to be Hindus
and Muslims will cease to be Muslims, not in the religious sense because
that is the personal faith of each individual, but in the political sense as
citizens of the state”
 OR passed after QA death
34
 However, within six months of his death the Constituent Assembly of
Pakistan passed a resolution on the ‘Aims and Objects of the Constitution’
on 12th March 1949, popularly known as Objectives Resolutions.
 Liaquat Ali Khan then PM said that “We, the people of Pakistan, have the
courage to believe firmly that all authority should be exercised in
accordance with the standards laid down in Islam so that it may not be
misused.”
Recipient of Allah’s authority
The Objectives Resolution of 1949 had talked of Allah Almighty having delegated
His authority to the state. Professor Raj Kumar Chakravarty, a member of the
Pakistan National Congress party which was largely based in East Pakistan,
suggested that the delegate of God’s authority should be the people and not the
state. He argued that “First come people and then the state… a state is formed by
the people, guided by the people and controlled by the people.” The professor took
exception to the text of the Objectives Resolution as it meant that “once a state
comes into existence it becomes all-in-all; it is supreme, quite supreme over the
people…” He argued that the state had to be responsive to the public opinion and
to the public demand but the resolution implied that the state need not meet these
criteria.
Chakraverty’s view accommodated in 1973
Jawwad S. Khawaja, J. observed in 21st constitutional amendment case that though

Prof. Chakraverty was unsuccessful in 1949, our Constitution makers in 1972‐73
who were fully aware of the divisive debates of 1949, accepted what had been
proposed by Prof. Chakraverty as a fundamental Constitutional principle. As a
consequence, the People of Pakistan were given due status and recognition and
they were specifically mentioned in our Constitutional Preamble as recipients of
temporal “authority to be exercised by [them] as a sacred trust”. This was a
remarkable and fundamental change from the text of the Objectives Resolution
where authority had been proposed to be delegated by Allah Almighty to the State
of Pakistan and NOT its people. The second fundamental, and in my view crucial,
difference was that in 1949 it was the Constituent Assembly which had resolved to
frame the Constitution for the State of Pakistan. In 1973 as expressly stated in the
Preamble it was the People who were by their will, creating the Constitutional
Order as per their commands. These are remarkable features of the Constitution
which appear to have escaped the attention of Courts
The proper function of the preamble is to explain certain facts which are necessary
to be explained before the provisions contained in the Act can be properly
apprehended.
35
The preamble of an Act usually states the general object and intention of the
legislature for enacting it. If the enacting part is ambiguous or open to doubts, the
preamble may be referred to resolve this ambiguity or doubt. Generally, for the
purpose of interpretation, the preamble of the constitution stands in the same
The preamble has sometimes been referred to as a supra constitutional instrument

and Grund Norm by which the constitutionality of the provisions of the
constitution is to be judged.
Grund Norm.
Basic Norm, the law from which all other laws in a society derive…..the validity of
all laws is tested against the basic norm. (Black’s Law Dictionary).
A concept of Continental jurists indicating a basic pattern of rights, obligations

and procedure rooted in the thoughts, habits and life of the people like Common
law of the Anglo-Saxon system. Its jurisprudential value is that the law makers are
bound to pay regard to the norm relevant to the law they are making.
CJ of Lahore High Court, Hussain Naqi v/s The District Magistrate of Lahore,
defined Grund Norm as “the ideology, aim and final object of a country or
nation.”
Asma Jillani Case (PLD 1972 SC 139)
CJ Hamoodur Rehman observed in Asma Jillani Case PLD 1972 SC 139) that in
any event, if a Grund norm is necessary for us I do not have to look to the Western
legal theorists to discover one. Our own Grund norm is enshrined in our own
doctrine that the legal sovereignty over the entire universe belongs to Almighty
Allah alone, and the authority exercisable by the people within the limits
prescribed by him a sacred trust. This is an immutable and unalterable norm which
was clearly accepted in the Objectives Resolution passed by the Constituent
Assembly of Pakistan on the 7th of March 1949. Justice Sajjad observed that the
Objectives Resolution is not just a preface. It embodies the spirit and the
fundamental norms of the constitutional concept of Pakistan.
The observations in Asma Jillani case have .been interpreted as pronouncement by

having a supra constitutional status.
Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 265)
Ch. Ijaz Ahmed, J. has summed up the position of the Preamble. He noted that the
Preamble … shows the will of the people … and is the key to understand[ing] the
constitution. These are not idle words meant to pay lip service or to sing vacuous
paeans to the Preamble without the intention of giving meaning to its exceptional
nature and content. If indeed the Preamble is the cornerstone of Pakistan’s legal
edifice or the key to its understanding then it cannot be reduced to the status of
36
meaningless verbiage which is what necessarily will happen if it is held that
Parliament has an absolute, unfettered and limitless power to change the
Constitution, regardless of the commands in the Preamble.
18TH AND 21ST AMENDMENT CASE
Qazi Faez Isa, J.observed that Parliamentarians, who adorn the House after the
promulgation of the 1973 Constitution or will do so in the future, do not have the
constituent powers of the first parliamentarians, therefore, they cannot amend the
Constitution in a manner that contravenes the provisions of the Preamble to the
Constitution, and in particular any amendment that may abolish, take away or
abridge any of the fundamental rights of the people.
Qazi Faez Isa, J.: Parliament is transient, the constitution is for all times
Because, learned judge further observed that, it needs to be remembered that

parliamentarians are elected for a prescribed period, i.e. every Parliament by its
very nature is transient, whereas the Constitution abides and is required to be
preserved, protected and defended for all times. Certain features mentioned in the
Preamble of the Constitution cannot be abrogated. Judges must fulfill their Oath to
“preserve, protect and defend the Constitution” from injury or destruction and to
ensure the survival of the guaranteed Fundamental Rights of the people because
the Constitution itself expects no less.
The statements in Asma Jillani case have been interpreted as pronouncement by

having a supra constitutional status. However, this ambiguity was cleared by
Hamoodur Rehman himself in a later case i.e. State v/s Zia Ur Rehman (PLD 1973
SC 49.)
Supreme Court in State v/s Zia Ur Rehman (PLD 1973 SC 49), held that Objective
Resolutions is neither the grund norm nor the supra constitutional instrument, it has
not the same status or authority as the operative part of the constitution itself unless
it is incorporated therein…it can be looked at to ascertain the meaning of a
provision of constitution but cannot control the substantive provisions. CJ,
Hamoodur Rehman, clearing the ambiguity created by his observation in Asma
Jillani Case, observed that “So far as the Objectives Resolution of 1949 is
concerned, there is no dispute that it is an important document which proclaims the
aims and objectives sought to be attained by the people of Pakistan; but it is not a
supra‐Constitutional document, nor is it enforceable as such, for, having been
incorporated as a preamble it stands on the same footing as a preamble. It may be
looked at to remove doubts if the language of any provision of the Constitution is
not clear, but it cannot override or control the clear provisions of the Constitution
itself.”
Statement of Hamoodur Rehman is conditional in Asma Jillani Case
37
Ambiguity can be further cleared if the excerpt from the Asma Jillani case is read
with reference to context. CJ, Hamoodur Rehman while discussing the Dosso Case
(PLD 1958 SC 533), where the grund norm as elaborated by Kelsen was presented
before him, observed that there is no need to look into western philosophies to
import the grund norm. Hamoodur Rehman referred to Objective Resolutions only
as a possible grund norm. It should also be noted that his statement is conditional
statement i.e. “in any event, if a grund norm is necessary….” Clearly providing
that it was only an argument stated to counter the use of Western legal theorist in
the said case and not to state an binding opinion of the Court.
The view that Objective Resolution is not grund norm of the Constitution of
Pakistan is also taken:
By CJ of Lahore High Court in Hussain Naqi v/s The District Magistrate of

Lahore (PLD 1973 Lah 164)
The full bench of Lahore High Court in Asma Jehangir v/s Government of Punjab
(PLD 1972 Lah 382)
Insertion of Objectives Resolution in the Constitution as article 2A
The confusion surrounding its status was exasperated after Objectives Resolution
was made a “substantive” part of the Constitution through Article 2A, inserted
through President's Order No.14 of 1985. For some it means that the Objectives
Resolution was not a Supra‐Constitutional document and that Courts being the
creatures of the Constitution could not strike down any of its provisions and,
therefore, it was not open to a Court to countenance any prayer to that effect.
While others understood these observations to imply that in case the Objectives
Resolution got incorporated into the Constitution and became its substantive part,
it then could control the other provisions of the Constitution.”
Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99
For example, Sakina Bibi v/s Federation of Pakistan (PLD 1992 Lah. 99) the
Lahore High Court observed that wording of the preamble itself shows that
Objectives Resolutions is a mandate given by the people to their representatives to
frame a constitution in the light of guidelines supplied. The tenor of the objectives
resolution is that it is an acknowledged command of the people directed against
their representatives to act in the manner provided therein. All measures which
conflict with the ideology, aim and final object of the country and nation can be
questioned under article 2A
Hakim Khan’s case (PLD 1992 SC 595)
Similarly it was argued in Hakim Khan’s case (PLD 1992 SC 595), that after the
inclusion of Objectives Resolution as substantive part of the Constitution it “has
clearly acquired the status of a supra‐Constitutional document. Resultantly, any of
the existing provisions of the Constitution which conflicts with its terms and is
38
inconsistent or repugnant to its principles and provisions has become inoperative
and of no legal effect and can be so declared by the Courts
 every provision of the Constitution has to be given its meaning and effect.
 No substantive Constitutional provision can be given any superiority over

the other provisions.
 They have to be read alongwith other provisions as an integral part of the

Constitution which is an organic document having come to stay once for all
unless it is amended in accordance with Article 239 of the Constitution.
 Kaneez Fatima v. Wali Muhammad (PLD 1993 SC 901)
39
 Justice Saleem Akhtar, relying on the earlier case of Hakim Khan, held that:
“As is obvious from the aforestated weighty observations, Article 2A cannot
be pressed into service for striking down any provision of the Constitution
on the grounds that it is not self‐executory and also that another provision of
the Constitution cannot be struck down being in conflict with any other
provision of the Constitution.”
 Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)
 This Court in Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457)

after discussing series of Indian case law on the subject of basic structure in
paragraphs 190 to 192, held that “no provision of the Constitution can be
ultra vires, because there is no touchstone outside the Constitution by which
the validity of a provision of the Constitution can be judged.”
 Benazir Bhutto and others v/s President of Pakistan and others (PLD 1998
SC 388)
 The Court held that the provisions in the Constitution are to be construed in
such a way which promotes harmony between different provisions and
should not render any particular provision to be redundant as the intention is
that the Constitution should be workable to ensure survival of the system
which is enunciated therein for the governance of the country. It is held in
opinion of the Supreme Court in Special Reference No.1 of 1957(PLD 1957
SC 219) that effect should be given to every part and every word of the
Constitution. Hence, as a general rule, the Courts should avoid a
construction which renders any provision meaningless or inoperative and
must lean in favour of a construction which will render every word operative
rather than one which may make some words idle and nugatory
 Mahmood Khan Achakzai v/s Federation of Pakistan (PLD 1997 SC 426)
 Court held that Islamic provisions are very much embedded in the
Constitution of 1973 as Article 2 thereof envisages that Islam shall be that
State religion of Pakistan and Article 227 provides that all existing laws
shall be brought in conformity with the Injunctions of Islam as laid down in
the Holy Qur’an and Sunnah. Further Article 228 provides for setting up
Council of Islamic Ideology. Similar provisions existed in Articles 197 and
198 of the Constitution of 1956 and Articles 199 to 207 of the Constitution
of 1962. Similar Islamic provisions existed in the Interim Constitution of
1972 from Articles 251 to 259. In nutshell it can be said that basic structure
as such is not specifically mentioned in the Constitution of 1973 but
Objectives Resolution as preamble of the Constitution and now inserted as
the substantive part in the shape of Article 2-A when read with other
provisions of the Constitution reflects salient features of the Constitution
highlighting federalism, parliamentary form of Government blended with
Islamic provisions.
40
 CJ, Sajjad Ali Shah Observed that Constitution imposed no limitation
whatsoever on the power of the Parliament to amend any provision of the
Constitution……amendments to the Constitution remain subject to
limitation that the salient feature or basic characteristic of the Constitution
providing for Federalism, Parliamentary Democracy and Islamic provisions
as envisaged in the Objectives Resolution/Preamble to the Constitution of
1973 which have become substantive part of the Constitution remain
untouched.
 Court also held that basic structure theory has been completely rejected so
far as the Constitution of Pakistan is concerned. Provisions of the
constitution cannot be struck down on the basis of being violative of any
prominent feature, character or structure of the constitution. Even in the
presence of article 2A as substantive part of the constitution, the court
cannot strike down any of the provision of the constitution on its touchstone.
 Wukala Mahaz Barai Tahafaz Dastoor and another vs. Federation of

Pakistan and others (PLD 1998 SC 1263)
 The fourteenth constitutional amendment Article 63A was introduced

providing for disqualification of a Member of National Assembly or
Provincial Assemblies upon his defection from the party on whose ticket he
got elected. This amendment was challenged by Wukala Mahaz Barai
Tahafuz Dastoor, on whose behalf again the basic structure theory was
invoked for the purpose of striking down the amendment. Mr. Justice Ajmal
Mian, the then Chief Justice of Pakistan, wrote the leading judgment
wherein he discussed the case law of India and Pakistan on the subject and
concluded that “from the above case law, it is evident that in Pakistan the
basic structure theory consistently had not been accepted.” However, it
may be pointed out that in none of the above reports the impugned Article
was such which could have been treated as altering the basic
feature/structure of the Constitution. If the Parliament by a Constitutional
Amendment makes Pakistan as a secular State, though Pakistan is founded
as an Islamic Ideological State, can it be argued that this Court will have no
power to examine the vires of such an amendment?
 Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 Supreme

Court 719)
 which challenged 17th amendment as being violative of the basic structure of

the Constitution of Pakistan. Court held that there was almost three decades
of settled law to the effect that even though there were certain salient
features of the Constitution, no Constitutional amendment could be struck
down by the superior judiciary as being violative of those features. The
remedy lay in the political and not the judicial process. The appeal in such
cases was to be made to the people not the Courts. A Constitutional
41
amendment posed a political question, which could be resolved only through
the normal mechanisms of parliamentary democracy and free elections.
 Pakistan Lawyers Forum v. Federation of Pakistan (PLD 2005 Supreme

Court 719)
 Court further held that It may finally be noted that the basic structure theory,
particularly as applied by the Supreme Court of India, is not a new concept
so far as Pakistani jurisprudence is concerned but has been already
considered and rejected after considerable reflection as discussed in the
cases noted hereinabove.
 Nazim Hussain Siddiqui, CJ, observed in paragraph 56) that, “the superior
Courts of this country have consistently acknowledged that while there may
be a basic structure to the Constitution”, but “such limitations [to amend
the Constitution] are to be exercised and enforced not by the judiciary, but
by the body politic, i.e., the people of Pakistan.”
 Nadeem Ahmed, Advocate v Federation of Pakistan (PLD 2010 SC 1165)
 SC of Pak did not strike down the 18th amendment on the on the touchstone
of grund norm rather it recommended changes in the amendment for
appointment of judges to Parliament.
 SC judgment in 18th and 21st Constitutional amendment case
 NASIR‐UL‐MULK, C.J held that the basic structure theory has been
recognized only to the extent of identifying salient or fundamental features of
our Constitution. However, the theory has never been accepted or applied as
a ground for striking down amendment in the Constitution. The Court has
consistently refused to follow the position taken by the Supreme Court of
India on the subject.
 Does OR represent the will of the people?
 Does Objective Resolutions represents the will of the people of Pakistan and
is the parliament not empowered to bring amendment to the constitution
which are conflicting with it?
 CJ observed that it is in the preamble of the 1973 Constitution that the will
of the people is declared in these words: “Now, therefore, we, the people of
Pakistan…
 Do hereby, through our representatives in the National Assembly, adopt,

enact and give to ourselves, this Constitution.” This declaration of “we, the
people of Pakistan” was neither a part of the Objectives Resolution as it was
passed in 1949 nor as preamble to the Constitution of 1956 and 1962.
 Does OR represent the will of the people?
 However, the will of the people in enacting the Constitution of 1973 was that
the Objectives Resolution was nothing more than a Preamble. The
42
Objectives Resolution which was made substantive part of the Constitution
through Article 2A was that annexed to the Constitution. The text of the
annexure is different from the preamble of the Constitution in that the
declaration made by “we, the people of Pakistan” has been omitted, for
obvious reasons as the Annex was introduced by a military ruler. This goes
to show that the original Constitution of 1973, representing the will of the
people through their chosen representatives, had declared the Objectives
Resolution to be only a preamble to the Constitution and not its substantive
part. This amendment was therefore, not expression of the will of the people.
Though, Article 2A has since been acknowledged and accepted as
substantive part of the Constitution, it does not however, represent the will
of the people.
 It follows from the above discussion that notwithstanding the inclusion of

Article 2A whereby the Objectives Resolution has been made a substantive
part of the Constitution, it neither controls other provisions of the
Constitution nor can other provisions of the Constitution be struck down on
the ground that they come into conflict with it. The Objectives Resolution as
substantive part of the Constitution can be used in interpretation of other
provisions of the Constitution in case of doubt.
 Position of the Preamble vis‐a‐vis the operative parts of the Constitution
 Mr. Abdul Hafeez Pirzada, as the Federal Minister for Law and
Parliamentary Affairs, who presented the draft Bill of the Constitution before
the parliament, explained the “position of the Preamble vis‐a‐vis the
operative parts of the Constitution” in the following words:
 Preamble essentially is not an operative part of the Constitution. Preamble is

a preamble which makes manifestation of intention on the part of
Legislature. In the past some people have claimed the preamble which
reflects the Objectives Resolution of the first Constituent Assembly of
Pakistan of 1949 as the grundnome (sic) making the crest of the Constitution
subservient to the preamble.
 This is not the correct position. Preamble cannot be relied upon for the
purposes of interpretation or enforcement of the Constitution where of the
language of the Constitution is absolutely clear. This view was always the
accepted view and only lately, in a case, the Supreme Court of Pakistan has
reaffirmed this position that preamble is not a grundnome (sic). We have
also got some cases in which judgment has been delivered by a superior
court in Pakistan whereby it is said that by virtue of the preamble, Judges of
the High Courts, without disrespect to them, derived some divine power
under the preamble to supersede the Constitution. I would like to
categorically state that nothing could be more wrong than this... Therefore,
the preamble at best serves as what is supposed to be manifestation of
intention, nothing beyond that
43
And only where the language is incapable of interpretation can the
manifestation of intention be looked upon. Once that is done, that is the end.
Preamble does not serve any purpose beyond this. It cannot be over‐riding,
it cannot be dominant, it cannot make Constitution subservient to the
language and the preamble. It is not a supra‐Constitutional document or
instrument as has been stated in the past in a judgement which now we have
reversed through a judgement of the Supreme Court. So Sir, this I would like
to go on record that preamble although contained in a Constitutional
document, is not part and parcel of the operative portion of the Constitution
so as to govern the rules of interpretation with regard to the Constitution.”
 The will of the people, as is represented through their representatives in the

Constituent Assembly was not to grant a supra‐Constitutional status to the
Objectives Resolution, dominating rest of the provisions and structure of the
Constitution. It was to remain as the preamble to the Constitution. No
objection to its status as preamble of the Constitution was raised from any
side in the Constitution making process of 1973, as can be seen from the
archive of the Constitution Making Debates.
 The speech by Mr. Pirzada, while presenting the draft of the Bill of the
Constitution before the parliament, shows that people through their
representatives only wanted to retain the Objectives Resolution as preamble
to the Constitution, as was also done in the previous two Constitutions.
PART- II
Chapter Two
Fundamental Rights
Art 7-12
Definition of State
Definition of State under International Law
Article 1 of the Montevideo Convention on the Rights and Duties of States, 1933
lays down the most widely accepted criteria of statehood in international law. It
states that state as an international person should possess the following
qualifications:
(a) a permanent population
(b) a defined territory
(c) government
(d) capacity to enter into relations with other states (sovereignty)
Definition of State
44
Arbitration Commission of the European Conference on Yugoslavia, Opinion No.
01, 1991:
“the state is commonly defined as a community which consists of a territory and a

population subject to an organized political authority; that such a state is
characterized by sovereignty.”
Definition of State under art 7
In this part, unless the context otherwise requires, the State means:
 Federal Government,
 Parliament,
 A Provincial Government,
 A Provincial Assembly, and
 Local or other authorities in Pakistan as are by law empowered to impose

any tax or cess
 Why a different definition of State?
 The definition of term ‘State’ at the beginning of chapter 1, part two that
contains Fundamental Rights is meant to indicate the authorities and
instrumentalities functioning within Pakistan which shall be deemed to be
State and which, therefore, shall act in conformity with the provisions of
part two of the Constitution.
 From the definition of the state it follows that it is not only the legislative
action, but also the executive and administrative actions taken at the instance
of any agency mentioned in art. 7, that can be challenged on the grounds that
is violative of the fundamental rights guaranteed by part two
 No mention of judicature in definition of state
 Is Judicature not a State/Government Organ?
 Why Judicature is excluded from the definition of State?
 Judicature is state organ but it has been excluded from the definition of state
for the obvious reason that its function is to decide whether a fundamental
right has been violated or not? SC being on the top judicature, whose
decision are binding on all other courts in Pakistan (art189), the question that
SC has violated fundamental right will be out of question. However, the
court may review its previous decisions, under art 188, to see, inter se, that
whether fundamental right has been violated or not?
 Does the definition of State Include autonomous bodies?
 The West Pakistan Road Transport Board and WAPDA are neither federal
nor provincial governments, though they discharge functions which are
ordinarily the functions of the government. (PLD 1974 39) They can,
45
therefore, fall within the definition of State. Though these bodies are
autonomous, they are practically controlled by and are department of
government. As the definition of “person” in the interpretation clause (art
260) includes a body corporate, these autonomous bodies are persons”
(PLD 1973 Lah 82)
 Fundamental Rights against private persons?

Fundamental Rights are primarily meant to be enforced against persons
acting in the exercise of powers given to them by law i.e. public officers.
When any such right is infringed by a private individual, the aggrieved party
has his remedy under the ordinary law.
 Fundamental Right?
 Right: an interest recognized and enforced by law
 Fundamental Right: An interest recognized and protected by fundamental

law i.e. the Constitution
 Part two of the Constitution entitled ‘Fundamental Rights’ contains a clear

statement in regards to the rights of individuals (whether regarded qua
individuals or members of a wider group like a community or a religious
denomination), and these rights are fundamental not only in the sense that
they have been mentioned in and guaranteed by the constitution but are such
as neither the legislature nor the executive can in any manner curtail or
diminish. These limit legislative and executive powers and are a clog on the
temporary will of the simple majority of the legislature. They embody a
permanent and paramount law which cannot be disturbed by the will of the
legislature or executive. It can be amended only by an extra-ordinary
method of effecting the constitutional amendment as provided in article 238
and 239.
 Fundamental Rights and Human Rights
 Fundamental Rights, guaranteed by the Constitution, has a domestic outlook

and application while ‘Human Rights’ has an international perspective. The
adequacy of ‘Fundamental Rights’ has to be judged by the standards of
Human Rights as adopted in UDHR and other international instruments. A
reference to Human Rights is necessary in order to appreciate the ambit of
the concepts underlying the Fundamental Rights as well for their liberal
interpretation.
 ‘Fundamental Rights’ are the modern name for what have been traditionally
known as ‘natural rights’.
 (PLD 1995 Kar 587, PLD 1975 SC 331)
 Protection of Fundamental Rights: Art 8
 Sanctity of Fundamental Rights is protected by Art. 8 of the Constitution

which prohibits State which includes Legislature not to make any law by
46
which Fundamental Rights may be curtailed or taken away. If any law is
made to such effect, to the extent of such contravention, that law is void.
Fundamental Rights are not liable to abridged by legislative or executive
orders.
 (2015 CLC 1723)
 Laws inconsistent with or in derogation of Fundamental Rights to be void
 Sub clause (1) and (2) uses different expressions
 Sub-clause (1). Any law………..to the extent of such inconsistency, be void
 Sub-clause (2). State shall not make any law……………in contravention of

this clause
 The expression in sub-clause (1) includes all laws, existing and future laws
while
 The expression in sub-clause (2) is meant to be applicable to future law
 Definition of Law
The definition mentions and includes the following
 Statutory Law: It may be either made directly by the legislature or by other

subordinate authority under delegated law-making powers which may
appear under different names, rules, orders, regulations, notification, etc
(AIR 1960 SC 1073)
 Likewise ordinances issued by president and governors are also included in

the definition of law.
 Customs: Customs or usages having the force of law are also to be invalid if
they are inconsistent with Fundamental Rights
Exceptions:
The article expressly exempts from its operation:
(a) Laws relating to the members of armed forces or of the police or of such
forces as are charged with the maintenance of public order
(b) (i) laws specified in First Schedule, which were in force
before the commencement of the Constitution or
as amended by any of the laws specified in that
schedule.
(ii) other laws specified in Part I of the First
Schedule
Can new Laws be added to First Schedule?
47
Parliament on the strength of Art 8(3)(b)(ii) of the Constitution could add new laws
to Part I of First Schedule to the Constitution but only through the process of
amending the Constitution. However, whenever more laws were added to the First
Schedule of the Constitution, each such addition would need to be scrutinized so as
to ensure that Fundamental Rights were not substantively altered.
(PLD 2015 SC 401)
Can new Laws be added to First Schedule?
Art 8(2) of the Constitution closed the door upon any future law to be exempted
from application and enforcement of the Fundamental Rights…. Provisions of Art
8(3)(b)(i) of the Constitution only allowed amendments to the already exempted
laws to be also exempted, but never allowed any other independent law to be added
to the list of already exempted laws. Words “other laws specified in Part I of the
First Schedule” appearing in Art 8(3)(b)(ii) referred to the laws specified in Part I
of the First Schedule on the commencing day of the Constitution leaving no room
for addition to the list of specified laws at any future state. (PLD
2015 SC 401, Minority view)
First Schedule has two parts
Part I &
Part II
According to sub-clause 4, the laws specified in part II of the first schedule are to
be conformed to Fundamental Rights by the appropriate legislature within a period
of two years. However, no such direction is made regarding the laws specified in
part I of the said schedule.
Retrospective effect?
The provisions of the Constitution relating to the Fundamental Rights have no

retrospective effect (AIR 1958 SC 287, AIR 1965 SC 502). All inconsistent laws
therefore become void only from the commencement of the Constitution. Act done
before the commencement of the Constitution in contravention of provisions of any
law, which after the commencement of the Constitution becomes void with respect
to the exercise of any of the Fundamental Rights, are not affected. The inconsistent
law is not wiped out so far as the past acts are concerned.
Keshavan Madhava Menon v/s State of Bombay (AIR 1951 SC 128)
In Keshavan Madhava Menon v/s State of Bombay proceedings had been started
against appellant for an offence punishable under section 18 of Indian Press
Emergency Powers Act, 1931 in respect of a pamphlet published in 1949.
Appellant contended that the Act was inconsistent with the Fundamental Rights
conferred by the Constitution and, therefore, had become void under Art 13 (1)
after January 26, 1950.
48
SC rejected this contention and held that Art 13(1) does not have retrospective
effect. The article did not have the effect of rendering the laws, which existed on
the date of commencement of the Constitution, void ab initio for all purposes if
they were inconsistent with Fundamental Rights. Das J. said “Article 13(1) cannot
be read as obliterating the entire operation of inconsistent laws, or to wipe them out
altogether from the statute-book. To do so will be to give them retrospective effect
which, we have said, they do not possess. Such laws exist for all past transactions
and for enforcing all rights and liabilities accrued before the date of the
Constitution.”
Actions valid can’t be questioned after the law becomes invalid
Keshavan Madhava Menon case makes it quite clear that an act done before the
commencement of the Constitution, if valid according to the law then in force,
cannot be questioned, even though after the commencement of the Constitution,
under the terms of the Constitution, that Act is invalid.
(Also see PLD 1964 SC 673, PLD 1966 Pesh 19)
Rule of Severability
It is not the whole Act that should be held inoperative but only such provisions of
it as are violative of Fundamental Rights.
In State of Bombay v/s F.N. Balsara (AIR 1951 SC 318) the provisions of eight
sections of the Bombay Prohibition Act, 1949, were held ultra vires on the ground
that they infringed the Fundamental Rights of citizens. But the Act, minus invalid
provisions, was allowed to stand.
But sometimes valid and invalid provisions of an Act are so closely mixed up that
they cannot be separated from one another. In such cases, the invalidity of the
portion must result in the invalidity of the Act in entirety. The reason is that what
remains valid is so inextricably wound up with the part declared invalid, that the
valid part cannot survive independently.
How to determine that parts are severable?
In determining whether the valid parts of the statute are severable from invalid
parts thereof, it is the intention of the legislature that is determining factor.
(AIR 1957 SC 628, AIR 1984 SC 161)
In other words, the question should be asked whether the legislature would have
enacted all that which survives without enacting the part found ultra vires?
(AIR 1952 SC 252)
Art 9. Security of Person
Art 9 protects Life and Liberty
Word “life” has been interpreted in Shehla Zia Case (PLD 1994 SC 693)
49
The petitioner challenged, due to potential health risks and hazards, the Water and
Power Development Authority's (WAPDA) construction of an electricity grid
station in their neighborhood, on designated "green belt" property.
Court held that the word life in the constitution has not been used in limited
manner. A wide meaning should be given to enable a man not only to sustain life
but also to enjoy it. Court further held that word life is not restricted to animal life
or to vegetarian life. It carries with it the right to live in a clean atmosphere, a right
to live where all fundamental rights are guaranteed, a right to have a rule of law, a
right to have a clean and uncorrupted administration to govern country and right
to have protection from encroachment on privacy and liberty.
Liberty: Liberty is defined by Oxford Dictionary as being “free from control”.

According to Prof Goodhard, “It is the right or power to do one pleases”. It is
obvious that in this sense complete liberty is impossible, because liberty if carried
out to excess can lead to anarchy. The moment we join society we must surrender
some of our liberty, as the fact that a society exist means that its members are
governed by a body of rules.
Words “in accordance with law” empowers the courts to see
(a) if the deprivation of life or liberty of a person is under any law, and
(b) whether the law is valid law
The law contemplated by art 9 is one which is passed by a competent legislature

and which is not repugnant to any other article relating to Fundamental Rights or
other provisions of the Constitution.
A punitive statute must not be vague
A punitive statute which often results in deprivation of life or liberty must be clear
and not vague.
A punitive statute must not be vague. It is necessary before holding a person guilty
of an offence that he must be in a position to know what he has to do or abstain
from doing. When a statute is vague, the courts may declare it void.
(AIR 1950 SC 27)
JAMIAT-ISLAM PAKISTAN through Syed Munawar Hassan,

V/S
FEDEARTION OF PAKISTAN through Secretary, Law, Justice and
(PLD 2000 SC 111)
Section 5(2)(i) of Anti-Terrorism Act, 1997 as introduced by Ordinance XIII of
1999 to the extent, the same authorised 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 was
likely to commit a terrorist act or any scheduled offence without being fired upon,
was violative of Article 9 of the Constitution as well as the guidelines provided in
50
the case of Mehram Ali and the same is held to be invalid to the above extent and
required to be suitably amended.
JAMIAT-ISLAM PAKISTAN v/s FEDEARTION OF PAKISTAN

(PLD 2000 SC 111)
Every citizen has the inalienable right under the Constitution to know what is
prohibited by law and what the law does not require him to do. It is, therefore,
incumbent upon the State to express in clear terms susceptible of being understood
by an ordinary citizen of what is prohibited and to provide definite standards to
guide discretionary actions of police officers so as to prevent arbitrary actions of
police officers and to prevent arbitrary and discriminatory operations of section 7-
A of the Anti-Terrorism Act, 1997. In other words, it must be spelt out from a bare
reading of section 7-A as to what constitutes “internal disturbances”, “illegal
strikes”, “go-slows” and “lock-outs” in terms of section 7-A of the said Act.
We, therefore, hold that section 7-A of the impugned Act to the extent indicated
above is invalid being repugnant to the Constitution and requires to be suitably
amended.
Difference b/w Art 4 and Art 9?
Art 9 occurs in part II as Fundamental Right, Art 4 (2) (a) is outside that part.
Therefore, on the proclamation of emergency operation of art 9 may be suspended
while art 4 remains in force even during an emergency.
Art 10. Safeguard as to arrest and detention
Art 10 can be divided into two parts:
(A) Persons arrested under ordinary law
(B) Persons arrested under law relating to preventive detention
Persons arrested under ordinary law
(A) Clause (1) and (2) enjoins:
(i) that a person so arrested shall not be detained in custody without being
informed, as soon as may be, of the grounds of arrest
(ii) that he shall not be denied the rights to consult and be defended by a legal
practitioner of his own choice, and
(iii) that within a period of 24 hours he shall be produced before a magistrate
But these conditions do not apply to a person arrested under any law relating to
preventive detention.
Persons arrested under law relating to preventive detention:
Clause (4)
In the case of a person arrested under any law relating to preventive detention the
conditions are:
51
(i) that the law under which he is arrested or detained shall only deal with persons
acting in a manner prejudicial to the integrity, security, or defence of Pakistan or
any part thereof or external affairs of Pakistan, or public, order or the maintenance
of supplies or services;
(ii) that the law shall not authorize the initial detention of the person for a period
exceeding three month; though he may be further detained if the Appropriate
Review Board (ARB) after affording him an opportunity of being heard in person
and reviewing the case reports before the expiration of three months that in its
opinion there is sufficient cause for his further detention;
(iii) if the ARB so reports he may be held for a further period of three months but
if it is intended to detain him beyond that period, the opinion of ARB for his further
detention must be obtained before the expiration of each period of three months;
(B) Persons arrested under law relating to preventive detention:
(iv) that within fifteen days of his detention, the detaining authority shall
communicate to him the grounds on which the order was made and shall afford
him an early opportunity of making a representation. The authority may, however,
refuse to disclose to him facts which it considers to be against public interest to
disclose;
(v) that the authority shall furnish to the ARB all relevant documents unless the
Secretary to the Government concerned certifies that it is not in the public interest
to disclose the contents of any particular document;
(vi) that within a period of 24 months commencing on the first day of his detention
no person shall, unless he works for the enemy, be detained for more than a total
period of eight months if he was arrested for acting in a manner prejudicial to
public order and twelve months in any other case. (i.e. acting in manner prejudicial
to the integrity, security, or defence of Pakistan, or external affairs of Pakistan, or
the maintenance and supplies of services)
Maximum period of detention
Maximum period of detention is 08 months in case of a person detained for acting

in a manner prejudicial to public order and 12 months in any other case. The period
must fall within 24 months commencing from the date of his first detention. Thus,
in a case of person detained for acting in a manner prejudicial to public order, 03
references to ARB will be necessary, one before the expiry of initial period of three
months and two before the expiry of each period of three months, if it is intended
to detain him for the maximum period of 08 months.
In other cases 04 references will be needed if he is detained for a maximum of 12

months. But there is nothing to prevent a fresh order of detention being made after
the expiry of 24 months, though such order must be made on fresh grounds and
should not be a continuation of the original order with a break after 24 months.
(Ghulam Jilani v. Federation of Pakistan PLD 1975 Lah 65)
52
PLJ 2003 SC 161
[Appellate Jurisdiction]
53
FEDERATION OF PAKISTAN, through SECRETARY MINISTRY
OF INTERIOR, ISLAMABAD-Petitioner
versus
Mrs. AMATUL JALIL KHAWAJA and others-Respondents
Brief Facts
 Al-Qaeda's most wanted terrorists were being harboured and

facilitated at Manawan Compound ownership whereof rests with
Dr. Ahmed Javed Khawaja and his family. Three Saudian passports, three
Egyptian passports, one Afghani passport and the foreign currency
of USA, Saudi Arabia, Afghanistan, Iran and UAE were also
recovered.
Brief Facts
 The Federal Government in exercise of powers as conferred upon it

under the provisions as contemplated under Section 3(l)(b) of the
Security of Pakistan Act, 1952 (XXXV of 1952) passed an order
detaining Dr. Ahmad Javed Khawaja, Ahmad Nadeem Khawaja sons
of Haji Muhammad Yunus, Dr. Khizar Ali, Dr. Umar Karar sons
of Dr. Ahmed Javed Khawaja and Muhammad Usman son of
Ahmad Naveed Khawaja on account of their prejudicial
activities against State on behalf
of some Foreign Government/Organization detrimental to
the Security of Pakistan.
 The above named persons were directed to be detained in any jail

located within the territorial jurisdiction of Province of the
Punjab initially for a period of three months.
Brief Facts
 The grounds of detention were duly

served on the detenues who filed representations against the
detention order before the Federal Government which were
yet to be decided. Mr. Amatul Jalil Khawaja wife of
AhmadJavaid Khawaja (Respondent No. 1) preferred a
Constitutional petition under Article 199 (1) (b) (i) of the Constitution
of Islamic Republic of Pakistan 1973 assailing the said order
which has been partly accepted to the extent of
Dr. Umar Karar Khawaja,
Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja
while dismissed qua Dr. Khawaja Ahmed Javed and Kh.
Ahmed Naveed.
 Federation preferred appeal against the judgment of HC.
 Pivotal issue/ question
54
 Whether sufficient incriminating material justifying the detention of
respondents under Section 3(l)(b) of the Security of Pakistan Act, 1952 was
available which could not be appreciated in its true perspective by the
learned Single Judge who erred in substituting his own opinion to that of
Federal Government by misconstruing the provisions of Section 3 of the
Security of Pakistan Act, 1952 and misinterpreting the word "satisfaction" as
used therein which resulted in serious miscarriage of justice.
 Court held that that satisfaction can only be based on some evidence or
record justifying the detention order which is badly lacking in this case. The
learned Deputy Attorney General has stated that sufficient evidence has
been collected but nobody knows where is that evidence, what is the nature
of sensitivity and why it could not be brought before the learned
Single Judge in chambers. The contention of learned Deputy Attorney
General that the said material could only be shown to Review Board is not
understandable for the reason that if it could be shown to the Review Board
how it could be withheld from the High Court.
 In the light of what has been stated herein above we are of the considered
opinion that the conclusion as arrived at by the learned High Court being
well based does not warrant interference and the detention order could not
be justified on the basis of material made available to the learned Single
Judge. The petition being meritless is dismissed and leave declined.
 Ratio Decidendi
 It is not the satisfaction of only detaining authority but judicial conscious is

also
required to be satisfied that satisfaction of detaining authority should have
been based on actual and real facts and not on mere suspicion, doubt or
conjectural presumptions. Even the subjective satisfaction does not mean
satisfaction of the authority without any base-No doubt that the words
"satisfaction" has been used in Section 3 of the Security of Pakistan Act,
1952 but the powers conferred upon the High Court by the Constitution
under Article 199 cannot be limited or taken away by a sub- Constitutional
legislation and therefore, a balance is to be maintained between the powers
conferred upon the High Court by the Constitution and the relevant
provisions of sub-Constitutional legislation-It is for the High Court to
consider as to whether there were grounds upon which any reasonable
person could have been satisfied as to the necessity of detention.
 Art 10-A. The Right to Fair Trial
 ‘Fair Trial’ and ‘Due Process’ as defined by Black’s Law Dictionary:
 Fair Trial__ “a trial by an impartial and disinterested tribunal in accordance

with the regular procedure; esp., a criminal trial in which the defendant’s
constitutional and legal rights are respected.”
55
 Due Process__ “The conduct of legal proceedings according to established
rules and principles for the protection and enforcement of private rights,
including notice and the right to fair hearing before a tribunal with the power
to decide the case.”
Hamdi v. Rumsfeld
542 U.S. 507 (2004)
Facts
 Congress passed a resolution authorizing the President to "use

all necessary and appropriate force" against terrorists or those who
harbored terrorists.
 Government detained Yaser Hamdi for allegedly fighting with

the Taliban during the Afghanistan war.
 Hamdi was born an American citizen, moved to Saudi Arabia

as a child, and eventually to Afghanistan.
 Hamdi was transported to Guantanamo Bay, then, upon learning

of his American citizenship, transferred him to the U.S.
 Govt claims that he is an enemy combatant, and therefore the govt

can hold him indefinitely.
Issues
 Does the executive have the authority to detain citizens who qualify as
"enemy combatants"?
 What process is constitutionally due to a citizen who disputes his

enemy-combatant status?
Court held that a citizen detainee seeking to challenge enemy combatant status
must receive notice of the factual basis for his classification and a fair
opportunity to rebut the gov't's factual assertions before a neutral decision
maker. However, the proceedings may be tailored to alleviate burden on
Executive. For example, hearsay could be allowed and there could be a
(rebuttable) presumption in favor of the government.
 State of war is not a blank check when it comes to the right of

citizens.
 When individual liberties are at stake, the Constitution plays a role
 A citizen detained as an enemy combatant is entitled to due process
 Art 11. Slavery, Forced labour, etc prohibited
 Non-payment of salary amounts to slavery and forced labour
56
 Under the Constitution it was the bounden duty of those for whose benefit
services were rendered, to pay emolument due, for otherwise it would
amount to slavery and force labour which was prohibited by the
Constitution.
 1997 PLC (C.S.) 662
 Human trafficking
 Petitioner, a lady, apprehended her sale by her father for a consideration of

Rs. 100,000 who was indebted to a Zamindar and she having married to a
minor wanted to approach the Family Court for getting her unlawful
marriage dissolved. However, petitioner apprehended her abduction by her
father in collusion with the influential persons of the area and certain police
officers and approached HC for protection and seeking necessary restraint
orders. HC held Constitution prohibited slavery and trafficking in human
being, thus ordered for providing her protection and safe passage to the
concerned Family Court.
 (PLD 1997 Kar 309)
 Art 12. Protection against retrospective punishment
 Generally Legislature has the power to make all laws, including the laws
having retrospective effects. However, when (mostly in case of written
constitution) its powers are subject to the constitutional restrictions then it
has to exercise its powers within those restrictions. One such restriction is
contained Art 12, that is, the legislature cannot punish by retrospective
legislation an act (except High Treason) that was not an offence at the time it
was done or prescribe retrospective for the offence a greater or a different
penalty than was prescribed for it at the time it was committed.
 Different punishment if lesser?
 On the plain words of the Article, the change of one kind of punishment by
another would be invalid because the article used disjunctively the
expressions of “greater than” and “of kind different from.” The new
punishment may be lesser than the original, but if it is of different kind, the
accused may object to it.
 (PLD 1997 Lah 285 (f))
 Accused being known Quadianis while submitting form ‘A’ for obtaining
NIC had allegedly professed his religion in the relevant column to be Islam.
Said form ‘A’ had been filled and submitted by the accused in the
Registration Office on 28/08/1982 whereas professing Islam as their religion
by Ahmadies or Quadianis was made an offence through the promulgation
of Ordinance XX of 1984 w.e.f. 16/04.1984. Evidence recorded by the
accused (petitioner) openly claimed to be Ahamdies and never professed
their religion as Islam particularly after the promulgation of Ordinance XX
of 1984 and even in form ‘B’ concerning the registration of his children
57
subsequent to the promulgation of the said Ordinance he entered their
religion in the relevant column as Ahamdi. Involvement of the accused in the
case, thus, was in utter disregard of Art 12(1)(a) of the Constitution.
Proceedings in progress in the trial court being as absolute abuse of the
process of law and process of court were quashed.
 Mian MUHAMMAD NAWAZ SHARIF and others---Appellants

versus
THE STATE and others---Respondents
(P L D 2002 Karachi 152)
 Section 402-A, 402-B, and 402-C of PPC were added to the schedule to the
Anti-Terrorism Act, 1997, on 02/12/1999. The present incident took place
on 12/10/1999. The said sections did not exist in the schedule to ATA, 1997,
consequently within the meaning of section 6(b) of ATA, 1997, offences
under section 402-A, 402-B, and 402-C of PPC were not schedule offences
on the day on which the incident took place but they became triable by
virtue of section 38 of ATA, 1997. Provisions of section 38 provide in
express terms that a person so tried shall be liable to punishment as
authorized by law at the time the offence was committed. Punishment of the
accused, in circumstances, would only be for the offence of hijacking as
provided on the day on which the offence took place. Sentences to the
accused therefore, could be awarded only for hijacking under section 402-B,
PPC and punishment for hijacking as provided under section 7(ii), ATA,
1997 could not be provided.
 Does Art 12 cover the civil liberties?
 Art 12 of the Constitution deals with punishments of offences and not with
civil liberties. Law contained in section 8 of the Political Parties Act, 1962
deals merely with the creation of a bar or disqualification for being or being
elected member of provincial and national assembly. Parliament being
authorized under the Constitution to enact law laying down disqualifications
for being elected and being member of parliament as well as to enact laws
regarding election to such assemblies. Amending such laws is within the
legislative competence of the legislature and not in contravention of art 12
of the Constitution.
 (PLD 1976 Lah 1504)
FUNDAMENTAL RIGHTS
Art. 13 to Art. 20
Art 13 Protection against double punishment and self-incrimination
The article raises to a Constitutional status the principles contained in
(a) Section 403 of Cr.P.C. (autreofois convict and autreofois acquit) known as
protection against double jeopardy, and
(b) a part of section 132 the Evidence Act, 1972
58
Protection against double jeopardy
Sec. 403 of Cr.P.C. provides that a person who has once been tried by a
competent court for an offence and convicted or acquitted of such offence, shall
while such conviction or acquittal remains in force, not be liable to be tried
again for the same offence nor on the same facts for any other offence for which
a different charge from the one made against him might have been made under
section 236 or for which he might have been convicted under section 237. This
is also known as rule against double jeopardy.
The principle also exists, in modified form, in section 26 of the General Clauses
Act, 1897 which provides that where an act or omission constitutes an offence
under two or more enactments, then the offender shall be liable to be prosecuted
and punished under either or anyone of those enactments but shall not be liable
to be punished twice for the same offence.
Double jeopardy
Same Offence. The important words in the Article are “the same offence.” The
article does not, therefore, bar subsequent trial for a ‘distinct’ or ‘different’ or
‘other’ offence as described in sub-sections (2) and (3) of section 403 of Cr.P.C.
Working men forcibly entering office of Manager of Mills insulting, beating,

wrongfully restraining and confining him and forcing him to write an order.
Police Challaned accused workmen under section 142, 323, 341, 342 and 504,
PPC but charges later on withdrawn by the Govt. Manager of Mills meanwhile
lodged complaint before National Industrial Relations Commission in respect of
the same incident for an offence under section 161() read with sec. 53 of
Industrial Relations Ordinance. Workmen were convicted there for. Ingredients
of offence under PPC for which accused workmen were charged and
prosecuted, held, materially different from ingredients constituting offence for
which they were prosecuted and convicted by the Commission. Mere fact that
two prosecutions arose out of the same incident or some facts therein were
common makes no difference. Prosecution and conviction of the accused
workmen by the Commission, held, not violative of Art 13(a) of the
Constitution. (PLD 1977 Kar. 145)
Double jeopardy
Two enquiries respecting same matter pending against petitioner, one being
departmental with Consolidation Officer and other with Anti-Corruption
Department respecting his criminal liability could go side by side. Petitioner
relying on art 13 of the Constitution and sec 403 of Cr.P.C. contended that since
another enquiry was already pending against him respecting same matter before
Consolidation Officer, same could not be probed into by the Anti-Corruption
Department. The contention was repelled on the ground that protection against
double punishment would come into play if accused had already been
prosecuted or punished. Provisions of sec. 403, Cr.P.C. would only be attracted
if the accused had been tried by a court of competent jurisdiction for an offence
and had been convicted or acquitted.
59
(PLD 1968. Lah 876, PLD 1885 SC 134)
Double jeopardy
Word ‘prosecution’ includes commencing, conducting, and carrying a suit to

conclusion in Court of Justice. Fresh prosecution for the same offence barred
only when prosecution finally concluded and ended either in acquittal or
conviction. Petitioner in first instance tried by Military Court, later on lifting
martial law case tried by a Magistrate and lastly ordered to be transferred to
Session Court. Prosecution in none of such forums pursued to end. Petitioner’s
trial, held, in no way abrogratory to principles autreofois convict and autreofois
acquit or violative of the art 13 of the Constitution.
(PLD 1977 SC 657)
Double jeopardy
Some hardcore criminals escaped from the custody of two police constables.
They were charged under section 223/224 PPC besides this, departmental
enquiry was also initiated against them. In addition a judicial enquiry was also
ordered against the constables.
They challenged the departmental and judicial enquiries against them

contending that a criminal case against them is pending, therefore, these
enquiries should be stayed till the final adjudication of the criminal case.
Court held that departmental enquiry cannot be connected with criminal case
which is altogether independent proceeding. Slackness on the part of petitioners
could be dealt with under Efficiency and Discipline Rules…. If they feel
aggrieved by show cause notice served on them, they have remedy to assail the
said notice before the appropriate departmental authority. Judicial enquiry
which is being conducted against the petitioners on executive side was also
altogether independent proceeding and it cannot be said to be a case of double
jeopardy against the petitioners.
(PLD 1998 Lah. 211)
Self-incrimination
The rule against self-incrimination as stated in section 132 of Evidence Act, is

that “A witness shall not be excused from answering any question as to any
matter relevant to the matter in issue in any suit or in any civil or criminal
proceeding, upon the ground that the answer to such question will incriminate,
or may tend directly or indirectly to incriminate, such witness, or that it will
expose, or tend directly or indirectly to expose, such witness to a penalty or
forfeiture of any kind:
Proviso.
Provided that no such answer, which a witness shall be compelled to give, shall
subject him to any arrest or prosecution, or be proved against him in any
60
criminal proceeding, except a prosecution for giving false evidence by such
answer.”
The same rule has been adopted in article 15 of Quanoon-e-Shahadat

Ordinance, 1984.
Self incrimination
Protection from self-incrimination. Prohibition contained in art 13 (b) would

attach only to incriminating material otherwise than through compulsion. Such
protection could be claimed as well as waived by the accused.
Art 13 (b) by its own force excludes:
(i) voluntary presentation of incriminating material,
(ii) production of non-incriminating material which may advance investigation

or even exonerate accuse, and
(iii) production of incriminating material otherwise than through compulsion.
Art. 14 Inviolability of dignity of man, etc
Inviolability of dignity of man is absolute
Inviolability of Privacy of home is qualified, subject to law it can be violated.
Protection against torture
Dignity of man
‘Human dignity’ means the status of human beings entitling them to respect, a
status which is first and to be taken for granted. (Mette Lebech, Faculty of
Philosophy, National University of Ireland, Maynooth).
The idea that it is improper to degrade another human being comes from the
current of thought often described as ‘dignitarian’, and best represented by the
first article of the German Constitution, which states: ‘The Dignity of Man shall
be inviolable. To respect and protect it shall be the duty of all state authority.’
This approach has been widely adopted in the transition democracies including
Pakistan.
Dignity of man
Since inviolability of dignity of man is absolute, therefore, any law that violates
the dignity of man will be unconstitutional.
What is dignity of man? What is human dignity and what violates it is a

question of fact to be determined in accordance with the view of contemporary
society. For example, hanging to death, public whipping, etc could be
considered as cruel, inhuman and violative of the dignity of man in west but in
Islamic societies these punishment are valid and not cruel or inhuman. Human
61
dignity led to the decision that life prison sentences without even the hope of
parole were unconstitutional, just as the idea led the Hungarian Constitutional
Court to the judgment that the death penalty itself was unconstitutional.
Privacy of home
Privacy of home is subject to law, therefore, if law permits an official to enter a

house as for example, for making an arrest, there would be no violation of the
article.
Plaintiff aggrieved by or apprehensive of violation of rights of easement and

privacy on account of unauthorized construction by the defendant was given
stay order against the said construction.
(1989 CLC 193)
Violation of dignity of man and privacy of home
Female charged to be prostitute or to keep or manage brothel under Hudood

Ordinance, 1979. Prosecution case solely relied on spy information which could
not be substantiated at trail; no body from the local resident came forward to
support the prosecution. No money was recovered from the personal search of
the female accused or the male accused at time of their arrest not a warrant from
Ilaqa Magistrate was obtained. Court held dignity of man and privacy of home
were violated by investigation officer. (2001 PCr. LJ 1243)
Confession obtained through torture.
Accused not only pressurized mentally and physically but police also
hypnotizing and luring accused into subscribing confession as much as he was
put into cells of a fort which though notified as a sub-jail which was thickly
dark and dingy, depicting ghastly picture of grave. None could maintain balance
of mind, confession made in such circumstances was held not to be voluntary
and violative of art 14(2). (PLD 1978 Pesh 38)
Art. 15 Freedom of movement, etc
Right to remain in Pakistan is absolute
Right to enter, move freely and settle in any part of Pakistan is subject to
reasonable restriction imposed by law.
The main, if not the sole purpose behind the safeguard in this article is to
remove all territorial barriers within the country for citizens of Pakistan. It is
designed to be a check against provincialism, regional discrimination and all
parochial considerations. Subject to reasonable restriction imposed by law in
the public interest, a citizen is free to move about, settle and reside in any part
of Pakistan.
Petitioner, a professor was selected and allowed to participate in a conference

abroad; was given NOC by the university to participate in the said conference.
62
On returned was asked by the university to produce her passport, she declined.
When pressurized, she filed a writ petition.
Court held, passport was a document which was issued to every citizen as a
matter of his right to enjoy freedom of movement. Except when under the
relevant rules passport was necessary to be shown as entry or exit to and from a
country or unless it was required under the law for investigation of crime or any
other purpose specified by law, a citizen was entitled to keep same with him as
personal property. Petitioner could not be forced to hand over her passport to
the authorities especially when authorities were not armed with any provisions
of statutory rules or law under which they could inspect the passport of the
petitioner. (PLD 1996 Kar 446)
Refusal of passport
Citizen’s right to travel abroad is an essential aspect of liberty. Before a person

is finally refused grant of passport on certain grounds based on materials in
possession of relevant authorities, has to be given opportunity of hearing. When
the petitioner is refused grant of passport without providing him an opportunity
of hearing, the order of refusing issuance of passport to the petitioner is illegal
and violative of the Constitution. (PLD 1978 SC 504, PLD 1981 Kar 98)
Placing name on ECL.
Petitioner was alleged to be a member of a Liberation Front. His name was

placed on ECL on the ground that he obtained passport. No material was
recorded to show that he was involved in a criminal case and was trying to
escape a criminal liability.
Govt can prohibit citizens under sec 2 of Exit From Pakistan (Control)
Ordinance, 1981 from proceeding abroad. Such powers are wide enough
whereby it would not be necessary for Govt to afford an opportunity of show
cause against such order and to specify grounds on which the order was made.
Such powers, however, should not be exercised wildly, arbitrarily or
capriciously, but should be exercised in accordance with constitution. Such
powers are to be examined with great caution and care and judicious
application of mind. Mere apprehensions that a citizen could be involved in a
criminal case, was not sufficient to place his name on ECL and deprive him
from his fundamental right of liberty.
(PLD 1977 Lah 657, 1998 MLD 490)
Right of citizen to travel abroad is a fundamental right guaranteed by

constitution of Pakistan, abridgement of such right by State through legislative
measures has to be tested on touchstone of the Constitutional provisions.
Section 2 Exit From Pakistan (Control) Ordinance, 1981 failing to provide any
guidelines or reasonable classification for taking action against a person and
prohibiting him from travelling abroad and denying him valuable right of being
heard and of knowing the reasons of such action, was ex facie discriminatory
and capable of being administered in a discriminatory manner. Since no
63
reasons are assigned to aggrieved person, the remedy of review under sec. 3 of
the Ordinance by making representation becomes redundant. Validity of the
Ordinance cannot therefore sustain on the touchstone of constitutional
provisions.
Reasonable restriction:
The state has the power to impose reasonable restrictions on the right of
freedom of free movement of a citizen where such restriction is necessary in the
interest of general public. Thus the law restricting the movement of prostitutes
in a part of town, (PLD 1958 Lah 929, PLR 1959 (1) W.P.) or restriction of
person, under Goonda Act, are reasonable restrictions.
The question whether a law imposes reasonable restrictions on the freedom of

movement and residence of a person is justiciable, and in determining this
question the court has to look at the nature and extent of the restriction, the
manner in which it is imposed, the nature of right alleged to have been infringed
and the underlying purpose of the restriction imposed.
(PLD 1958 SC (Pask 41), PLD 1957 Lah 676)
Art. 16 Freedom of assembly
To claim the protection of article 16, the assembly must fulfill two
qualifications:
 Assembly members must not wear arms
 Assembly must be for peaceful purpose
The fundamental right to assembly can be restricted by laws which have their
object the maintenance of public order. The restriction imposed must be
reasonable and it is for the Court to decide in each case that whether the
restriction is reasonable or otherwise. The Court will have to take into
consideration the conditions prevailing at the time, the nature, extent and the
duration of restriction, and all the surrounding circumstances.
(PLD 1975 Lah 213, PLD 1965 Lah 642).
For example, freedom of assembly may be restricted to a greater extent in

times of emergency than in normal times.
Assembly must be peaceful
It is not the fundamental right of a citizen to carry arms to an assembly even if

he holds a license for their possession, or to join an assembly the object of
which is not peaceful. Therefore section 141 and 153 of PPC which provides
for punishment of members of an unlawful assembly, or sections 124-132 of Cr.
P.C. which authorize the use of force to disperse an unlawful assembly cannot
be said to be violating the fundamental right of assembly. Similarly, powers of
district administration under sec. 144 of Cr. P.C. are not unconstitutional, if
used in good faith and for the protection of public interest.
64
Public Order: Public order is not defined anywhere, but danger to property,
human life and safety and disturbance of public tranquility (as used in sec. 144
of Cr.P.C.) fall within the purview of reasonable restriction imposed by law in
the interest of ‘public order.’ (PLD 1957 Lah 213)
Regulating use of public places: Without abridging the right of assembly, the
Govt may reasonably and without discrimination regulate the use of places
wholly within its control by requiring permits for public assemblies in the street
or parks; but any requirement of permit would violate the constitution where
absolute discretion is vested in a public official deny a permit.
Art.17 Freedom of association
 Every citizen has the right to form association or union subject to reasonable
restriction imposed by law in the interest of sovereignty or integrity of
Pakistan, public order of morality
 Every citizen, except those who are in the service of Pakistan, have the
right to form or become a member of any political party subject to
reasonable restriction imposed by law in the interest of sovereignty and
integrity of Pakistan. Such law shall provide that where a political party is
operating prejudicially to the sovereignty or integrity of Pakistan, the federal
govt may make a declaration to that effect. If such declaration is made, then
within fifteen days the federal govt shall refer the matter to Supreme Court
and whose decision shall be final on such reference.
 Every political party shall account for the sources of its funds in
accordance with law.
Sub-clause (1) does not mention public servant. Therefore, public servants are
not prohibited from making an association or union. But they are prohibited
from making a political party as sub-clause (2) clearly mentions them.
Reason/need of union
Alone we beg, together we demand.
Alone I cry, together we shout.
What a person may do alone, he may do it better with assistance and

cooperation of others. This is why individuals have the right to organize
themselves into union and parties to advance causes and circulate their views. It
is only when they combine for illegal purposes, that the law prohibit their
associations. It is for this reason that the right to from association or political
party has been made subject to reasonable restriction imposed by law.
Trade Unions: Formation of trade union is governed by the Trade Unions Act,
1962
Political Parties: The formation of political parties in Pakistan is governed by

the Political Parties Act, 1962. Section of the Act provides that no political
party shall be formed with the object of propagating any opinion, or acting in a
65
manner prejudicial to the Islamic Ideology, or the integrity or security of
Pakistan and that no person shall from, organize, set up or convene a foreign
aided party, or in any way associated with any such party.
Art. 17 confers inherent right on citizen of country to form association or

unions subject to reasonable restrictions imposed by law……………… Order
completely banning the activities of petitioner union was wholly void being in
conflict with art. 17(1), therefore, was set aside.
(PLD 1997 SC 781)
Graduation Condition for becoming member of legislature

PAKISTAN MUSLIM LEAGUE (Q) AND OTHERS V/S
CHIEF EXECUTIVE OF ISLAMIC REPUBLIC OF PAKISTAN AND

OTHER (P L D 2002 SC 994)
It was contended that:
 condition of graduation is unreasonable and irrational in the
light of prevailing literacy rate in the country;
 tended to create an elitist class;
 curtailed the choice and consent of the governed;
 took away the right of adult franchise and universal suffrage.
Provisions of Art 8-A of Conduct of General Elections Order, 2002 be

declared violative of the Fundamental Rights as contained in art 17 and 25.
Court held that educational qualification will not only raise the level of
competence and change political culture but will also be an incentive to
education. All citizens are equal before law and are entitled to equal protection
of law but state is not prohibited to treat its citizens on the basis of reasonable
classifications. In the light of equal protection and reasonable classification as
explained above Conduct of General Elections Order, 2002 is reasonable and
not arbitrary being a step toward transformation of political culture and
applicable to all graduates.
Constitutional petition (2008)

Graduation Condition, void
Muhammad Nasir Mahmood and another … PETITIONERS
VERSUS
Federation of Pakistan through Secretary Ministry of Law, Justice and Human

Rights Division, Islamabad. … RESPONDENT
The provisions of Article 8-A of the Conduct of General Election Order, 2002
(Chief Executive’s Order No. 7 of 2002) and clause (cc) of subsection (1) of
section 99 of the Representation of the People Act, 1976, which lay down that a
66
person shall not be qualified to be elected or chosen as a member of Majlise -
Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate
possessing a bachelor degree in any discipline or any degree recognized as
equivalent by the University Grants Commission under the University Grants
Commission Act, 1974 or any other law for the time being in force are declared
to be void prospectively on account of their being inconsistent with Articles 17
and 25 of the Constitution.
Art. 18 Freedom of trade, business or profession
Every citizen of Pakistan is entitled to engage in any lawful profession and

occupation and to conduct any lawful trade or business, but the State may, by
law:
 Prescribe qualifications for the practice of a
profession, occupation, trade or business;
 Regulate any trade or profession by a licensing
system;
 Regulate any trade, commerce or industry in the
interest of free competition; and
 Assume for itself or grant to a government
controlled occupation, the monopoly, complete
or partial, of any trade, business, industry or service.
The world ‘lawful’ before the words ‘profession’ and ‘trade’ in the principal
paragraph has the import of enabling the State to completely ban a profession,
occupation, trade or business by declaring it unlawful. As unlawful means
anything forbidden by law. The legislature may forbid, by law, any profession,
occupation, trade or business which is immoral e.g. prostitution, trafficking in
women, or which is danger and injurious to public health e.g. sale of narcotics,
adulterated food, etc.
Appointment to Public Office
Appointment to public office should be through a transparent process by

advertising the posts in newspaper of wide circulation enabling all and sundry
possessing requisite qualifications to try their luck by submitting applications as
required and an independent selection committee comprising of subject
specialists was to be convened to pick up candidates strictly on merit. After
undergoing rigours of test and interviews, selected candidates have to prove
their fitness on medical grounds and it was only then the induction in service
could be termed to be clean and honorable in accordance with art 18 of the
Constitution.
(1999 Kar 472, 1991 SCMR 483)
67
Where government, statutory bodies or public authorities made initial
recruitments, both ad hoc and regular, to posts and offices without properly
advertising the vacancies and later on converted the ad hoc appointments into
regular appointments, it was held that the practice is violative of art 18 which
guarantees every citizen the freedom of profession.
(1996 SCMR 1349)
Commissioner issued order that no stamp-vendor should be allowed to work, at

any place in any court or office in the district as stamp-vendor or petition writer.
Court held that such order was of no legal effect and being inconsistent with
fundamental right to freedom of trade, business or profession as guaranteed in
art 18. (1987 CLC 1608)
Declaration of zones and restriction that sugarcane in a reserved area can only
be supplied to a particular sugar mill, does not violate art 18, as it did not affect
right any sugar cane owner to enter upon his lawful profession and to conduct
his business. (PLD 1987 Kar 225)
Art.19 Freedom of Speech, etc
‘Glory of Islam’ permits the freedom to speak in favour of or for propagating

Islam but no propaganda against Islam is permitted. If this is the meaning then
it may conflict with the provisions of art 20 which grants the right to propagate
one’s religion since the propagators of religion often compare their religion
favorably with others and in the process are apt to criticize other religion.
Freedom of Speech and freedom of Press are the same as freedom of press is
not confined to newspapers and periodicals but also embraces pamphlets,
leaflets and every sort of publication affording a vehicle of information and
opinion. Similarly, the right to speech is not to public addresses or words of
individuals but necessarily embraces every form and manner of dissemination
of ideas that best-fitted to bring such ideas and views to the attention of the
people who concerned them most.
Freedom of speech and Censorship
In USA, the chief purpose of constitutional guarantee of freedom of speech is to

prevent restraint and censorship laws. Therefore, no law can provide for
censorship or restraint on the freedom of speech. The First Amendment says
that Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances. This is the reason that US put
reservation to ICCPR and did not sign the additional protocol.
However, under our constitution the position is different. Laws providing

previous restraint or censorship would be valid provided that they are held by
the court to be reasonable restrictions imposed by law in the interest of glory of
Islam, security of Pakistan, etc.
68
Security of State: Under Security of Pakistan Act, 1952 speeches can be banned
which are likely to disturb public peace and security of State.
Friendly relations with foreign states: Propaganda for a foreign state at war with
a friendly state may fall within this exception.
Public Order: The words promoting enmity b/w classes may be punished under
sec 153-A of PPC Similarly, utterances deliberately and maliciously intended to
outrage the religious feelings of any class by insulting its religion, is punishable
under sec 295-A of PPC
An order u/sec 144 of Cr.P.C. can be validly made to prohibit speeches likely to
disturb the peace and public order.
Obscenity: Conception of decency and morality have differed not only in

different societies but also in the same society at different times. Therefore the
questions relating to such matters should be approached in the light of existing
and generally accepted notions.
The test: whether a publication has a tendency to deprave and corrupt those who
may happen to read and whose minds are open to immoral practices. (R. v.
Hicklin (1868) LR 3 QB 360.
Thanda Gosht by Saadat Hassan Manto: Obscenity Test
Contempt of Court: Contempt of Courts Act (XII of 1926). Also see art. 204
Incitement of an Offence: abetment of offence punishable under chapter iv of

PPC
Sec. 505 of PPC. Statement conducive to public mischief
Public Safety and Maintenance Order Act
Defamation: Omission of the word ‘defamation’ from art. 19 and its

substitution by words ‘commission of’ (by 4th amendment, 1975) has enlarged
the freedom of press but it does not provide a license to the Press to publish
such material which is prejudicial to the interest of any person or may cause
harm or damage to reputation, honour, and prestige of a person….Press must
take due care and caution before publishing any material, verify its correctness
from concerned quarters and keep themselves within the bounds and ambit of
provisions of art.19.
(PLD 2002 SC 515

C)
As a general rule, defamatory utterances fall not within the constitutionally

protected speech and writing. Freedom of speech and press does not establish
an exemption from the common law liability for libel and slander.
(1947 Lah 383)
Law of libel and slander (sec. 499 and 500 of PPC) are protected under art. 19
69
Art. 19-A Right to information
Freedom of speech and expression of opinion is the hallmark of democracy and

responsible governance. Government could be held responsible only through
the informed opinion. If people have the right to information of public
importance and governmental affairs only then they could have informed
opinion and hold the government responsible effectively.
Art. 20 Freedom to profess religion and to manage religious institutions
This article provides safeguard:
 to freedom of man to profess, practice and propagate any
religion and
 to establish, maintain, and manage religious institutions in
accordance with the religious belief of the denomination or
sect concerned.
But this right is subject to law, public order and morality. So long as religious
beliefs are held, professed, and practiced in private, no question of public order
can arise but when they are practiced and propagated in public, by speeches,
processions and placards, are accompanied by denunciation of other religions,
they are bound to clash with the rights of others and thus lead to breaches of
peace. It is for these considerations that practice and propagation of religion is
made subject to law.
Ahmadies/Qadianis are allowed to practice their faith and enjoy freedom under
art. 20 like any other religious minorities….however they are not allowed to
impurify Muslim faith and hijack Islam by passing off as Muslims by use of
Shaair Islam or Kalima Tayyaba which are fundamentals of Islam.
(NLR 1991 SD 763.)
Freedom to practice and propagate religion is subject to regulation for the

protection of the society. Power to regulate is to be exercised in a way that it
does not infringe the protected freedom. State while acting through its local
authority can, therefore, by general and non-discriminatory legislative order
regulating the times, places and the manner of procession while keeping in view
the required safeguards for peace and good order while also taking care that
constitutional guarantees are not invaded, regulate the practice of religion.
(PLD 1983 SC 172, 1999 CLC 855)
Petitioner contended that provincial government be directed to impose ban qua

the book ‘God’s Special Agents’ and that the respondent be restrained from
preaching the program of Christianity in Pakistan. Court held, every citizen had
the right to profess, practice and propagate his religion….petitioner failed to
point out as to how the action of respondent offend against any particular law,
public order or morality so as to exclude the protection of art 20… Benevolence
70
and tolerance is the hallmark of Islam and provisions of articles 20, 36 and
227(3) of the Constitution are the reflection thereof.
(PLD 2005 Lah 354).
FUNDAMENTAL RIGHTS
Article 21---28
Art 21. Safeguards against taxation for purposes of any other particular religion
This safeguard is only against a special tax i.e. tax levied for the promotion and
propagation of a particular religion. A person cannot be compelled to pay tax
the proceeds of which are to be spent on the propagation of a religion other than
his own. A person who belongs to the same religion for the propagation of
which the proceeds of the tax are to be spent can, therefore, be taxed.
Art 22. Safeguard as to educational institution in respect of religion
Under art 22 every religious community has a constitutional right to provide for
its members religious instructions in its religious institutions, provided that:
 the institution is wholly maintained by such community; and
 no pupil belonging to a different religion/community attending such an

institution is required to receive religious instructions or take part in any
religious ceremony or attend any religious worship relating to a religion
other than his own.
If for example, an institution is wholly maintained by Muslim Community, it

may provide religious education in Islam for its own Muslim pupils, but
Christians or Hindus who attend the institution cannot be required to receive
such education. The institution may, however, make provisions for education of
Christian and Hindus pupils in their won religion.
Safeguard as to educational institution in respect of religion
If an educational institution received aid from public revenues, it cannot refuse

admission to a student on the ground of his race, religion, caste or place of
birth.
However, public authorities are not prevented from taking provisions for the
advancement of any socially or educationally backward class of citizens.
State aided Educational institutions and State owned Institutions
It was contended that provisions of art (22) (3)(b) apply to educational

institutions receiving aid from the public revenues and do not apply to private
institutions receiving no aid from the public revenue nor to the Government
institutions which are owned, run and managed by the government.
Government institutions are by no means aided by Government; government
does not aid itself. The prospectus of the college to which petitioner seek
71
admission itself says ‘Prospectus of Government Medical Colleges in Punjab’.
Therefore, the apron the article 22 (3) (b) under which the respondents seek to
hide is not available to them.
(Mussarat Uzma Usmani v. Government of Punjab PLD 1987 Lah 178)
No distinction b/s state aided and state owned institutions
The words ‘educational institutions’ employed in art 22 (3) (b) are plain, free
from ambiguity and have been used to convey their ordinary sense and
according to common meaning in English Language, without recognizing the
distinction between ‘State owned’ and ‘State aided’ institutions. It is well
settled rule of construction of statutes and of Constitutional instruments too,
that unless the words in an enactment are applied to a particular science, they
are to be interpreted as understood in common language and in their popular
sense…..Likewise the expression ‘receiving aid from the public revenue’,
figuring in art 22(3) (b), is not alive to the distinction between the educational
institution wholly run by the State and private institutions receiving aid from
the State….the words ‘receiving aid from the public revenue’ have been used in
comprehensive sense and cover all those institutions which are maintained and
run out of the finances doled out from the public revenue, irrespective of their
ownership.
(Naila Begum v. Government of Punjab PLD 1987 Lah 336)
Word ‘only’ occurring in the art 22
Word ‘only’ in the article cannot be ignored and plays an important role….
Discrimination to fall within the mischief of art 22 (3) (b), should be on the
ground of race, caste, religion of place of birth alone. In matter of admission to
educational institutions, grounds, other than those stated in art 22 cannot be
taken into consideration and there is no deprivation of fundamental rights, if
admission is denied for the reasons extraneous to art 22 or the ground of race,
caste, religion or place of birth, coupled with some other grounds.
(PLD 1987 Lah 336)
Art 22 (3) has to be interpreted without the limitation inherent in art 25 (2).
It was held in construing the Constitution, or any other statutory instrument,

Court has to take not only particular part by itself, but look to the whole of it,
giving effect to all parts and take efforts to reconcile inconsistency therein, if
any. As a rule two provisions must be read together in a manner which
harmonizes them and gives effect to both the provisions. A comparison of the
language of art 22(3)(b) with that of 25(2) reveals that the later protects all
citizen against discrimination on the ground of sex while the former gives
protects all citizens against a particular species of wrong namely, denial of
admission into certain types of educational institutions on the ground of race,
caste, religion and place of birth…..word ‘sex’ has been deliberately omitted
from art 22(3)(b), there is no reason to read therein the word which the framers
72
of the constitution did not choose to incorporate…..Therefore the art 22(3)(b)
has to be interpreted without the limitation inherent in art 25(2).
Court further held that the government of Punjab could discriminate in

admissions to medical school with respect to sex when coupled with other
admission considerations. It rejected the argument that such discrimination was
prohibited by Article 25(2) of the Pakistan Constitution, which protects all
citizens from discrimination on the ground of sex. It found that Article 25(2)
was a general provision, which must give way before the special provision of
Article 22(3)(b) of the Constitution, which prohibits restrictions on admission to
educational institutions with respect only to race, religion, caste, or place of
birth.
(PLD 1987 Lah 336)
Taking steps for backwards/discrimination
Because of uneven economic development and lack of appropriate educational

facilities in certain parts of country, residents of those areas came to be so
handicapped that they were unable to compete with their more fortunate
counterparts in the developed areas on the basis of straight and open
competition. Relatively poorer performances of such candidates in examination
did not reflect an inherent lack of intelligence or capabilities, but reflected only
absence of facilities available to them, which could harass their talents. To
attain objective of genuine equality of opportunities rather than mere nominal
equality in accordance with the true spirit of Islam, Constitution makers
stipulated enabling provisions to undertake affirmative action for benefit of
under-privileged people. While art 22(3) of the Constitution has forbidden
discrimination in admission to State-aided educational institutions on ground of
race, caste, religion or place of birth, clause (4) of the said article has enabled
public authority to make provisions for advancement of any socially or
educationally backward class of citizen. (2001 SCMR 1161, 2003 PLC
(C.S.) 304 (c))
Art 23. Provision as to property
Property: Property, as a legal concept, is the sum of bundle of rights over thing
as well as the thing itself. But the word property is of very wide import and
including tangible and intangible property. It includes not only real and
personal property but also incorporeal rights such as patents, copy rights, lease,
etc and everything of exchangeable value which a person may have. A decree of
court is, therefore, a property. (AIR 1951 Hyd 1) But a piece of property which
is illegal to hold is not property under this article. (PLD 1958 Lah 706)
This article while guaranteeing the right of property does not guarantee that the
concept of property shall ever remain the same. What is today regarded as
legitimate object of property may cease to be so regarded tomorrow.
(AIR 1958 Nag 58)
Restriction must be reasonable
73
Restrictions on legislature’s powers and actions taken thereunder are laid down
in the constitution itself. Right to acquire, hold and dispose of property can be
regulated only through reasonable restrictions imposed by law in the public
interest. Both validity of law and action take thereunder become justiciable
from standpoint of reasonableness as well as public interest. If restriction to
acquire, hold and dispose of property imposed by law is found reasonable.
Court will uphold the same. (2003 CLD 1797 (q))
Rent Restriction Ordinance, 1959
Parties during pendency of constitutional petition before HC effected a

compromise whereby tenants were to vacate premises and landlord after
reconstruction was required to hand over possession of shop to tenants within
specified period of time. Landlord after reconstruction of shop did not deliver
possession to tenants but rented out the said shop to a stranger. Tenant’s
application for delivery of possession was accepted by Rent Controller.
Appellate forum and HC maintained order of Rent Controller for delivery of
possession to tenant. Landlord’s assertion that that provisions of section 13 (5-
B), Rent Restriction Ordinance, 1959 being inconsistent with the rights
conferred by art. 23 of the Constitution were not raised before the Rent
Controller, the appellate forum and the HC.
Even otherwise the provisions of sec 13 (5-B) did not appear to be violative of
the Constitutional provisions. Record indicated that rent deed in favour of third
person was executed by landlord on specified date which would show that even
before the completion of reconstruction landlord had decided not to deliver
possession of shop to tenant in terms of compromise and under orders of HC.
Landlord had undertaken to restore possession of shop to tenant after
reconstruction; therefore, he could not be allowed to resile from terms of
compromise on basis whereof he had obtained possession of premises in
question, from tenants. Orders passed by HC, also by appellate forum, being
just and fair. Leave to appeal refused.
(1997 SCMR 517)
Rent Restriction laws and laws governing the relationship of landlord and
tenant in urban areas are infringements of the provisions of this article being the
restriction on the right to hold property. But the restriction being reasonable and
in public interest do not so offend against this provision as to make the law ultra
vires and void.
(AIR 1952 All 703 (FB))
Freezing Bank account
Bank accounts of a trust were frozen at the directions of State Bank of Pakistan
on alleged complicity of trust in terrorist activities. No action against petitioner
or his co-trustee had been taken under the Anti-Terrorism Act, 1997. In the
presence of such special law dealing with suppression of terrorism and
conferring power to freeze accounts reasonably suspected of being used for
74
terrorist activities, resort to general provisions to issue any direction to
banking company in public interest would be entirely unwarranted. When resort
to general law would deprive affected party of right to seek review or appeal to
High Court, then such action would be treated as mala fide in law……No
material of alleged suspicion of financing terrorist activities had been conveyed
nor petitioner had been afforded an opportunity to confront the same. Such
directions under sec 41 of Banking Companies Ordinance, 1962 could not
withstand test of reasonableness contemplated by art 23 and could not be
sustained on touchstone of art 24 as no compensation for deprivation of use of
property had been offered to the trust…. Such direction could not be upheld on
the yardstick of art 23 as right to use or dispose of property has not been
subjected to reasonable restriction imposed by law in the public interest.
Impugned order has been issued beyond purview of lawful powers of State Bank
of Pakistan.
(PLD 1999 SC 1026,

2002 CLD 102)
Right is subject to law, not uncontrolled right
Development authority refused mutation of plot to petitioner on the ground that

it was allotted for residential purpose but the petitioner used it for commercial
purposes (Marriage Hall).
Petitioner contended that refusal to mutate amounts to violation of art 23.

Court held, Right to own or dispose of property under art 23 is subject to law
and not an uncontrolled or unregulated right. Petitioner committed breach of
terms of lease by putting residential plot to commercial purposes and the
Authority as a lessor was at liberty to take action against the said breach.
(PLD 1975 Kar 313 ref. 1989 MLD 4422)
Art 24. Protection of property rights
Person: person includes citizens and foreigners whether natural or artificial i.e.
corporations
(AIR 1961 SC 954)
Before the State can deprive a person of his property, it has first to arm itself
with a law. Even where the law authorizes the Executive to deprive a person of
his property under certain circumstances Executive is bound to follow strictly
the procedure which is laid down by the law for acquiring of the property.
Where a person is deprived of his property under the authority of law and
according to provisions of law, he has no ground for complaint under the
Constitution.
Acquisition of land: Private lands are acquired under the provisions of Land
Acquisition Act, 1894 for public purpose without the consent of the owner and
the paramount consideration behind the scheme appears to be the welfare of the
people at large. Object behind the legislative dispensation is not to deprive the
75
land owners of their constitutional rights to acquire, hold and dispose of
property.
Public purpose: The question whether property is being acquired for public
purpose is a justiciable issue and it is for the court to decide whether the
acquisition is for a purpose which may properly held to be a public purpose or
not. Because if the real purpose of the acquisition be not a public purpose, the
acquisition will be invalid.
(PLD 1958 Dacca 280)
There can be no exhaustive definition of ‘public purpose’ and the answer to

question whether a purpose is public or not, will defend on the object to be
achieved by the acquisition and the place that object occupies in the current
policy of ideology of State. If the acquisition is in the general interest of the
community and not intended to promote private interests of a particular
individual or set of individuals, it will be treated to be for a public purpose.
(PLD 1959 Dacca 115, AIR 1952 SC 252)
Public purpose has precedence over individual rights
Petitioners who were occupants of shops and houses adjacent to area sought to
be acquired for construction of flyover, had challenged the construction and
contended that they being lessees of Cantonment Board for ninety years through
agreement, were entitled to easement rights and said rights could not be
interfered with through construction of flyover which would be violative of the
constitutional provisions. Authority had not only examined project from
economic angle but also had taken into consideration its environmental
aspect…. If a project or scheme was actuated by laudable consideration of
public welfare, if the same led to general convenience of public, if it engendered
commercial activities to the benefit of public at large and if its environmental
impact was considered to be positive then such project must have precedence
over individual rights.
(PLD 1969 SC 223, 1992 MLD 2259, etc)
Refusal to issue duplicate saving certificates
Investor who was predecessor-in-interest of the petitioner, purchases Special

Saving Certificates (bearer) but same were robbed and the investor immediately
informed the concerned National Saving Authorities about the robbery and a
criminal case was registered in that respect.
Investor requested the authorities that the robbed certificates be cancelled and
fresh/duplicate certificates be issued to her. But her request was turned down in
view of Rule 14 (3) of Special Saving Certificate Rules, 1990 which forbidden
the issuance of duplicate certificates.
76
SSCR, 1990 had not been framed under any statutory authority and could be
treated as mere administrative instructions. Though investor could not be
entitled to duplicate certificates she was well within her right to claim the
return of investment made by her with profits, particularly when the robbed
certificates had not been encashed by anyone. Authorities had not sustained any
pecuniary loss as they were holding investment made by investor which was in
the nature of trust with them. Authorities were bound to refund the amount of
investment with profits earned thereon….Successor-in-interest could not be
deprived of their property in view of guarantees enshrined in art 23 and 24 of
the Constitution. (2003 CLC 362 (a))
Payment of duty which is exempted
Petitioners paid excise duty without the knowledge that the same has been
exempted under a notification; later on they claimed the refund of the same.
Plea of refund was rejected on the ground of limitation (time bar). Withholding
of citizen’s money by public functionary on the plea of limitation or any other
technical plea if it was not legally payable by him was depreciated. Supreme
Court remanded the case to Collector of Customs with directions to examine, as
to whether the importers (petitioners) had fulfilled the conditions laid down in
the notification in order to avail exemption. If they had fulfilled the conditions,
the denial of refund of the amount involved would be violative of art 24 (1) of
the Constitution. (PLD 1998 SC 64)
Exceptions
The rule governing acquisition or taking possession of property only for a

public purpose and on payment of compensation does not apply to:
 (a) a law under which a person may be deprived of property with a view
to preventing danger to life, property or public health;
(e.g. sec 133 of Cr.P.C. which provides for removal of public nuisance) or
 (b) any law permitting the taking over of property which has been
acquired, or come into possession, of any person by unfair means or in
contravention of law; or ( e.g. Section 550 of Cr.P.C.)
550. Powers to Police to seize property suspected to be stolen. Any police-

officer may seize any property which may be alleged or suspected to have been
stolen, or which may be found under circumstances which create suspicion of
the commission of any offence. Such police-officer, if subordinate to the officer
in charge of a police-station, shall forthwith report the seizure to that officer.
(Anti-Terrorism Act, 1997 Sec. 11. Power to forfeiture of materials used in

terrorism, 11-O. Seizure and detention)
Exceptions
 (c) any law relating to acquisition, administration or disposal of property

which is deemed to be enemy or evacuee property; or
77
 [e.g. The Enemy Property (Continuance of Emergency Provisions)
Ordinance, 1977] relating to the control of trading with enemy and control
of enemy firms, and the administration of the property belonging to them.
Example of law for Evacuee Property: Evacuee Trust Properties (Management

and Disposal) Act, 1975 (Act XIII of 175)
The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV of
1975)
 (d) to any law where the property of another person may be taken over for
the management for his benefit ( e.g. Guardian and Wards Act, 1890); or
 (e) any law providing for acquisition of property for certain purposes
 (f) any law made in pursuance of art 253 (e.g. Land Reforms Act, 1977)
 Compensation when claimable?
 Laws falling under sub-clause (e) of article 24(3) will probably be held as
species of laws falling under clause (2) because the object of the laws
mentioned in sub-clause (e) (i, ii, iii) are public purposes but clause (2) not
being applicable to cases in clause (3), it seems that compensation will not
be claimable for such acquisition as of right.
 When compensation is payable under clause (2), the adequacy or inadequacy

of it cannot be questioned in any court though the question whether the
provisions of art (24) (2) have been complied with or properly interpreted
fall within the purview of judicial review.
 Compensation must be fair
 Though the word ‘compensation’ is not preceded by the adjective ‘just’ like
the US provision, it can only mean full and fair money equivalent of the
property.
 (PLD 1965 Lah 327, PLD 1957 SC (Pak) 9))
 Therefore, a law will be unconstitutional if it does not provide for

compensation in this sense, or its provisions relating to acquisition are
wholly piratical, confiscatory or illusive. A law in such case will be invalid
on the ground that principle adopted by it for determining compensation is
not a principle of compensation at all.
 (AIR 1952 SC 252, AIR 1957 All 297)
 Art 25. Equality of citizens
 Equality before law: According to Black’s Law Dictionary:
 The status of condition of being treated fairly according to regularly

established norms of justice…..the notion that all persons are subject to
ordinary law of the land administered by the ordinary law courts, that
78
officials and others are not exempt from the general duty of obedience to law
and that discretionary governmental powers must not be abused….
 A number of distinct meanings are normally given to the provision that there
should be equality before law. One meaning equality before law only
connotes the equal subjection of all to a common system of law…. another
theory asserts that equality before law is basically a procedural concept,
pertaining to the application and enforcement of laws and the operation of a
legal system.
 Equal protection of law: Equal protection of law means that the legislation
that discriminates must have a rational basis for doing so. And if the
legislation affects the fundamental right (such as right to vote, etc) or
involves a suspect classification (such as race, sex, etc), it is unconstitutional
unless it withstand strict scrutiny. Black’s Law Dictionary
 Equal protection does not require that all persons be dealt with identically,
but it does require that a distinction made have some relevance to the
purpose for which the classification is made. (Baxstrom v. Herold, 383 U.S.
107, 111, 86 S.Ct. 760, 763 (1966).
 No person can be put beyond the pale of law and no bill of outlawry can be
passed against him. In this sense protection of law of law means the
protection of law by which the citizens concerned are governed as different
classes of citizens may have different laws applicable to them. They are
entitled to protection of these laws which must not offend against the first
part of the article and make them unequal before law.
 (A.K. Brohi)
 A law that confers uncontrollable powers on public officials
 All laws imply classification, for when it applies to a set of circumstances, it

creates thereby a class, and equal protection of law means that this
classification should be reasonable. Where the law confers wide and
uncontrollable powers on an official so that he is entitled arbitrarily to
interfere with private rights guaranteed by the Constitution and law it will
be void on the ground that it enables him to discriminate at his sweet will.
 Sec 8 of the West Pakistan Maintenance of Public Order Ordinance, 1960

was held to be void for the said reason. (PLD 1965 Lah 642)
 West Bengal Criminal Law Amendment (Special Courts) Act, 1949---

constituted Special Courts to try special kinds of offences and empowered
executive to direct particular cases to be tried by Special Courts---was held
to be inconsistent with equal protection law.
(AIR 1953 SC 404)
79
 Special Courts under ATA, 1997: Special category of offences involving
elements of terrorism and sectarian violence where no choice is left to the
executive to send a case of schedule offences to any other court. To treat
terrorist acts differently than the ordinary offences to be dealt with by a
different forum is reasonable classification which does not offend the
equality before law and equal protection of law…… constitution of special
courts and special tribunal for the purpose of speedy trial of heinous crimes
cannot be invalidate on the touchstone of art 4 and 25 of the Constitution.
(1998 MLD 1411)
 Different situation, different treatment: Reasonable classification; No

violation
 Prospectus of Bolan Medical College for the year 1989-90, para 30.
Candidate’s application for admission was rejected for having got her entire
education outside the province while specified candidates having got their
education outside the province were given admission.
 Court held that mere fact that specified candidates got their education
outside the province would not make discrimination unless it was shown that
the reasons advanced by them were identical with that of aggrieved
candidate. In order to make discrimination it must be shown that the parties
were placed in the same situation but they were treated differently, which
factum was lacking in the case. (1995 SCMR 334 (c))
 Similar situation, different treatment: Not Reasonable classification;

violation
 Three Flour mills owners (petitioners) were duly included by the provincial
govt to whom quota of flour was to be issued. Nine other flour mills, of the
lists, were issued quota flour but the petitioners were not which caused the
petitioners loss of millions of rupees. Court held, where numerous other
business concerns were involved in similar business and production but
petitioners were prevented from carrying on their business while other rival
business concerns similarly circumscribed were facilitate to go into
production such conduct was discriminatory on the part of Authorities and
in violation of art 25.
 Reasonable classification
 Shirin Munir v. Government of Punjab, (PLD 1990 Supreme Court 295)

where female students applying to medical colleges in Punjab were denied
admission on the ground that seats reserved for females were filled up.
Instead, the male students, who were below in merit list than the females,
were given admission. The girls petitioned the Lahore High Court on the
basis of discrimination, which decided in their favour. On appeal Supreme
Court held that:
 No discrimination on the basis of sex alone can be permitted except on the

ground of reasonable and intelligible classification….where co-education is
80
permitted….the fixation of the number on the ground of sex will directly be
opposed to the requirement of article 25(2) unless it is justified as a
protective measure for women and children under article 25(3). In other
words the number of girl students can be fixed as the minimum but not as the
maximum
 Arbitrarily reserving a specified job for men only:

The case of Naseem Firdous (Naseem Firdous v. Punjab Small Industries
Corporation (PLD 1995 Lahore 584)) is another example where Lahore
High Court stroke down gender equality norm of article 25 in conjunction
with article 27. The petitioner was working in the Punjab Small Industries
Corporation since 1977 and reached to the post of Assistant Director
(Design). In 1983 she was prevented from applying for the post of Director
on the ground that job was for ‘male only’ applicants. Court declared the
advertisement (requiring male applicants only), which was alleged to be
justified by article 27, to be contradictory to article 25 and hence illegal.
 Art 25-A. Right to education

In accordance with provisions of international human rights law (e.g. art 26
of UDHR, art 13 of ICESCR, etc) Islamic Republic of Pakistan inserted this
article ensuing free education as fundamental right.
 Art 26. No discrimination in respect of access to public places

Art 25 envisages the general principle of equality before law while art 26
and art 27 provide for the specific application of that general principle of
equality.
 Public place: It is immaterial whether the public place belongs to the

government or a local authority or is being managed by private individual.
 Places of religious worship as are exclusively used by religious communities

for religious purposes only are not public places as are accessible to all
citizens through art 26.
 Special provisions may be made for women and children e.g. hours may be
fixed for women during which men visitors are not allowed or children are
not allowed unless accompanied by their parents.
 Art 27. Safeguards against discrimination in respect of services

Quota system: object of creating reserved seats for different
classes/segments in colleges and in employment is to give legal protection to
the people who are genuine residents of the area in order to bring them at par
with those of developed areas of the country.
 Object of the quota system is defied if the candidates are not the bona fide/
permanent residents of the area but somehow manipulate to obtain the
domicile/local certificate from such district and become eligible for reserved
seats, affecting the rights of genuine residents of the area. (PLD 2001 Quetta
72 (a))
81
 Allocation of quota of posts to MPAs, MNAs and Ministers for recruitment
is offensive to the constitution. (1993 SCMR 1287)
 Preserving quota by executive after the expiry of protection period
 Preserving quota system by executive orders, even after the expiry of

protection period available under the Constitution, amounted to amending
the constitution through circulars, policy letters, etc prescribing the quota in
service of Pakistan are ultra vires, illegal and against the injunctions of
Islam. (1997 CLC 1308)
 Reserving posts for member of either sex in the interest of service which
cannot be performed by member of other sex: for example Lady Health
Workers, female doctors, female teachers in women educational institutions.
 Art 28. Preservation of language, script and culture

Subject to art 251: Art 251 provides that national language of Pakistan is
Urdu and arrangement shall be made for its being used as official language
within fifteen years from the commencing date. In the meanwhile English
may be used for official purposes. Provincial assembly may, by law,
prescribe measure for teaching, promotion and use of provincial language, in
addition to the national language.
 Section of citizens? It can be questioned as to whether this right can be

excised by an individual as art 28 mentions ‘section of citizens’?
 Similarity b/w art 28 of the Constitution of Pakistan and art 27 of ICCPR
Why the Dream of Islamization could not be Realized? An Appraisal of the

Role of FSC and CII TAJ MUHAMMAD Abstract: Pakistan isan Islamic
Republic and Islam is the state religion of this country. In this regard, the article
227 of the constitution, on the one hand,obliges the state to make all the
existing laws of the state compatible with Islamic injunctionsand, one the other
hand, it prohibits to enact any law repugnant to these injunctions. In order to
fulfill this obligation two important institutions have been established under the
constitution i.e. the Federal Shariat Court (FSC) and the Council of Islamic
Ideology (CII) under article 203 and 228 of the constitution respectively. The
former is a court which has power tonullify any law on the ground of being
repugnant to Islamic injunctions. The latter provides recommendations to the
Parliament about Islamization of laws. Despite having these institutions, the
aspirations of the Pakistani nation to be governed completely by the Sharī'ah of
Islam could not become legal reality. This is primarily because the role of FSC
and CII had not been effective in this regard. There are various factors which
played their role in making these institutions less effective. This situation calls
for a thorough study of why these institutions could not deliver what was
expected from them and how these institutions can become more efficient in
their functions. This paper is an attempt to analyze the role of FSC and CII and
explore the reasons why these institutions could not succeed efficiently. The
paper also gives recommendations to bring improvements in these institutions
82
so that the dream of Islamization of laws can be realized according to the
aspirations of the Pakistani nation. Keywords: FSC, CII, Islamization of Laws,
Constitution of Pakistan 1. Introduction: Pakistan is by constitution an Islamic
Republic which recognizes Islam as state religion and aspires not only to make
laws that are compatible with Islamic injunctions but also to bring all the
existing laws in conformity with the injunctions of Islam as enunciated in the
Qur'ān and the Sunnah of the Holy Prophet peace and blessings be upon
him.1In order to translate these aspirations into reality, Pakistan has a system of
Islamization of laws which works in two folds. First, there is Council of Islamic
Ideology (hereinafter CII)which has been entrusted with the power to look at
the existing laws of Pakistan in the perspective of their Islamicity. The council
evaluates the laws,enforced for the  The author is PhD (Law) scholar in the
Department of Law, Faculty of Sharia and Law, International Islamic
University Islamabad. The author can be reached at tajsazini@gmail.com.
1Constitution of the Islamic Republic of Pakistan, 1973, article 227108
AHMAD HAMZA GHAZALI time being,to check their conformity with the
Islamic injunctions and suggests amendments if there isany repugnancy of the
laws with the teachings of Sharī'ah. Apart from that, the CII gives its opinion to
the parliament for the laws that are going to be enacted. The opinions of the CII
are, however, not binding on the parliament. Secondly, the Federal Shariat
Court (hereinafter FSC) has the jurisdiction to check the Islamicity of existing
laws. The FSC has the power to declare any law null and void up to the extent
of the repugnancy of the law with the injunctions of Sharī'ah. The government
of Pakistan has the option to challenge the FSC’s decision in the Shariat
Appellate Bench (hereinafter SAB) of the Supreme Court of Pakistan
(hereinafter SCP). Despite the fact the Pakistan has institutions for, and a
system of, Islamization, the dream of Islamization of Pakistani laws could not
be realized. In the following an attempt is made to analyze the factors which
make the CII and FSC inefficient in their constitutional roles and thus the
process of Islamization is not able to go at the required pace. The analysis
would be followed by the conclusions and at the end suitable recommendations
would be given to cure the discrepancies. 2. Islamization as an Obligation under
Sharī'ah Before getting into the discussion of the constitutional scheme of
Islamization in Pakistan and institution for that purpose, it is of significance to
prove that the very Islamization is required by injunctions of Islam and Qur'ān
and Sunnah demand from Muslims to makes laws that are compatible with
them. As far as Qur'ān is concerned, there are a number of verses which show
that it is obligatory on Muslims to dispose of their disputes according to the
laws revealed by Allah Almighty. Since citation of all the relevant verses from
the Qurān is beyond the scope of this paper, only three verses from Qurān are
cited here. In the Sūrah al-Mā'idah, Allah says: "Therefore, [O children of
Israel,] hold not men in awe, but stand in awe of Me; and do not barter away
My messages for a trifling gain: for they who do not judge in accordance with
what God has bestowed from on high are, indeed, deniers of the truth!2 And
they who do not judge in accordance with what God has revealed –they, thy are
the 2Qur'ān 5:44. The translation of the Qur’ānic verses in this work is, unless
83
indicated otherwise, taken from the translation of Muhammad Asad. See,
Muhammad Asad, The Message of the Qur'ān,(London: The Book Foundation,
2008)STUDYING THE CASE OF RIBA 109 evildoers!3 Let, then, the
followers of the Gospel judge in accordance with what God has revealed
therein: for they who do not judge in the light of what God has bestowed from
on high – it is they, they who are truly iniquitous!"4 Syed Abul A'lā Mawdūdī
in his interpretation of these verses says that in these verses Allah Almighty has
provided three rules for the people who do not judge in accordance with what
has been revealed by Allah. First, these people are kāfirūn i.es infidels, second,
these people are zālimūn i.e. iniquitous and third, they are fāsiqūn i.e. evildoers.
It is clear from these words that any person who ignores Allah's laws and judge s
according to manmade laws, he commits three big offences. First, this act of the
person amounts to denial of the command of Allah which is kufr. Secondly, this
act is against the justice because the ultimate justice lies in the command of
Allah and therefore, whatever is decided other than His command is injustice.
Thirdly, in spite of being His servant, when he deviates from the command of
his master he crosses the boundary of submission and that is fisq.Mawdūdī
further specifies each group of people to whom one of these rule could be
attributed. He says the people who do not believe in what was sent down to us
by Allah Almighty fall in the category of people who are kāfirūn. The persons,
who believe in the revelation and Allah's laws but they do not implement that
law in their lives; instead they apply the man-made laws, is declared to be
zālimūn. This is because the ultimate justice is what has been given by Allah
and leaving His laws aside and adopting laws made by human being is therefore
injustice and evildoing.5 Mufti Muhammad Shari' also concludes the same that
deciding matters contrary to the injunctions of Allah is in some instance kufr
when the person does not believe these injunctions to be right while in other
situations it is zulm and fisq to do so when the person believes the injunctions
Allah to be the right but he fails to act accordingly.6 One can claim, looking at
the apparent words of these verses that these verses are about the bani Israel
who are Jews and Christians as this has been held by a number of scholars of
Qur'ān 3Qur'ān 5:45 4Qur'ān 5:47 5 See, Syed Abul A'lā Mawdūdī, Tafhīmul
Qur'ān, (Lahore: Idārah Tarjumānul Qur'ā, n.d.) 1:475-76 6 See, Mufti
Muhammad Shafi', Ma'āriful Qur'ān, (Karachi: Maktaba Ma'āriful Qur'ān,
2008), 3:165110 AHMAD HAMZA GHAZALI including Abdullah b. al-
'Abbās7 in one of his opinions. But the majority of Muslim scholars are of the
opinion that these verses are as applicable to Muslims as these are for the
people of book. It is narrated that one a person said in front of Huzayfah b.
alYamān that these verses are about the children of Israel. Huzayfah abruptly
replied that: "What the good brothers of yours are banū Israel! Whatever is
bitter that is for them and whatever is sweet that is for you? No! By Allah, you
will have to follow their path step by step."8 These verses from the Qr'ān and
their interpretation prove that Muslim states are under obligation to make their
laws in accordance with the teachings of Islam. The same obligation has not
only been recognized by Pakistan in the objective resolution and constitutional
provisions, but also efforts have been made to fulfill this obligation. The FSC
84
and CII are the two institutions that are entrusted to work for this cause. 3. Role
of the Institutions for Islamization in Pakistan For the purpose of this study, two
constitutional institutions are being taken into consideration i.e. the Council of
Islamic Ideology and the Federal Shariat Court.In the following,a brief
introduction of these institutions followed by the reasons of their unsatisfactory
performances is given. 3.1. Council of Islamic Ideology The idea of an
institution to look at the laws in the perspective of injunctions of Islam was first
proposed –as Islamic Commissionby the Constitution of Pakistan, 1956. Article
198 of the said constitution made the president of Pakistan under obligation to
establish the commission within one year so that the laws that were enforced in
Pakistan could be brought in conformity with Islamic injunctions and the
commission would give recommendations to the provincial assembly and
national 7 See, Abu 'l-Tayyib Muhammad Siddīq Khān b. Hassan al-Qinnūjī,
Fath al-Bayān fī Maqāsid al-Qur'ān, (Beirut: Al-Maktabah al 'Asriyyah Li 'l-
Tabā'ah Wa 'l-Nashr, 1992), 3:428. However, in another opinion of Ibn 'Abbās
he has been quoted to have said that 'What a great nation you are! If there is
something sweet that is for you and if something is bitter that is for the people
of book." This means he also opined that these verses are for Muslims too. See,
Abdurrahmān b. Abī Bakr Jalāl al-Dīn al-Suyūti, Al-Durr al-Manthūr fī 'l-Tafsīr
bil-Ma'thūr, (Beirut: Darul Fikr, n. d.) 3:88. ‫نعم األخوة لكم بنو إسرائيل إن كان لكم كل‬
‫ " حلوة ولهم كل مرة كال وهلال‬:reads Huzayfa of saying The 8 ‫الشراك قدر طريقهم لتسلكن‬
."See,Al-Suyūti, Al-Durr al-Manthūr, 3:88.STUDYING THE CASE OF RIBA
111 assembly to give the injunctions of Islam the legislative effects.9 The
constitution of 1956, however, was abrogated before the commission could be
established in accordance with the article 198 of the same. The institution was
finally established in 1962 –as “Advisory Council of Islamic Ideology”.10 The
articles 199-206 of the Constitution of Pakistan, 1962 dealt with the
establishment, composition, membership duration and functions of the council.
The council was entrusted to check Islamicity of existing laws and provide
opinion about conformity of any proposed law with the principles of Islamic
Sharia.11 The Advisory Council of Islamic Ideology was renamed as Council
of Islamic Ideology CII after the constitution of 1973. The part 9, articles 228-
231, of the 1973’s constitution deal with the composition, functions and tenure
of the membership, rules of procedure of the council. The provisions about the
council of the constitution of 1962 and 1973 are quite similar with two major
differences. First, the number of membership was not less than five and not
more than 12 in the 1962’s constitution while this number is between 8-20
under the 1973’s constitution. The second major difference is about the
representation of women and sects.12 According to the 1973’s constitution the
members should be from different sects and there must be at least one woman
member. In the 1962’s constitution the president h had to regard the
appreciation of the person to the teachings of Islam and his understanding of the
principles of Islam and legal, political, administrative and economic problems
of Pakistan.13 This was a brief introduction and historical background of the
CII. The rest about the CII shall be discussed later. 3.2. Federal Shariat Court
The Federal Shariat Court (FSC) was established in 1980 by a Presidential
85
order14. The FSC was successor of the Shariat Benches 9 Article 198, The
constitution of Islamic Republic of Pakistan, 1956 10"Council Of Islamic
Ideology|||CII History". 2019. Cii.Gov.Pk. Accessed January 22.
http://cii.gov.pk/aboutcii/History.aspx. 11 Article 204, The Constitution of
Islamic Republic of Pakistan, 1962 12Constitution of Pakistan, 1973, Article
228 13Constitution of Pakistan 1962, Article 201 14"Establishment – Federal
Shariat Court Of Pakistan". 2019. federalshariatcourt.gov.pk. Accessed January
24. http://www.federalshariatcourt.gov.pk/en/establishment/.112 AHMAD
HAMZA GHAZALI of the four High Courts of Pakistan established by the
Constitution (Amendment) order 1979 (P.O No. 3 of 1979).15 After one year of
these benches the FSC was established having its principle seat in Islamabad.16
The Chapter 3A of the Part VII of the constitution of Pakistan 1973 deal with
the functions, jurisdiction rules number of judges of and appeals from the
decisions of the FSC. According to the constitution the Federal Shariat Court
has judges not more than eight including the Chief Justice of it. Among these
judges not more than three judges can be from Ulama having experience of
fifteen years in the research or engagement with Islamic law. Other five judges
have to be selected from the persons who are or have been judges of a High
Court.17 The tenure for the Chief Justice –or judges- of the FSC is three years
but they can be selected for further periods of three years by the president of
Pakistan. As far as the functions of the Federal Shariat Court are concerned, the
court has two basic functions. First the court has exclusive jurisdiction to decide
whether or not any law or provision of law –enforced for the time being – is
compatible with Islamic injunctions as prescribed by the Qurān and the Sunnah
of the Prophet PBUH.18 The court can do so on the application of any citizen
of Pakistan or Federal or Provincial Government or on its own motion.19 The
other function of the FSC is that it hears the 15 There had been established
Shariat Benches in all of the four High Courts of Pakistan i.e. Peshawar,
Lahore, Sindh and Baluchistan High Courts. The Shariat petitions had been
filed in Shariat Benches of Sindh, Lahore and Peshawar High Courts but only
the Bench of Peshawar High Court reported its decision. The Bench of Lahore
High Court decided only one petition but it did not report it. The FSC reported
the decision on the appeal against the decision of the Lahore High Court Shariat
Bench as BZ Kaikus vs Federal Government of Pakistan. See for details Martin
Lau, The Role of Islam in the Legal System of Pakistan (Leiden/Boston:
Martinus Nijhoff Publishers, 2006) 131 16Shahbaz Ahmad Cheema, "The
Federal Shariat Court's Role to Determine the Scope of Injunctions of Islam and
Its Implications." Journal of Islamic State Practices in International Law. 9:2
(2013): 92. 17Constitution of Pakistan, 1973, Article 203C (3A).The Chief
Justice of Federal Shariat Court should be a person who is qualified to be –or
has been- judge of the Supreme Court of Pakistan or who has been permanent
judge of a High Court. See, article 203C (3) of the constitution. 18 The wording
of the article 203G of the constitution suggests that if the matter comes under
the original jurisdiction of the FSC i.e. the issue is related to the Islamicity of
any law or legal provision, the jurisdiction in that matter belongs only to FSC
and even Supreme Court of Pakistan will not have jurisdiction. See for details
86
Muhammad Munir, Precedent in Pakistani Law, (Oxford University Press:
2014) 176 19 Article 203D, Constitution of Pakistan, 1973STUDYING THE
CASE OF RIBA 113 appeals against the decisions of lower courts made in the
matters related to Islamic Punishments i.e. Hudūd. 20 Giving the brief
introduction of FSC, the rest about the court shall be discussed in the coming
sections of the paper. 4. Role of CII As it has been pointed out earlier, the
fundamental role of CII is to check the compatibility of existing laws with the
injunctions of Islam and to give recommendations to the legislature for future
legislations. Apart from that the CII furnishes opinion in the matters referred to
it by the President of Pakistan, the Governor of any province, any house of
parliament and provincial assemblies.21 Fulfilling its constitutional obligation,
the CII began reviewing the existing laws in Pakistan in 1974. The council
submitted its first report in 1977 and it has submitted more than 90 reports so
far. CII has reviewed thousands of law from the early 18th century to the
present day. The CII has submitted its final report, after analyzing all the
enforced laws from the beginning up to 1973, in 1996. It found about only 5
percent of the laws repugnant to the injunctions of Islam.22 Although the article
230 of the constitution of Pakistan requires the legislature to put the
recommendations furnished by CII for discussion and make 20 Ibid, Article
203DD. 21 According the article 229 of the constitution the President and the
Governors may refer to the council to know whether or not any proposed law in
inconsistent with the injunctions of Islam. Further, the parliament and
provincial assemblies are bound to refer to the council to seek advice about
compatibility of proposed law with the injunctions of Islam if 2 fifth of the
membership demands for that reference. In this situation, as provided by the
article 230 of the constitution, the council shall inform, within fifteen days, the
respective house of assembly about the period in which it would furnish its
opinion. In this situation the President, Governor, assembly or the house of the
parliament may not delay the legislation till the advice is furnished, if they
consider making the law without delay is in the public interest. If the law is
made before the opinion of the council and the council opines that the law is
repugnant to the injunctions of Islam, the law shall be reconsidered. Article 230
of the constitution further requires the legislature to discuss the reports
submitted by the council for legislation within six months from the day of
submission and make laws in accordance with the recommendation of the
council within two years. 22Muhammad Khalid Masud, "Role of the Council of
Islamic Ideology in the Islamisation of Laws in Pakistan." Paper presented at
the Pakistan Summit: Disentangling the Politics of ‘Crisis’: The Pakistani
State(s), Governance and Culture from Within, International Centre for Muslim
and non-Muslim Understanding, Adelaide: University of South Australia
(2015).114 AHMAD HAMZA GHAZALI laws in accordance with the
recommendations given by CII within two years, very few recommendations of
the CII could attract the worthy attention of the legislature for consideration.23
4.1. Why CII is Inefficient? There are multiple factors why the Council of
Islamic Ideology could not play an effective role in the Islamization of laws in
Pakistan. In the following these factors are being elaborated. I. Legal Factor:
87
The first and the foremost factor in the inefficiency of the CII is the legal
framework. Despite having a significant mandate of reviewing laws with the
perspective of Islamic injunctions, providing opinions for the proposed laws
and recommendations for giving the Islamic injunctions legislative effects, the
council of Islamic Ideology does not have a binding force.24Muhammad Munir
points out that the nature of the recommendations given by the CII is that
ofnon-binding recommendatory and the council does not have any independent
power of enforcement.25 This non-binding nature of the CII's opinions has been
badly exploited by Pakistani legislature for not deliberating on the
recommendations of CII.26 II. Lack of Coherent Legal Theory: The council of
Islamic Ideology, as already has been pointed out, is entrusted to examine the
laws on the touchstone of Islamic Injunctions as laid down in the Qur'ān and the
Sunnah. Not following 23 Ibid. Accoding to Khalid Masud, who had been the
Chairman of the CII from 2004 to 2010 only two of these recommendations,
could reach to the parliament. Masud points out that had the legislature
considered the recommendations of CII for legislation the objection on
Pakistani law as being un-Islamic would have been removed as all of the
existing laws from 1726 till today have been reviewed by the council and
recommendation about the laws repugnant to Islamic injunction have been
made. Nevertheless, Pakistani legislature rarely considered the
recommendations of the council. 24Muhammad Izfal Mehmood, "Fatwa in
Islamic law, institutional comparison of fatwa in Malaysia and Pakistan: The
relevance of Malaysian fatwa model for legal system of Pakistan",Arts and
Social Sciences Journal 6:3 (2015): 1-3. 25Muhammad Munir, "The Law of
Khul' in Islamic Law and the Legal System of Pakistan",LUMS Law Journal
(LLJ) 2 (2015): 33-63. The author identifies four basic principles of the legal
theory of the CII. These principles are (a) the al-ibāḥah alaṣliyyah –which
means the presumption that everything is permissible unless proven otherwise
by an evidence from the injunctions of Islam- (b) qiyās i.e. analogy, (c) Istiḥsān
–which is giving preference to one analogy on the other but wrongly equated
with equity of the common law- and (d) maṣlaḥah al-mursalah, which means
the common interest. 26 Khalid Masud pointed out the except for the three
reports of his period as the chairman of the CII, the parliament did not officially
put any report of the council for deliberations. STUDYING THE CASE OF
RIBA 115 a particular school of Islamic law, the council was supposed to
develop a coherent legal theory according to which it could extract laws from
Qur'ān and the Sunnah in order to avoid the analytical inconsistency. The
council however, instead of developing its own legal theory started picking
opinions from different schools of Islamic law according to the needs of the
situation.27 This led the council to produce recommendations that are in
conflict with each other.28 III. Effects of the Change of the Chairman:This
factor is offshoot of the previous one. Not having a coherent legal theory of
extracting laws from Qur'ān and the Sunnah, the recommendations of the CII
are heavily influenced by the inclinations of it chairman.This has led the council
to make conflicting recommendations. An interesting example of the impact of
the change of the Chairman of the CII on its recommendation is divorce. The
88
CII, under the chairmanship of Khalid Masud –who claims to be a progressive
and reformist-, the council recommended that a husband should be made bound
to give divorce to wife on her demand and if he does not comply with the
demand of wife, the divorce should automatically be effective after 90 days of
such demand.29 In 2015, under the 27Muhammad Mushtaq Ahmad,
"Discovering the Law without a Coherent Legal Theory: The Case of the
Council of Islamic Ideology.",LUMS Law Journal (LLJ) 4:1 (2017) 37-55 28
There are a number of examples which show that the council has issued
recommendations that are in conflict with the earlier recommendations of the
CII. For instance, the CII issued recommendations concerning Hudood
Ordinance 1979 in which the CII identified certain provisions of the Ordinance
to be repugnant with the injunctions of Islam. The Hudood Ordinance 1979
were drafted and prepared by the CII itself. Other example is of the divorce.
The council issued recommendations in 2008 that the husband should be made
bound the give divorce on the demand of wife and the divorce should be
effective after 90 days if the husband does not give divorce on the demand of
wife provided that the wife does not revoke the demand. In 2015 the council
issued recommendations that the courts should not issue the decree of Khul‘
without the consent of the husband. 29 The recommendation reads as follows;
“Therefore, in our opinion, a law should be enacted at the level of the state that,
after a woman’s written request for divorce, the husband must have an
obligation to divorce her within 90 days. If the husband refuses to divorce her,
the marriage shall stand dissolved after the passage of this time [90 days] except
if the wife revokes her request. The husband should have no right to revoke
after this. The wife must return assets and property given to her by the husband
except dower and maintenance if demanded by the husband or else approach a
court of law for the resolution of the conflict (of return of assets/valuables).”
See, Council of Islamic Ideology, Annual Report, 2008-9 (Islamabad: Council
of Islamic Ideology, 2009) 170, available at: http://cii.gov.pk/E-Books.aspx116
AHMAD HAMZA GHAZALI chairmanship of Maulana Muhammad Khan
Shirani –who is deemed to be a conservative ‘ālim-, the council gave an
opposite opinion that the courts should not dissolve the marriage on the basis of
khul‘ without the consent of the husband.30In the last year under the
chairmanship of Qibla Ayaz, yet again the issue of divorce surfaced on the
media when the council proposed that a new Nikahnama would be introduced
by which the husband would be bound to divorce the wife on her demand.31
IV. Controversies: Another factor which leaves a bad impact on the role of CII
and damages its credibility before the people of Pakistan is that the CII has
made a number of recommendations which infuriated either the moderate or the
religious class of population. Some instances of these controversies are as
follows. A. In 2005 the CII reviewed “The Offence of Zina (Enforcement of
Hudood) Ordinance, 1979”–which was drafted by the very CII back in 1979–
and proposed certain amendment, which later resulted in the Protection of
Women (Criminal Laws Amendment) Act, 2006. This proposal was vigorously
opposed by religious groups. Surrendering to the intensity of the opposition,
some ministers proposed that a group of Ulama should examine the proposal
89
given by CII based on which the Hudūd laws had to be amended. The members
of the council decided that they will resign from the office if the proposal is put
before the Ulama to examine as the council was the only constitutional body to
examine the Islamicity of laws.32One of the members of CII, Javed Ahmad
Ghamidi announced his resignation from CII but his resignation could not be
completed.33 B. In 2009 the CII made the recommendation that a divorce
should be effective after 90 days if the wife 30 The same was the
recommendation by the council in the Anuual report, 2014- 15. See, Council of
Islamic Ideology,Annual Report, 2014-15 (Islamabad: Council of Islamic
Ideology, 2015) 114, available at: http://cii.gov.pk/E-Books.aspxlast accessed
January 26,2019). 31The Express Tribune,“CII drafting new comprehensive
nikahnama”The Express Tribune, 2018,
(https://tribune.com.pk/story/1826664/1-cii-drafting-newcomprehensive-
nikahnama/ last accessed Feb 3, 2019). 32 Khalid Masud, the Role of Council
of Islamic Ideology ‫اساليم نظريايت کونسل کے رکن جاويد اغمدی نے اعالن کے باوجود ابهی‬
‫ " تک اپنا استع ٰيف‬,Point 33Urdu ‫"ردو پوائنٹ پاکستان‬. ُNovember, Urdupoint. ‫حتريری‬
‫ا‬ ‫ذرائع‬، ‫بهجوايا‬ ‫نہنی‬ ‫کو‬ ‫امور‬ ‫مذہيب‬ ‫وزارت‬ ‫پر‬ ‫طور‬
2006,(https://www.urdupoint.com/pakistan/news/islamabad/important-
news/livenews-11324.html last accessed February 3, 2019).STUDYING THE
CASE OF RIBA 117 demands from the husband and he refuses to pronounce
the same. This prompted a widespread criticism on the CII by various religious
groups. Khalid Masud, the then chairman of the CII attempts to justify the
recommendation on the notion of legal reformism and his criticism ontaqlīd. It
is widely used presumption that Pakistan does not follow a particular school of
Islamic law, hence the CII –and FSC for that matter – are not bound by the
opinions and interpretations of Muslim jurists. This is true but it is not
understandable how CII violates all of the schools of Islamic law and comes up
with a recommendation which does not comply with any Islamic School.
Muslims of Pakistan follow one or other school and coming up with a
recommendation inconsistent with all schools is interfering in the personal law
of Muslims: a jurisdiction which even the FSC does not have.34 C. In 2016,
Maulana Muhammad Khan Shirani, the then chairman of the CII, in a press
briefing stated that the husbands should be allowed to slightly beat their wives
and that should not be considered as violence. This statement prompted an
outrage among people particularly the secular groups.35 At this time the very
existence of CII was questioned by a member of upper house. Farhat Ullah
Babar, the senator from PPP (a political party in Pakistan) argued that the
function of the CII was to review the existing laws in order to bring them in
conformity with the injunctions of Islam and with the submission of the final
report in 1996, the CII has completed his function and now there is no need of
the existence of CII. He further argued that the FSC can nullify the laws on the
touchstone of Islamic injunctions thus, there is no need of the CII and it should
be dissolved.36 5. Role and Functions of FSC 34 See the discussion on the
jurisdiction of the FSC below. 35 The Express Tribune, “Gentle Beating’ Of
Wife Is No Violence, Says CII Chief” The Express Tribune,
2016(https://tribune.com.pk/story/1111222/nothing-seriousgentle-beating-wife-
90
no-violence-says-cii-chief/ last accessed February 3, 2019). 36Wasim, Amir,
"Senators Question Existence Of Council Of Islamic Ideology". DAWN.COM,
2016(https://www.dawn.com/news/1232659last accessed February 3, 2019).118
AHMAD HAMZA GHAZALI The Federal Shariat Court has three types of
jurisdictions i.e. original exclusive, review and revisional.37 In the first one, the
FSC has the authority to examine any law in Pakistan whether or not the law is
repugnant with the injunctions of Islam. FCS can do so on its own motion, on
the reference of the federal or provincial government and on the petition filed
by any citizen of Pakistan. If the court finds any law repugnant to the
injunctions of Islam, the court informs the legislature –the parliament in case of
the matter is in Federal Legislative List and respective provincial assembly if
the law is made by the province – about the repugnancy of the law with the
injunctions of Islam. The court, in doing so first of all gives the reasons why the
law or the provision of law is repugnant to the Islamic injunctions and secondly
it specifies the extent to which the law is repugnant to the injunctions of Islam.
Further, the court specifies the time by which the law has to be amended. An
appeal can be filed against the decision of FSCin SAB of the SCP within
specified period.38 If the decision of FSC is not challenged or the decision is
sustained by the SAB, the repugnant law would be ineffective on the day on
which the decision of FSC becomes effective. In the second one, the FSCcan
review any decision made by the FSC itself. This jurisdiction has been
conferred to the FSC under Article 203-E (9) of the constitution. In the third
jurisdiction the FSC has the power to examine the decision made by the lower
courts in the matter related to the enforcement of Hudūd. For this purpose, the
FSCcan call for the record of the lower court and may order to suspend the
execution of sentence and to release the accused on bail. In this regard, the FSC
has the power to enhance the punishment awarded by the lower court if the
court deems fit. However, the FSC does not have the authority to convert an
acquittal of the trial court into conviction.39 Apart from that, the FSC also
entertains the appeal from the decision of trial courts in the matters of
Hudūd.Further, the FSC has the jurisdiction to punish the offenders of the
contempt of court. 37Faqir Hussain,The judicial system of Pakistan (Islamabad:
Supreme Court of Pakistan, 2011) 24 38 This period is sixty days if the
aggrieved person is a citizen of Pakistan. If the appeal is being made on behalf
of the Federation of Pakistan or any Province of it, this period is six months.
See, Constitution of Pakistan 1973, article 203-F 39 Ibid. Article 203-DD (2).
STUDYING THE CASE OF RIBA 119 Giving this brief account of the role of
the FSC in the Islamization of laws in Pakistan, in the next part we will discuss
the reasons why this court has become a toothless institution and why it could
not play an effective role in the process of Islamization of laws. 5.1. Why FSC
is a less effective institution? There are multiple reasons why the Federal
Shariat Court could not play an effective role in the realization of the dre am of
Islamization of laws in Pakistan. These factors are as follows; I. Jurisdiction of
the Court: The first and foremost factor which prevents the FSC from playing
an efficient role is its lack of jurisdiction in various areas of law. According to
the article 203-B of the constitution40 the FSC does not have jurisdiction to
91
examine the Islamicity of any article of the constitution41 any provision of
Muslim personal law and procedural laws. Furthermore, for a period of ten
years the FSC would not have jurisdiction on the issues related to taxation and
fiscal laws. Keeping in view the plain wording of the constitution the FSC
restrained itself from asserting jurisdiction on the matters related to codified
family law of Pakistan.42Even the SAB of the SCP overturned the decision of
Shariat Bench of the Peshawar 40 The article reads as follows; “"law"includes
any custom or usage having the force of law but does not include the
Constitution, Muslim personal law, any law relating to the procedure of any
court or tribunal or, until the expiration of [ten] years from the commencement
of this Chapter, any fiscal law or any law relating to the levy and collection of
taxes and fees or banking or insurance practice and procedure”. 41 According to
the existing scheme of jurisdiction there is a deadlock when it comes to decide
the Islamicity of a constitutional provision. As it has been noted, the FSC does
not have jurisdiction on the constitution while FSC is the only court which can
decide the islamicity of law. Thus, if any provision of constitution is challenged
on the ground of Islamicity, the FSC does not have jurisdiction and no other
court, including the Supreme Court of Pakistan, can decide islamicity of laws.
This is provided in the article 302 G of the constitution and it was held by the
Supreme Court of Pakistan in Zahid Rehman v The State PLD 2015 SC 77 in
which Jusice Asif Saeed Khosa noted that "[I]t must never be lost sight of that
by virtue of the provisions of Article 203 G of the Constitution of the Islamic
Republic of Pakistan, 1973 this Court or even a High Court, has no jurisdiction
to test repugnancy or contrariety of any existing law or legal provision to the
Injunctions of Islam as laid down in the Holy Qur’an and Sunnah and such
jurisdiction vests exclusively in the Federal Shariat Court and the Shariat
Appellate Bench of this Court." This leads to a deadlock where the matter of the
islamicity of constitutional provision cannot be resolved. 42 Elisa
Giunchi,Adjudicating Family Law in Muslim Courts(New York: Routledge,
2014) 16120 AHMAD HAMZA GHAZALI High Court on the ground that the
said bench did not have jurisdiction on MFLO for the reason of being Muslim
personal law.43 In the later years, however, the FSC asserted its jurisdiction on
the codified Muslim family laws of Pakistan on the ground that these laws does
not fall within the meaning of Muslim Personal Law. The Supreme Court of
Pakistan also held in Mahmood ur Rahman vs Government of Pakistan that the
codified statutes are under the jurisdiction of FSC.44 The FSC also asserted its
jurisdiction on MFLO in Allah Rakha vs Federation of Pakistan. 45 As far as
the constitution of Pakistan is concerned the FSC has been inconsistent about its
jurisdiction in it. In B.Z Kaikus vs President of Pakistan, the FSC held that
Representatives of People Act 1976 is related to the constitution thus, is beyond
the jurisdiction of the court.46 But in Muhammad Salah ud Din vs Government
of Pakistan the FSC held that the same act is not related to constitution and
thus, it comes under the jurisdiction of the FSC.47Due to this inconsistent
behavior of FSC about its jurisdiction, where the court avoided controversial
decisions exploiting its jurisdictional limitations and extended its jurisdiction
where it felt flexibility, the FCS has been criticized.48Apart from that the
92
jurisdiction of the FSC has been further curtailed by the enactment of the
Women Protection Act 2006 in which it has been enacted that the appeals
against certain cases of Hudood Ordinance, 1979 are excluded from the
jurisdiction of FSC and transferred to the High Courts.49 II. Tenure of Judges:
Another factor which makes the FSC susceptible to the influence of powerful
executive is the tenure of the judges of FSC. According to the article 203-C (4)
of the constitution of Pakistan the judge of the FSC cannot hold his office for a
period longer than three years. However, he can be selected for further such
periods by the president of Pakistan. This places the judges in a weaker position
where they can be manipulated by the executive for the greed of the extension
of their tenure, 43The Federation of Pakistan vs Mst. Farishta, PLD 1981 SC
120. 44 PLD 1994 SC 607 45 PLD 2000 FSC 1 46 PLD 1981 FSC 1 47 PLD
1990 FSC 1 48Daniel P Collins, "Islamization of Pakistani Law: A Historical
Perspective.",Stanford Journal of International Law. 24 (1987) 511. 49 Faqir
Hussain, Judicial System of Pakistan, 14STUDYING THE CASE OF RIBA
121 which is against the well settled principle of the independence of
judiciary.50 III. Appeals Against the Decisions of FSC: Another factor which
exhausts the efforts of the FSC is the appealing system. According to the
constitution of Pakistan an appeal can be made against the decision of FSC in
the SAB. The SAB is composed of 3 judges of the SCP and not more than 2
Ulama who can be appointed to attend the proceedings as ad hoc judges of the
SCP. The problem with this system is that there is no time frame given for the
constitution of the Appellate Bench. This is the reason the decisions of the FSC
are pending in the Shariat Appellate Bench for more than decades.51The FSC
in a suo motodecision declared that the section 10 of the Citizenship Act of
Pakistan 195152 is repugnant to the Islamic injunctions and article 25 of
constitution of Pakistan.53 The Government of Pakistan challenged the decision
in the SAB and the matter is pending in the court. 6. Conclusions 50 Ibid. 51
Almost every decision of the FSC is challenged by the government and it goes
in the status of hibernation for an indefinite period. There are numerous
examples of such cases. Allah Rakha Case was decided in 2000 by the FSC and
the government Pakistan challenged the decision in the SAB and after 19 years
the case is pending in SAB. The issue of Riba is another example of delaying
tactics by the government. The FSC in Mahmood-ur-Rahman Faisal v.
Secretary, Ministry of Law PLD 1992 FSC 1, declared Riba repugnant to the
Quran and Sunnah and the government of Pakistan preferred an appeal against
the said decision in the SAB. The SAB upheld the decision of FSC in 1999 and
directed the government of Pakistan to amend the banking laws within two
years. The government filed a review petition in the SAB which sent the case
back to FSC directing the court to reconsider its decision by taking advice from
the contemporary Muslim scholars. See, Muhammad Munir. "Precedent in
Islamic Law with Special Reference to the Federal Shariat Court and the Legal
System in Pakistan." Islamic Studies (2008): 445-482. The FSC started hearing
the case after 15 years in 2017 see, The Express Tribune, "FSC Agrees To First
Define ‘Riba’",The Express Tribune,
2017(https://tribune.com.pk/story/1354567/25-years-fsc-agrees-firstdefine-riba/
93
last accessed February 5, 2019). 52 The said article says that a foreigner male
spouse of a Pakistani woman is not eligible to apply for Pakistani citizenship on
the ground of his marriage with a Pakistani woman. While a foreigner woman
can apply for Pakistani citizenship on the ground of her marriage with a
Pakistani man. 53FSC (2006) 1/K122 AHMAD HAMZA GHAZALI Pakistan
recognizes Islam as the state religion. According to the constitution of Pakistan
all laws are supposed to be compatible with Islamic injunctions and no law
should be in violation of these injunctions. In order to fulfill this promise there
are two constitutional institutions i.e. the CII and the FSC. The former is
entrusted to review the existing law to examine whether or not these are in
conformity with the injunctions of Islam and check the compatibility of
proposed laws with the injunctions of Islam and make recommendations for
proposed laws. However, these recommendations are not binding in nature and
the institution does not have any binding force to enforce the
recommendations.The latter has the authority to examine the laws and declare
any law null and void on the ground of being inconsistent with the injunctions
of Islam. Despite having these institutions and strong desires of the majority of
Pakistani people the dream of Islamization could not be realized. This is
because these two institutions either could not play their effective role in the
Islamization of laws in Pakistan or these are made toothless institutions. Thus,
there is need of structural change in the role and functions of these institutions
so that the aspirations of an Islamic Republic of Pakistan could be realized in
true letter and spirit. 7. Recommendations Based on what has been analyzed
and concluded the author makes the following humble recommendations. I. The
parliament and the Provincial Assemblies –as the case may be – should be made
under obligation to at least consider the recommendations of the Council of
Islamic Ideology. Further, these legislative bodies should give reasons if they
are of the opinion that legislation cannot be made on the recommendations
given by the CII. II. The CII should be made under obligation to adopt a
coherent framework for extracting laws from the texts of Qur'ān and the
Sunnah. III. The CII, particularly the appointment of its chairman, should be
free of political considerations and ideology of ruling regimes. IV. The
jurisdiction of Federal Shariat Court should not be limited. It should have the
authority to examine Islamicity of any law. V. There should be an age of
retirement for the judges of the FSC and their tenure in the office should be
assigned with the age of retirement and not three years. If the tenure
STUDYING THE CASE OF RIBA 123 must be three years, then there should
be no appointment for further tenure so that the judges of FSC may not have
any expectations of extension of tenure and work free from greed of the power.
VI. There must be a time frame for the appeals against the decision of FSC so
that the decisions of FSC should not go infertile and they become fruitful. The
appeals against the decisions of FSC should be decided within a period of 5
years from the date of the decision of FSC. Should the SAB remand the matter
back to FSC, the decision of FSC should be final and unchallengeable.
Principles of Policy and Fundamental Rights in the Constitution of Pakistan

Part II of the Constitution of Pakistan, 1973 has One article i.e. art. 7 and two
94
chapters; one contains Fundamental Rights while the other contains Principles
of Policy. Article 7, which defines the State, is placed in Part II but falls outside
of both the chapters, which means it is applicable to both the chapters. This
leads to confusion between the Fundamental Rights and Principles of Policy.
Similarity of contents of chapter 1 and 2 of part II also adds to the confusion.
What the Principles of Policy are?  Principles of Policy are the very object
and purpose for which the State is established,  Aspirations of the Constitution
makers and intended to be considered as the guiding principles of the policy of
State.  the basic principles of the Constitution or Part II of the Constitution
Article 7 Chapter 1 Chapter 2 Chapter 2 Principles of Policy Article 29-40
Chapter 1 Fundamental Rights Article 8-28 principles which speak of the
ideals that are to be achieved as the cherished goal of every political party voted
to power by the people of the State. (PLD 1998 SC 1263) As article 29 (1)
enjoins that: it is the responsibility of each organ and authority of the State, and
of each person performing functions on behalf of an organ or authority of the
State, to act in accordance with those Principles in so far as they relate to the
functions of the organ or authority. So Principles of Policy can be said to be the
poles star for those who are to put these polices into practice, for example, to be
followed  By the executive in their day to day business;  By legislature when
it makes laws, and  By judiciary in understanding and applying the provisions
of law; holding the same place as principles of equity, justice and good
conscience. Principles of Policy in the Constitution of Pakistan  Principles of
Policy [Article 29]  Responsibility with respect to Principles of Policy [Article
30]  Islamic Way of Life [Article 31]  Promotion of Local Government
Institutions [Article 32]  Parochial and other similar prejudices to be
discouraged [Article 33];  Full participation of women in national life.[Article
34]  Protection of Family etc. [Article 35]  Protection of Minorities.[Article
36]  Promotion of Social justice and eradication of social evils.[Article 37] 
Promotion of social and economic well being of the people;[Article 38] 
Participation of people in armed forces[Article 39]  Strengthening bonds with
Muslim World and promoting international peace.[Article 40] Inter-relation of
Fundamental Rights and Principles of Policy Fundamental Rights and
Principles of Policy as enumerated in chapter 1 and 2 of part II of the
Constitution can be said to be the two sides of the same coin. One without the
other is incomplete and unfulfilled. The fundamental rights ensure political
democracy while the principles of policy strive to achieve economic and social
democracy blended with Islamic provisions. The objective of the fundamental
rights is to provide congenial environment for the fullest development of the
personality of citizens. For the fulfillment of this objective the individual has
been given a good number of freedoms. The objective of Principles of Policy is
to provide the individual with socioeconomic and political justice. Fundamental
Rights and Principles of Policy can be said to be the two sides of the same coin,
however, there are differences between the two. Difference between
Fundamental Rights and Principles of PolicyNature of Instructions
Fundamental rights Principles of policy Negative  The nature of obligations
95
imposed on the State is negative. It restricts the state from taking certain actions
i.e. not interfere in the freedoms and liberties of the citizens.  It uses the words
like:  “No person shall be deprived….”  “No law shall authorize ….”  The
essential characteristic of fundamental rights is that they impose limitations,
expressed or implied, on public authorities, interfering with their exercise. [PLD
1969 SC 387] Positive  The nature of obligations imposed on the state is
positive. It requires the State to take certain actions to achieve the certain
objectives i.e. promotion of local government, protection of family, promotion
of socio-economic justice, etc.  It uses the words like:  “Steps shall be
taken”  “The state shall endeavor” Fundamental Rights i. Nature of
Instructions: Negative ii. Justiciable iii. Enforcement Mechanism: Art 8, 184(3),
199 iv. Primacy Principles of Policy i. Nature of Instructions: Positive ii. Non-
justiciable iii. Enforcement Mechanism: art 29(2) iv. No primacy Judicial
enforceability Fundamental rights Principles of policy  Fundamental Rights
have a mandatory character and been placed beyond the power of any organ of
State whether Executive or legislative to act in violation of it. They cannot be
taken away, suspended or abridged, save as provided by the Constitution.
Article 8, for example, restricts the State from making any law in contravention
of the Fundamental Rights. A law so enacted, shall be void.  An action by the
legislature or the executive in violation of Fundamental Rights is void in law
and the courts are bound to make a declaration accordingly and to give suitable
relief to the aggrieved party.  [PLD 1964 SC 673].  The Principles of Policy
are not mandatory in character nor enforceable at law. They are guiding
principles for all the organs of the state but have no absolute quality attached to
them as is attached to the Fundamental Rights. The courts cannot declare any
law to be void on the ground of contravention of any of the directives. [AIR
1958 SC731] These are not enforceable by any judicial process and no Court
would be entitled to declare any legislation as invalid on the ground that it does
not conform to the spirit of any of the directive principle [AIR 1954 SC 648]. 
Article 29 (2) provides that the observance of Principles shall be regarded as
subject to the availability of the resources. So, the State cannot be held
responsible for not observing a principle of policy, if it does not have resources.
Enforcement Mechanism Fundamental rights Principles of policy  Thanks to
the provisions of article 184(3), the Supreme Court is the guardian of the
Fundamental Rights. Matters of Fundamental Rights can  The enforcement
mechanism for Principles of Policy is different. Article 29(3) provides that the
president, in relation to affairs of the federation, also be raised before High
Courts under article 199. It is the job of the judiciary to decide that whether a
fundamental right is violated or not? and the governors of each province in
relation to affairs of the province, shall cause to be prepared and laid,
respectively, before the parliament and provincial assembly, a report on the
observance and implementation of the principles of policy. In, other words, it is
not the job of the judiciary to see whether the principles of policy are observed
and implemented? Furthermore, under article 30(2), in contrast to issue of
Fundamental Rights, the validity of an action or of law shall not be called in
question on the ground that it is not in accordance with Principles of Policy, and
96
no action shall lie against the State, any organ or authority of the State or any
person on such ground. On the contrary, the responsibility of deciding whether
any action of an organ or authority of the State is in accordance with the
principles of policy is that of the concerned organ or authority of the State.
Legal Primacy Fundamental rights Principles of policy  Fundamental rights
are judicially supreme over the Principles Policy. Fundamental Rights are
enforceable. These have been given a primacy of mention in the constitution.
Principles of Policy are nonenforceable which have been incorporated in the
Constitution after the fundamental rights. These features are a source of legal
primacy of the latter over the former.  In the case of the State of Madras, Vs.
Champakam Dorairajan the Supreme Court of India held, “The directive
principles of the state policy  In 1980, the Supreme Court of India while
delivering judgment in the Minerva Mills case made it quite clear that the
precedence or supremacy given to the Directive Principles over the fundamental
rights according to the Forty Second constitutional amendments was wrong.
The courts have accepted viewpoint that the directive principles are subsidiary
and not supreme over the fundamental rights.  The same view has been taken
in Pakistan when the Supreme Court held that directive principles have to
which were expressly made unenforceable by a court cannot over-ride the
provisions of Part III which . . . . are made enforceable by appropriate writs,
orders or directions under Article 32. The directive principles have to conform
to and run subsidiary to the chapter on fundamental rights.” conform and to run
subsidiary to the provisions of Fundamental Rights. So long as , there is no
infringement of any Fundamental Right, there can be no objection to the State
acting in accordance with the directive principle. [PLD 1969 SC 387].
Principles of Policy do not confer vested rights New District was created bona
fide for advance of its educational and other interests and seats were allocated
to the people of said District for admission in Medical Colleges of the Province
in Public interest. Later on, a notification was issued by Government which
amended the Prospectus of the Medical Colleges treating the whole Province as
one District for the purpose of allocating seats in Medical Colleges. Validity of
the Notification was challenged in the Court. Petitioner’s submission was that
because the separate district of Malir was created in pursuance of the provisions
of Article 37, that Article in conjunction with the action taken in pursuance
thereof ought to be taken as having created some right in petitioner. Court held
that the submission is misconceived because once an action is taken or a law
promulgated by an organ or authority of the State in pursuance of the provisions
of Article 37, it is that action or that law only which must be examined to see
whether any right has thereby been created in any person. There is nothing in
the Notification creating Malir District conferring any right on the petitioners.
Court further held that Principles of Policy though described as Fundamentals
to the governance of the State, yet they have not been made enforceable by any
Court. Therefore, the question of creation of any right, vested or otherwise, in
the petitioner by Article 37 of the Constitution does not arise. [PLD 1996
Karachi 1]. Principles of Policy: aid in interpretation of the Constitution Sindh
High Court further held that the provisions of Article 37 and 38 are not directly
97
enforceable but are enforceable indirectly as aids in interpretation of other
provisions of the Constitution and of legislation. For this view it relied on the
Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 which held
that “the directive principles of State policy are to be regarded as fundamentals
to the governance of the State, but they are not enforceable by any Court.”
[PLD 1996 Karachi 1  Principles of Policy contained in Article 29 to 40 of the
Constitution when combined with Article 184 (3) and Article 2A do provide
lawful vehicle for interpretation, definition, refinement and enforcement of
fundamental rights contained in Chapter I, Part II. Articles 8 to 28. [NLR 1993
SCJ 749]. Principles of Policy as aid in interpretation; Provision of unpolluted
water: Example Provision of unpolluted water; basic necessity of the people and
primary duty of the government covered by the principle of Promotion of social
and economic well being of the people as enshrined in Article 38 of the
Constitution. Article 9 and 14 of the Constitution guarantee the right to life and
human dignity. Word "Life" could not be confined to mere vegetable or animal
existence, but it included the right to all amenities and facilities which a person
born in a free country was entitled to enjoy with dignity. Right to life also
includes the right to live in a pollution free environment. [2004 CLC 1353]. In
hilly areas where access to water was scarce, difficult or limited, the right to
have water free from pollution and contamination was a right to life itself; that
would not mean that person residing in other parts of the country where water
was available in abundance, would not have such right. Right to have
unpolluted water, was the right of every citizen wherever he lived. Wide
meaning should be given to the word life to enable men not only to sustain life
but to enjoy it……. Authorities constituted under Pakistan Environmental
Protection Act, 1997 were equally responsible to prosecute concerned industries
for willfully violating provisions of the said Act. Under provisions of Article 38
(d) of the Constitution, it was the primary duty of Government to provide
people basic necessities of life which included unpolluted water for their
consumption [2000 YLR 2077]. Principles of Policy indicate the foundational
principles of the Constitution  Principles of Policy are not mere show words,
they lay down the very object and purpose of establishment of the State. These
principles having become part of the Constitution tell clearly that these are the
foundational principles of the Constitution. The achievement of the ideals set
forth in Chapter 2 of Part II of the Constitution, is the cherished goal of every
political party voted to power by the people. PLD 1998 SC 1263  Under
Article 29 it is the responsibility of each organ and authority of the state, and of
each person performing functions on behalf of an organ or authority of the state,
to act in accordance with principles of policy, in so far as they relate to the
functions of the organ or the authority. However, Article 29 also provides that
as for as the observance of any particular principle of policy is conce rned, it
may be dependent upon resources being available for the purpose. PLD 2005
Lahore In what sense Principles of Policy can be considered as rights? In what
sense the Principles of Policy can be considered rights when they confer no
legal rights, create no legal remedies, are not justiciable, and they are not
fundamental rights? Sindh High Court observed in in (PLD 1990 Karachi 342)
98
that:  "Although the Directive Principles of State policy confer no legal rights
and create no legal remedies, they appear to be like an instrument of
instructions, or general recommendations addressed to all authorities in the
State reminding them of the basic principles of the new social and economic
order which the constitution aims at building."  The honorable Court further
observed that these fundamental axioms of State policy, though of no legal
effect, have served as useful beacon lights to Courts. It is incorrect to categorize
them wholly as rights, duties, obligations or even as principles as the terms are
understood in common parlance although they partake the nature of each one of
them. They are rights which the individual enjoys in his collective capacity by
virtue of being a member of the Welfare State. They are not rights in the sense
that they are inherent and the individual can demand as a matter of right, but
rights which are conferred by the State on the individual for the specific
objective of promoting social wellbeing. Similarly, they are duties devolving
upon the State only to the extent that they have to establish a social order in
which social, economic, and political justice would prevail. They are not duties
in the legal sense, duties for the non performance of which the state shall be
answerable in the Courts of law, but in the moral and constitutional sense.
Discovering the Law without a Coherent Legal Theory: The Case of the
Council of Islamic Ideology Muhammad Mushtaq Ahmad* In the post-colonial
world, scholars – Muslim and nonMuslim – have generally found it better to
mix up the views of the jurists belonging to various schools of Islamic law
under – the presumption that the various schools of Islamic law followed a
‘common legal theory’ and differed in minor details only. This paper highlights
the problems in the methodology of modern scholars, and for this purpose
focuses on the Council of Islamic Ideology, the constitutional body for making
recommendations to the Parliament for the purpose of Islamization of laws. It
shows that while criticizing the works of the Muslim jurists on Islamic criminal
law, the Council has not been able to develop a comprehensive and internally
coherent legal theory, and has instead relied on a mix of principles of various
schools joined haphazardly without resolving internal inconsistencies. It
concludes that the modern critics of Islamic criminal law, by breaking their
links with valid legal sources, are left with reason as their sole guide in
addressing legal problems – an extremely pure form of naturalism that deems
reason as a complete source of law and accords too much room to discretion
and ‘independent’ reasoning. Introduction The first significant constitutional
document passed by Pakistan’s first Constituent Assembly in March 1949 was
titled the Objectives Resolution. This Resolution determined that Pakistan was
going to be an Islamic State. The Constitution of 1956 retained the Objectives
Resolution as its preamble and promised to bring the existing laws into
conformity with the ‘injunctions of Islam as laid down in the Holy Qur’an and
[the] Sunnah.’1 For this purpose, the Constitution envisaged a Commission,2
but the Commission could not start its functioning before the Constitution was
abrogated in 1958. * Associate Professor and Chairman, Department of Law,
International Islamic University, Islamabad (mushtaqahmad@iiu.edu.pk). 1
Constitution of the Islamic Republic of Pakistan 1956, art. 198. 2 Ibid.
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Electronic copy available at: https://ssrn.com/abstract=3489699LUMS Law
Journal 2017: 4(1) The Constitution of 1962 reiterated the promise of
Islamizing the laws3 and established the ‘Advisory Council of Islamic
Ideology’ for this purpose.4 The Constitution of 1973 retained this scheme of
the things but renamed the Council as the Council of Islamic Ideology.5 It also
fixed the time period of seven years for the Council to prepare the final report
about the Islamicity of the existing Pakistani laws.6 The Council was also to
prepare interim reports annually till the preparation of the final report.7
However, the Council started playing an active role only after the 1977 coup
when the Martial Law regime re-constituted the Council so that it would help
the regime in pursuing its agenda of Islamization of laws and economy. Since
then, the Council has been preparing annual reports, but these reports have been
kept ‘confidential’ and are only submitted to the concerned officials and
departments. Perhaps for the first time the Council deviated from this norm of
confidentiality in 2006, when it first uploaded on its website its Interim Report
and then the Final Report on reforms in the hudud8 laws. In this Report, the
Council gave some details about its methodology for deriving and extending the
rules of Islamic law. Some significant aspects of this methodology are
examined in this paper. The Council of Islamic Ideology and Issues of Legal
Theory The Council has been formed for the purpose of examining the existing
laws for repugnancy with the ‘injunctions of Islam as laid down in the Holy
Quran and [the] Sunnah.’ The question is: how does the Council perform this
function? Moreover, did the Council develop a legal theory of its own? In other
words, has the Council identified the ‘sources’ of law which it consults 3
Constitution of the Islamic Republic of Pakistan 1962, art. 198. 4 Ibid, art. 199-
207. 5 Constitution of the Islamic Republic of Pakistan 1973, art. 228. The
Council prepares annual reports of its recommendations and places them before
the Parliament which seldom gives any importance to these reports. In 2006, the
Council first prepared an interim report before the Parliament passed the
Protection of Women (Criminal Laws Amendment) Act and that report bears
the names of Muhammad Khalid Masud and Inam-ur-Rahman. Later, after the
said Act was passed, it prepared its Final Report which now only bears the
name of Muhammad Khalid Masud. It is available on the website of the
Council: www.cii.gov.pk/publications/h.report.pdf (last visited: 17 August
2014). All references in this paper are from this Final Report. 6 Constitution of
the Islamic Republic of Pakistan 1973, art. 230(4). 7 Ibid. 8 As per the
generally accepted norms of transliteration, the word ‘hudood’ should be
properly transliterated as ‘hudud’. Hence, the present paper generally follows
the norms of transliteration, except where other sources have been quoted
which use the spelling ‘hudood’, such as the ‘Hudood Ordinances’ or the CII
Report. Electronic copy available at:
https://ssrn.com/abstract=3489699Discovering the Law without a Coherent
Legal Theory: The Case of the Council of Islamic Ideology for deriving a rule
of Islamic law? Has it determined the order of priority of these sources and their
mutual relationship? Has it developed some ‘principles of interpretation’?
These are some of the significant questions for any legal theory as far as Islamic
100
law is concerned. This section examines these questions. Defining the
‘Injunctions of Islam’ First of all, it remains to be settled what exactly is meant
by the term ‘injunctions of Islam’. The Constitution does not define this phrase
and no superior court has ever considered defining this term. The Council,
while commenting in its Annual Report of 1986 on the ‘Shari‘at Bill’ passed by
the Senate, defined shari‘at as: ‘Shari‘at means the injunctions of Islam as laid
down in the Holy Quran and Sunnah’.9 Still, the Report does not offer any
definition of the ‘injunctions of Islam’. It, however, adds an explanation to the
definition of ‘shari‘at’: The following sources may be referred to for the
exposition of the injunctions of Islam: a) The Sunnah of the Rightly Guided
Caliphs; b) The Acts of the Companions of the Prophet; c) The consensus of
Muslim; and d) The expositions and opinions of the jurists.10 Another question
to be considered is whether the Council is bound by its own previous decisions?
In other words, does the Council consider its previous reports as legally binding
precedents? The answer to this question is surely in the negative. This is
supported by the fact that Council has many a times changed its
recommendations on the same issue. For instance, in 2006 it prepared a report
for amending or repealing the Hodood Ordinances, even though the draft of
these Ordinances was prepared by the Council itself in 1978. Such being the
case, it becomes all the more essential that a definition 9 Annual Report, 1986-
87 (Islamabad: The Council of Islamic Ideology, August 1991) 46. 10 Ibid. It is
worth noting that almost the same definition and explanation has been
reproduced in the Enforcement of the Shariat Act, 1991. Thus, explanation to
Section 2 of the Enforcement of the Shariat (Act X of 1991) Act 1991, says:
‘While interpreting and explaining the Shari’ah the recognized principles of
interpretation and explanation of the Holy Qur’an and Sunnah shall be followed
and the expositions and opinions of recognized jurists of Islam belonging to
prevalent Islamic schools of jurisprudence may be taken into consideration’.
Significantly, the same Act was re-legislated by the Provincial Assembly of
NWFP [now KP] in 2003 when the alliance of the religious parties Muttahida
Majlis-eAmal (MMA) was in power. Electronic copy available at:
https://ssrn.com/abstract=3489699LUMS Law Journal 2017: 4(1) for the term
‘Injunctions of Islam’ be put forward. It is suggested here that the standard
definition of the hukm shar‘i11 given by the jurists may be used for this
purpose. Ambiguity on the meaning of the ‘injunctions of Islam’ has resulted in
the Council’s (as well as the Courts’) arguing directly from the Qur’an and the
Sunnah and trying to reinvent the wheel.12 For instance, in Hazoor Bakhsh v
The State, 13 the Federal Shariat Court embarked on demolishing the whole
edifice of criminal law as developed by the jurists and tried to lay its
foundations on an altogether different basis. This attempt has also resulted in
creating laws that face serious problems of analytical inconsistency. Thus, in
Rashida Patel v The Federation of Pakistan, 14 even though the Federal Shariat
Court declared that zina bil jabr (rape) was a form of hirabah, not zina, yet it did
not settle the question of punishment for this offence. It is for this reason that
Ghazali asserts that the first source of law which the mujtahid should consult is
ijma‘ because if the issue is already settled by consensus of the jurists there is
101
no room for re-opening it.15 Salient Features of the Council’s ‘Legal Theory’ A
student of Islamic legal theory will be eager to find answers to some
significaqnt questions, such as: what stance has the Council taken on issues
such as the interrelation of the Qur’an and the Sunnah, 16 the authenticity and
11 Hukm: Rule; injunction; prescription. The word hukm has a wider meaning
than that implied by most of the words of English deemed its equivalent.
Technically, it means a communication from Allah, the Exalted, related to the
acts of the subjects through a demand or option, or through a declaration.
According to this definition, the word hukmincludes obligation-creating laws,
declaratory laws, and even those that may be based upon positive decrees or on
custom. Thus, the meaning is much wider than the “command of the sovereign”
contemplated by John Austin for positive law. See: Sadr al- Shari‘ah
‘Ubaydullah b. Mas‘ud al-Bukhari, al-Tawdih fi Hall Ghawamid al-Tanqih (Dar
al-Kutub al-‘Ilmiyyah, n.d.) 2:122; Abu Hafs Sami b. al-‘Arabi (ed), Irshad al-
Fuhul ila Tahqiq alHaqq min ‘Ilm al-Usul (Dar al-Fadilah, 1421/2000) 1:71-77.
12 An example of this in the context of family law is the creation of the device
of “judicial khula” which is neither divorce nor dissolution in the sense the two
terms are used by the Muslim jurists. For a detailed criticism on this device see:
Imran Ahsan Khan Nyazee, Outlines of Muslim Personal Law (Advanced Legal
Studies Institute, 2012) 94-97. 13 Hazoor Bakhsh v The State PLD 1983 FSC 1.
14 Rashida Patel v The Federation of Pakistan PLD 1989 FSC 95. 15 Abu
Hamid Muhammad b. Muhammad al-Ghazali, al-Mustasfa min ‘Ilm al-Usul
(Dar Ihya’ al-Turath al-‘Arabi, n. d.) 2:205. 16 For instance, does the Sunnah
abrogate the Qur’an or not? Can a khabar wahid (individual narration about a
saying, act or approval of the Prophet) restrict the implications of the general
word of the Qur’an? What is meant by abrogation and restriction? Electronic
copy available at: https://ssrn.com/abstract=3489699Discovering the Law
without a Coherent Legal Theory: The Case of the Council of Islamic Ideology
use of khabar wahid, the meaning and scope of naskh (abrogation), restricting a
general word (takhsis al-‘amm),17 or construing the absolute word as
conditional one (taqyid al-mutlaq) 18 and so forth? If the Council wants to
avoid the problem of analytical inconsistency, which mars many of its
recommendations in almost every one of its reports, the most crucial task for it,
after it has decided on a definition of the injunctions of Islam, is to formulate
principles both for the extraction of these injunctions from the Qur’an and the
Sunnah, and for deciding how the conflicts between these injunctions and
positive laws are to be resolved. The Council, in its interim report, has
elaborated some features of its legal theory in the following words: Shari‘ah
foundations means the Qur’an and Sunnah, which are the sources for finding
the laws. The methods of qiyas and ijtihad are employed to find a law in the
light of these sources when a law is not given in the Qur’an and Sunnah. The
legal position of a law deduced on the basis of qiyas and ijtihad varies,
depending on whether they agree or differ on the validity of a deduced law. The
weakness and the strength of this validity are categorized accordingly into fard,
wajib and Sunnah. 19 This exposition has several serious problems. First of all,
the use of ijtihad is not limited to cases where the rule is not found in the texts
102
of the Qur’an and the Sunnah; ijtihad is also used for interpreting and
elaborating the rules found in the texts.20 Secondly, how can one have recourse
to ijtihad or qiyas in case the rule is not found in the Qur’an and the Sunnah,
when the Council has already declared that only these two constitute the
sources for Islamic laws? The meaning of ijtihad as the use of ‘personal
opinion’ by the 17 The Hanafi theory requires that the restricting evidence must
be definitive like the general word, while the Shafi`i theory deems the general
word probable and thus allow its restriction through a probable evidence. See
for details: Abu ’l-Wafa’ al-Afghani (ed), Tamhid al-Fusul fi ’l-Usul
(hereinafter, Usul al-Sarakhsi) (Dar al-Kutub al-‘Ilmiyyah, 1414/1993), 1:132-
151. 18 As the absolute (mutlaq) and the restricted (muqayyad) both are forms
of the specific (khass) evidence, the Hanafi theory disallows construing the
absolute as restricted, unless definitely proved so. As opposed to this, the
Shafi‘i theory presumes that the absolute shall be construed in the light of the
restricted, unless proved otherwise. See for the arguments of both sides: Usul
al-Sarakhsi, 1:266-270 and Ghazali, al-Mustasfa, 2:70-72. 19 CII, Final Report
on Reforms in the Hudood Laws, 14. 20 In the parlance of Islamic law, this is
called bayan. See Usul al-Sarkhasi, 2:26-53; Ghazali, al-Mustasfa, 1:238-244.
Journal 2017: 4(1) mujtahid would not be acceptable, for it would amount to
giving him the status of the lawgiver.21 Thirdly, the strength or weakness of a
rule derived on the basis of qiyas does not depend on the agreement or
disagreement of the mujtahidin but on the strength of the two premises on
which a qiyas is based: the first premise pertains to the ratio or active cause
(‘illah) of the rule and the second one is concerned whether the same ratio is
found in the new case. Hence, if the two premises are definitive (qat‘i), the
qiyas will also be definitive; and if any one of these premises is probable
(zanni), the qiyas will also be probable. 22 Finally, the categorization of the
obligationcreating rules (hukm taklifi) into fard, wajib or Sunnah, is not brought
about by the weakness or strength of the qiyas or ijtihad which is used to derive
the rule, but on the definitive or probable nature of the authority (dalil) and the
binding or non-binding nature of the command. Moreover, this categorization is
not limited to laws derived by qiyas and ijtihad only, but applies to laws clearly
given in the texts as well.23 Conflation or Choosing Principles from Various
Schools Following the general trend of the modern Muslim scholars, the
Council has generally accepted the proposition of ‘common legal theory’, it has
generally preferred to pick and choose from the various schools those principles
which suited the call for ‘reason’ and ‘discretion’. Here, four important
principles of the legal theory of the Council – if it can be called a legal theory –
are analyzed, namely, al-ibahah al-asliyyah (the presumption of permissibility),
qiyas (analogy), istihsan (generally equated with ‘equity’) and maslahah
(generally translated as ‘public interest).24 The purpose is to show that these
principles are of little help in creating room for discretion. Hence, these critics
are compelled to abandon even these principles and instead rely on naturalist
argument of the use of discretion based on reason. The Presumption of
Permissibility 21 On Lawgiver (al-Shari‘), see: Shawkani, Irshad al-Fuhul,
103
1:78-83. It was to avoid this error that the jurists decided, as a principle, that for
exercising analogy, an exact match must be found in the texts called the maqis
‘alayh (that with which the analogy is being made). Similarly, it has been
decided, as a principle, that for all the different modes of ijtihad, the basis must
also be present in the Qur’an and the Sunnah. Ghazali, al-Mustasfa, 2:149. 22
Shawkani, Irshad al-Fuhul,1:71-77. 23 See for more detailed criticism:
Muhammad Mushtaq Ahmad: Hudud Qawanin: Islami Nazriyati Konsil ki
Uburi Report ka Tanqidi Ja’izah (Midrar al-‘Ulum, 2006) 12-39. 24 See the
discussion on on ‘source material’ used by the Council: Final Report on
Reforms in the Hudood Laws, 14. Electronic copy available at:
Legal Theory: The Case of the Council of Islamic Ideology The general
practice of the courts as well as of the Council, as candidly shown in its Report,
has been to treat everything permissible if no explicit text of the Qur’an or the
Sunnah is found prohibiting it.25 The fact remains that something may not be
against the explicit text, yet it may be conflicting with the general principles
and the purposes (maqasid) of Islamic law. The presumption of permissibility –
expressed by the jurists as ‘the original rule for all things is permissibility’26 –
does not have enough strength for becoming the basis of new legislation, or for
changing the structure of the established norms of Islamic law. First, this
presumption is not widely accepted by the jurists. The celebrated Shafi‘i jurist
Jalal al-Din al-Suyuti asserts that the Hanafis apply the presumption of
prohibition, instead of permissibility.27 The reason for this is that the Hanafis
resort to the general principles of law when they come across something about
which the texts are apparently silent. Still when they do mention this
presumption as a hypothetical possibility, they consider it as having been
derived from the following verse: ‘It is He Who hath created for you all things
that are on earth’.28 Second, the large number of exceptions to this presumption
renders it impossible to consider it as a general principle. Thus, the jurists
unanimously agree that the presumption about rituals is of prohibition.29 The
same is true of forming sexual relationship with a woman,30 taking of a human
life31 and eating the meat of a slaughtered animal.32 Similarly, many other
prohibitions have greatly limited the scope of this presumption of
permissibility. Third, one may argue further that since Adam, peace be upon
him, in addition to being the Father of all mankind, was a prophet, human
beings have had recourse to revelation ever since the very beginning. It follows
that 25 The Federal Shariat Court in Ansar Burney v The Government of
Pakistan PLD 1983 FSC 73, declared on the basis of the presumption of
permissibility that a woman could become a judge in all cases. The Court did
not even bother to consider the question that eligibility for a post requires
positive evidence from the law and it cannot be decided on the absence of
negative evidence. 26 Jalal al-din al-Suyuti, al-Ashbah wa ’l-Naza’ir (Dar Ihya’
al-Kutb al-‘Arabiyyah, 1959) 66. 27 Ibid. 28 Qur’an 2:29. 29 Suyuti, al-Ashbah
wa ’l-Naza’ir, 66. 30 Ibid. 31 Muhammad b. Abi Bakr Ibn Qayyim Al-
Jawziyah, Ahkam Ahl al-Dhimmah (Dar alKutub, al-‘Ilmiyyah, 2002) 1:25. 32
Ibid. Electronic copy available at: https://ssrn.com/abstract=3489699LUMS
104
Law Journal 2017: 4(1) some things must necessarily have been prohibited
from the very start.33 Hence, the presumption that in the absence of any text
everything is permissible is not tenable. If one still insists on accepting this
presumption as a general principle, the question remains as to whether it is a
good tool for Islamizing Pakistani law?34 Qiyas (Analogy) Critiques on the
hudud laws have been accompanied by suggestions coming forward from some
‘experts’ of the need for qiyas and personal opinion. Some commentators, for
example, have declared that the nisab35 for the hadd of sariqah (theft) is very
meager and that the amount should be raised.36 Then there are those who have
tried to fit in rules from other areas of law into the hudud. 37 Many such
examples are found even in the CII Final Report. 38 Hence, it may not be out of
place to discuss the position of the Muslim jurists on the use of analogy in cases
of hudud. As a starting point, the Hanafi jurists do not apply qiyas to each and
every legal issue. For instance, the number of sijdah (kneeling prostration) in
every unit (rak‘ah) of prayer being two, this fact cannot be subjected to qiyas so
that the number of ruku‘ (standing prostration) should be made two as well.
Like these rituals, the hudud concern what are called the rights of God (huquq
Allah) 39 which are not to be subjected to personal opinion or qiyas. 33 Usul al-
Sarakhsi, 2:20. 34 Some ‘legal experts’ are of the view that only 5% of the laws
in Pakistan need to be Islamized and there is nothing un-Islamic about the rest.
This is, again, equating nonrepugnancy with conformity. Is that really the case?
See for a criticism on this view: Imran Ahsan Khan Nyazee, Theories of Islamic
Law: The Methodology of Ijtihad (Islamic Research Institute, 1994), 293-30;
idem, Islamic Jurisprudence (Islamic Research Institute, 2000) 239-240, 325-
353. 35 Nisab: ‘The minimum scale provided for an area of the law’. For zakah
and theft, for example, it is a minimum amount of wealth that imposes liability.
36 Muhammad Tufail Hashmi, Islami Ta‘limat ki Roshni men Hudud
Ordinance ka Ik Ja’izah (Peshawar: National Research and Development
Foundation, 2005). 37 Ibid, 111-115. 38 CII, Final Report on Reforms in the
Hudood Laws, 14. 39 The concept of the Right of God signifies the immutable
sphere of Islamic law. (See for details: Usul al-Sarakhsi, 2:289-90.) At times,
the concept is also used for ‘God-given’ rights to individuals because they are
also ‘inalienable’. (Nyazee, Theories of Islamic Law, 115-116. See for more
details: Imran Ahsan Khan Nyazee, ‘Islamic Law and Human Rights’ (2003)
Islamabad Law Review 13-63.) However, in the context of hudud and ta‘zir,
this concept primarily signifies that no human authority can suspend this
punishment. There are Electronic copy available at:
Legal Theory: The Case of the Council of Islamic Ideology Thus, the
Companions of the Prophet (peace be on him) disagreed among themselves
regarding the punishment for sodomy. Abu Hanifah inferred from this
difference of opinion that the Companions did not hold sodomy as zina for if
they regarded it as zina, they would not have differed concerning its
punishment. Sarakhsi explains the principle of Abu Hanifah in the following
manner: The Companions agreed that this act [sodomy] is not zina as they were
cognizant of the text for zina and yet they disagreed as to what punishment this
105
act made the perpetrator liable to. It is established that they would not practice
ijtihad in the presence of a text. This proves their agreement on sodomy not
being zina and inapplicability of the hadd of zina to it. Hence, this act is a crime
which does not have a prescribed punishment in the shari‘ah. However, it is
certain that it does call for punishment. The question as to what should be the
punishment falls within the ambit of siyasah which is to be left to the discretion
of the ruler. If he holds an opinion regarding this matter, he is entitled by the
shari‘ah to implement it.40 Similarly, punishments cannot be established by
qiyas alone; there has to be a text, as creating an offence on the basis of analogy
in the absence of a text amounts to ex post facto creation of the offence.41
Neither may rules be gleaned from the other areas of law and superimposed on
the hudud using qiyas. Sarakhsi has given some important principles here:
Punishment cannot be established by qiyas; there has to be a text. 42 There is
no place for qiyas in determining the amounts in hudud. Nothing can be added
by qiyas to [what is given in] the text. 43 other important legal consequences
related to this concept. See for details: Nyazee, General Principles of Criminal
Law: Islamic and Western (Advanced Legal Studies Institute, 1998). 40 Abu
Bakr Muhammad b. Abi Sahl al-Sarkhasi, al-Mabsut, ed. Hasan Isma‘il al-
Shafi‘i (Dar al-Kutub al-‘Ilmiyyah, 1421/2001), 9:91. 41 This is a necessary
corollary of ‘the principle of legality’ – nulla peona sine lege (no punishment
without law). See for a detailed discussion: Nyazee, General Principles of
Criminal Law, 75-83. 42 Sarakhsi, al-Mabsut, 24:165. 43 Ibid, 16:132.
Journal 2017: 4(1) Obligatory amounts cannot be determined by personal
opinion. As there is no text available to us [here], the best course to follow is to
relegate the matter to the ijtihad of the ruler. 44 Similarly, the nisab also cannot
be determined by personal opinion or qiyas but has to be based on the text.
However, where no text is present, the ruler may determine it.45 In the same
way, no condition may be added to or retracted from the hudud on the strength
of one’s personal opinion. Istihsan (Juristic Preference) The term Istihsan in
Islamic law should not be confused with ‘equity’ of English jurisprudence.46
Historically, English ‘common law’ was based on traditional customs and, as it
was not made to change in order to meet the demands of newer ages, it
stagnated and was unable to satisfy the public demand for justice. People
increasingly felt that the law was inadequate for their needs.47 People began
petitioning the king. The king, being the ‘Fountain of Justice,’ would redress
the grievance using his own ‘discretionary sense of justice.’ As more people
turned to the king for justice, he delegated the authority of the use of discretion
to the Lord Chancellor who would administer justice on the king’s behalf. As
the burden mounted still further, special courts had to be constituted in different
regions of the realm. These came to be known as ‘Chancery Courts’, and later
‘Equity Courts’. The continual practices of these courts led to the development
of their own special principles which were referred to as ‘principles of equity’.
These included many novel principles and ways of doing things. The important
fact to keep in mind here is that the reason for the formation of these courts was
the periodic stagnation of common law. 44 Ibid, 10:60. 45 Ibid, 2:189. 46 See,
106
for instance: Muhammad Hashim Kamali, Equity and Fairness in Islam (Islamic
Texts Society, 2005). As meticulous a research scholar as the worthy Mahmood
Ahmad Ghazi has considered Istihsan to be synonymous to equity, even though
he mentions differences between the two concepts. Muhadarat-e-Fiqh (Lahore:
al-Faisal Publishers, 2005) 102. The Council also preferred to use the phrase
‘the laws of justice and fairness’ for this purpose. CII, Final Report on Reforms
in the Hudood Laws, 161. 47 In many cases they would claim a right but the
law would not recognize it and where it did recognize it, no adequate remedy
was available to avail the right. Sometimes, where the law did furnish some
remedy, it would not be to the satisfaction of the claimants. The law had simply
ceased to be in touch with the times and made it appear increasingly unjust to
the people. See for details: Graham Virgo, Principles of Equity and Trusts
(Oxford University Press, 2012). Electronic copy available at:
Legal Theory: The Case of the Council of Islamic Ideology Islamic law, on the
other hand, never faced such problems. Equating qiyas with common law and
Istihsan with equity implies that the jurists deviated from the established rule of
Islamic law, thinking it was too stringent, and instead came up with a ‘better’,
more just rule, using the principles of natural justice; and that this process was
called Istihsan because it was an improvement upon the original rule. If this is
true, then Shafi‘i jurists were right to condemn it and assert: ‘Whoever practices
Istihsan assumes the role of the Lawgiver’.48 The Hanafis, who accept Istihsan
as a valid means of extracting legal rules, consider it a mechanism for ensuring
harmony and analytical consistency within the law. If something appears
prohibited in the light of the general principles of law, but has been explicitly
permitted by one of the texts, the Hanafis take the position that it is permissible
as an exception to the general principle. They use the formula: ‘prohibited
under qiyas but permissible under istihsan’ for this purpose. Exceptions to the
general principles are made on the basis of the text, consensus, necessity or
some other ‘concealed principle’ (qiyas khafiyy). Sarkhasi is worth quoting
here: This [istihsan] is the evidence coming in conflict with that apparent
principle (qiyas zahiri) which comes into view without one’s having looked
deep into the matter. Upon a closer inspection of the rule and the resembling
principles, it becomes clear that the evidence that is conflicting with this
apparent principle is stronger and it is obligatory to follow it. The one choosing
the stronger of the two evidences cannot be said to be following his own
personal caprices.49 Another important point made by Sarakhsi is that when the
jurist uses istihsan and prefers the stronger rule, he abandons the weaker one
and as such it is not permissible for him or his followers to follow the latter.50
He goes on to explain that when Istihsan is carried out on the basis of a
concealed principle (qiyas khafiyy), the established rule does not amount to an
exception but becomes a general principle in itself.51 48 Ghazali, al-Mustasfa,
1:213. 49 Usul al Sarkhasi, 2:200-202. 50 Ibid. 51 Ibid, 206. Electronic copy
available at: https://ssrn.com/abstract=3489699LUMS Law Journal 2017: 4(1)
Maslahah (Protecting the Objectives of the Law) Contemporary scholars,
including those who prepared the draft of the CII Report,52 have generally
107
equated maslahah with the principle of ‘utility’ expounded by Jeremy Bentham
(d. 1832),53 apparently because literally maslahah means ‘acquiring benefit or
repelling harm (jalb al-manfa‘ah aw daf‘ al-madarrah)’. 54 The technical
meaning of maslahah by virtue of which it becomes an accepted principle of
Islamic law has been explained by Ghazali in the following words: As for
maslahah, it is essentially an expression for acquiring benefit or repelling harm,
but that is not what we mean by it because acquiring benefit or repelling harm
represents human goals, that is, the welfare of human beings through the
attainment of these goals. What we mean by maslahah, however, is the
preservation of the objective of the law (almuhafazah ‘ala maqsud al-shar‘).55
Although Ghazali is considered the foremost expositor of the principle of
maslahah, yet it may surprise many that he places maslahah in the category of
al-usul al-mawhumah, that is, ‘uncertain principles’. He gives reasons for doing
this: This is among the uncertain principles and whoever considers it as a fifth
source is mistaken. This is because we linked maslahah to the objectives of the
law (maqasid al-shari‘ah), which are known by the Book [Qur’an], the Sunnah
and consensus. Thus, a maslahah which cannot be linked to an objective
derived from the Qur’an, the Sunnah or consensus, and is of those alien
interests (al-masalih al-gharibah) which are not compatible with the
propositions of the law (tasarrufat al-shar‘), is void and abominable. Whoever
uses such interests assumes the position of the Lawmaker, just as whoever
presumes a rule on the basis of his personal 52 See, for instance, Final Report
on Reforms in the Hudood Laws, 147. 53 Bentham’s Of Laws in General
greatly influenced his student John Austin and other legal philosophers. See for
a detailed critical analysis of his views and particularly the way he uses the
principle of utility in criminal law: H. L. A. Hart, Essays on Bentham: Studies
in Jurisprudence and Political Theory (Clarendon Press, 1982). 54 Ghazali, al-
Mustasfa, 1:216. 55 Ibid, 1:216-217. Electronic copy available at:
Legal Theory: The Case of the Council of Islamic Ideology preference
(istihsan) 56 assumes the position of the Lawmaker.57 Thus, from the
perspective of compatibility with the objectives of Islamic law, maslahah may
be divided into three categories:58 the one proved compatible (maslahah
mu‘tabarah), the one proved incompatible (maslahah mulghah),59 and the one
which is neither proved compatible nor incompatible (maslahah gharibah).60
The first of these, the ‘compatible interests’, are acknowledged by Islamic law
either at the level of a specie (naw‘) or at the level of a genus (jins).61 Ghazali
explains that qiyas is nothing but extending the law to a new case on the basis
of an interest acknowledged at the level of specie.62 He further explains that
the law can be extended to some new cases on the basis of an interest
acknowledged at the level of genus, calling it maslahah mursalah, provided
three conditions are fulfilled: 56 Shafi‘i rejected the principle of Istihsan
considering it to be a way of following personal whims. As already explained
above, the Hanafi principle of istihsan is absolutely different from this. Ghazali
also acknowledges that the explanation of istihsan by the great Hanafi jurist
Karkhi is acceptable to him asserting that if this is what is meant by istihsan he
108
could only object to its title! (al-Mustasfa, 1:215-16.) Sarakhsi explains that
even the title istihsan is not objectionable. (Usul al-Sarakhsi, 2:199-200) 57
Ghazali, al-Mustasfa, 1:222. 58 Ibid, 1:216. 59 The example given by Ghazali
is that of the fatwa (legal verdict) given by a jurist to a rich person who had
intentionally broken his fast and had sought the verdict about expiation. The
jurist had told him that he was supposed to keep fast for sixty consecutive days,
although the text of the tradition about expiation puts it on the third number in
the priority list: manumission of a slave; feeding sixty needy people; fasting for
sixty days. The argument forwarded by this jurist was that the purpose of
expiation was to deter the lawbreaker from breaking it again and as the person
was rich the first two forms of expiation could not achieve the purpose! Ghazali
and other jurists deem this line of reasoning flawed and consider this presumed
“Maslahah” as mulghah because it goes against the text (Ibid.). In other words,
the Maslahah determined by God cannot be defeated by the Maslahah presumed
by human beings. 60 Ghazali says that the example of this kind of Maslahah is
difficult to find. Hence, he came up with the hypothetical example of a situation
of war in which all Muslims were facing a definite death if they would not kill
the few Muslims whom the invading enemy had taken as shields (Ibid, 1:218).
It must be noted here that the choice is not between saving a few Muslims on
the one hand or more Muslims on the other; rather, it is between saving a few
Muslims or saving all. Thus, the choice was between juz’ (part) and kull
(whole), not between qalil (few) and kathir (more). That is why Ghazali goes
into great details in order to find out the Maslahah upheld by the Lawgiver in
this situation (Ibid.). 61 Ghazali, al-Mustasfa, 1:222. 62 Ibid. Electronic copy
available at: https://ssrn.com/abstract=3489699LUMS Law Journal 2017: 4(1)
That the new principle does not conflict with any text (nass) or modifies its
implications; That the new principle does not conflict with the general
propositions of the law, i.e., the existing principles and rules of the system; and
That the new principle is not alien (gharib) to the system,63 i.e., it finds a basis
in the system.64 An alien principle cannot be accommodated in the legal
system, unless it fulfills three further conditions:65 It is related to any of the
five primary objectives of the law (darurat), i.e., it must aim at preserving and
protecting religion, life, progeny, intellect or wealth; It is definitive (qat‘i), i.e.,
it must certainly lead to the preservation and protection of the above-mentioned
objectives; and It is absolute (kulli) i.e. it must concern the whole of the Muslim
ummah and not be limited to a certain group or individual. Hence, it is
impossible to pick at will concepts and principles from other legal systems and
‘transplant’ them in the Islamic legal system. The compatibility test is
necessary. These conditions clearly show the limits of personal opinion and
discretion in Islamic law. This issue also leads us to examine in a little detail the
approach of those advocating reason untied to legal text, a pure form of
naturalism manifest in the work of many of the contemporary Muslim scholars,
including those who drafted the Report of the Council. The Naturalist
Argument The analysis in the previous Section establishes that modern Muslim
scholars, including the drafters of the Council’s Report, have not followed 63
Ibid, 1:217. 64 Ibid, 1:218. 65 Ibid, 1:222. Ghazali then discusses various
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hypothetical examples to explain these three conditions. In each of these
examples one of the conditions is missing. These examples are not only
illustrative of the genius of that great jurist-cum-philosopher but also of the
simplistic approach which many modern scholars have adopted towards this
issue. Electronic copy available at:
Legal Theory: The Case of the Council of Islamic Ideology the legal theory of a
particular school, nor have they come up with a coherent theory of their own.
They have, instead, chosen those principles from various schools which they
consider helpful in giving more room to discretion. This section explains how
this approach, directed at Islamic criminal law, draws from the ‘naturalist’
argument. It calls for considering ‘reason and nature’ (‘aql-o-fitrat) as the basis
for ijtihad and, thus, wants to get rid of the stringent conditions laid down by
the jurists.66 If accepted, this approach will demolish the whole edifice of the
legal system developed by centuries of legal scholarship and will leave
everything to the unbridled discretion of the modern ‘sovereign’ state.
Commonsense, Nature and Ijtihad Those calling for reforms in Islamic law
generally, and critics of Islamic criminal law particularly, come up with the
‘naturalist’ argument when they talk of ijtihad. 67 The call for the use of
‘commonsense’, ‘reason’ and ‘natural instincts’ for discovering the rules of
Islamic law or for extending the law to the new cases is, in fact, based on the
concept of natural law. Javed Ahmad Ghamidi (b. 1951), an exponent of this
approach who headed the Council’s legal committee when it deliberated on
reforming the hudud laws, 68 writes: The shari‘ah concerns itself only where
reason has erred or is liable to err; such as the few laws relating to economics,
politics, society and etiquettes. There are only five crimes of hudud and ta‘zir
for which a fixed penalty has been determined. Everything else has been left to
human reason.69 Defining the scope of ijtihad, Ghamidi says: ‘This [ijtihad]
means that where the Qur’an and the Sunnah are silent, reason and nature (‘aql-
o-fitrat) should be consulted. This is what is really meant by ijtihad’.70 Amin
Ahsan 66 See for the ‘themes’ of the ‘International Consultative Workshop’
conducted by the Council for the purpose of suggesting reforms in the hudud
laws: CII, Final Report on Reforms in the Hudood Laws, 125-26. One of the
themes of the Workshop was: ‘public interest, public reason’. Ibid, 126. 67
Effects of this approach are found in the CII Report too. The concept of ‘natural
law’ is summarized by H. L. A. Hart (d. 1992), well-known legal positivist, in
these words: “there are certain principles of human conduct, awaiting discovery
by human reason, with which man-made law must conform if it is to be valid.”
The Concept of Law (Clarendon Press, 1961) 186. 68 CII, Final Report on
Reforms in the Hudood Laws, 160. 69 Javed Ahmad Ghamidi, Ijtihad Ki
Zarurat awr Ahmiyyat (August 2000) Monthly ‘Ishraq’ Lahore 44-45. 70 Ibid,
44 (Emphasis added). Electronic copy available at:
https://ssrn.com/abstract=3489699LUMS Law Journal 2017: 4(1) Islahi (d
1997), teacher of Ghamidi, better known for his peculiar thesis of coherence in
the Qur’an (nazm-i-Qur’an),71 explaining his position that ‘the most obvious
realities of nature’ (badihiyyat-i-fitrat) are part of the Divine law, says: [The
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verse of the Qur’an] ‘You may approach them [your wives] in the manner as
Allah commanded you’ (Al-Quran 2:222), makes it clear that all the most
obvious realities of nature fall within the commands of Allah and form part of
the shari‘ah, even though these have not been expressly stated. For example, we
have not been ordered to take our food through our mouths and neither through
our noses or eyes, but this is something that has been decreed by Allah as He
has fashioned us in such a way. One going against this [not expressly stated]
ordinance, goes against Allah’s clear, or rather most manifest, law and will be
liable to His punishment. We have called it as ‘most manifest’ because Allah
has left such matters solely to our nature, which is needless of any guidance
respecting them.72 This is exactly how the ‘religious’ naturalists approach this
issue.73 Religious Naturalists and the ‘Neo-Mu‘tazilah’ John Austin (d. 1859),
the famous English jurist of the nineteenth century, sums up the thesis of the
proponents of this view: Of the divine laws, or the laws of God, some are
revealed or proclaimed, and others are unrevealed. Such of the laws of God as
are unrevealed are not infrequently denoted by following names and phrases:
‘the law of nature’ ‘Natural Law’; ‘the law manifested to man by the light of
nature or reason’… Paley and other divines have proved it beyond a 71 See for
details about this theory: Mustansir Mir, The Coherence in the Qur’an: A Study
of Islahi’s Concept of Nazm in Tadabbur-i-Qur’an (The American Trust
Publications, 1987). See for an overview of the life and work of Islahi: Akhtar
Husayn `Azmi, Mawlana Amin Ahsan Islahi: Hayat-o-Khidmat (Nashriyyat,
2009). 72 Amin Ahsan Islahi, Tadabbur-i-Qur’an (Faran Foundation, 2001),
1:526 (Emphasis added). 73 For detailed analysis of the views of the famous
Christian theologian Thomas Aquinas (d. 1274) about natural law being part of
the Divine law, see: N. Kretzmann and E. Stump (eds.), The Cambridge
Companion to Aquinas (Cambridge University Press, 1993). Electronic copy
available at: https://ssrn.com/abstract=3489699Discovering the Law without a
Coherent Legal Theory: The Case of the Council of Islamic Ideology doubt,
that it was not the purpose of revelation to disclose the whole of these duties.
Some we could not know, without the help of revelation; and these the revealed
law has stated distinctly and precisely. The rest we may know, if we will, by the
light of nature and reason; and these the revealed law supposes or assumes. It
passes them over in silence, or with a brief and incidental notice.74 The
Mu‘tazilah in the early Islamic history approached Islamic law in a similar way,
asserting that goodness or badness is an inherent quality of acts which can be
discovered by reason.75 The ‘neo-Mu‘tazilah’, as they should be called, have
the same view. Thus, Islahi asserts: ‘It would be incorrect to think that
difference between the good or evil of a thing is merely an acquired
characteristic, and does not have any reasonable, ethical or natural grounds. To
consider such is nothing less than sophism’.76 The vast majority of Muslim
scholars, however, have historically supported the opposing view; that the good
or evil of something is not to be determined by reason but through the dictates
of the shari‘ah; as reason is liable to err in recognizing good and evil, it cannot
be taken as a standard. 77 Even if it is admitted that reason can identify the
goodness or badness of an act, the question remains: how does a declaration of
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reason in a particular case acquire the status of law? To put it in the shari‘ah
terminology, how does it become a hukm shar‘i. It is for this reason that jurists
explicitly defined the hukm shar‘i as the address of the Lawgiver.78 The same
debate is found among Western legal philosophers. The positivists take the
view that the ‘positive law’ is valid and binding irrespective of the moral
considerations about its goodness or badness, while the naturalists take the view
that an immoral law is no law as it violates the superior natural law.79 For
Oliver Wendell Holmes, the famous judge of the US Supreme Court, arguing
on the basis of the dictates of nature is nothing but ‘ominous brooding in the
sky’.80 74 John Austin, The Province of Jurisprudence Determined, ed. Wilfrid
E. Rumble (Cambridge University Press, 1995) 38-39. 75 Ghazali, al-Mustasfa,
1:59-66; Shawkani, Irshad al-Fahul, 1:78-83. 76 Islahi, Taddabbur-i-Quran,
3:194. 77 Ghazali, al-Mustasfa, 1:59-66; Shawkani, Irshad al-Fahul, 1:78-83. 78
Shawkani, Irshad al-Fahul, 1:71-77. 79 Sean Coyle, From Positivism to
Idealism: A Study of the Moral Dimensions of Legality (Ashgate, 2007). 80
Nyazee, Islamic Jurisprudence, 87. Electronic copy available at:
https://ssrn.com/abstract=3489699LUMS Law Journal 2017: 4(1) Where the
Law is Silent A question arises here: if the naturalist argument is rejected, how
are the gaps in the law to be filled? How is the law extended to novel cases?
Muslim jurists discuss an interesting aspect of this issue by framing the
question: what was the rule for various acts before the advent of the revelation?
Ghazali asserts that at that stage acts were legally neither permissible nor
prohibited. This is because permissibility and prohibition both are forms of
hukm shar‘i, which requires the address from the Lawgiver.81 Hence, the rule,
according to Ghazali, was tawaqquf, i.e. waiting for revelation. After the advent
of revelation, it alone is the standard for determining the goodness or badness of
an act.82 But what is to be done for matters where the shari‘ah outwardly seems
silent? Obviously, tawaqquf is no more the option. Ronald Dworkin (d. 2014),
the famous American jurist, calls such issues as hard cases. These are cases
where the law is apparently silent or where the rule apparently violates an
established principle of law.83 Dworkin has shown, with considerable force,
that for hard cases, the judge relies on the general principles of law rather than
his own discretion.84 The same is the approach of Hanafi jurists. Nyazee,
explaining the position of Hanafi jurists, asserts: ‘Once revelation has come,
such laws may only be discovered in the light of revelation, because revelation
does not pass them over in silence; it indicates them through general principles’.
85 For covering new cases, newer principles can be formulated, provided it is
done in accordance with the standard procedure for ensuring the compatibility
of the new principles with the existing legal norms. This is what the Hanafi
methodology is all about.86 Conclusions Critics of Islamic criminal law have
generally relied on the naturalist argument presuming that human reason may
singly be used as a source for 81 Ghazali, al-Mustasfa, 1:66-67. 82 Ibid, 67 and
76. 83 Ronald Dworkin. ‘Hard Cases’ (1975) Harvard Law Review 1057-1109.
84 The issue has implications for the debate whether the judges make the law or
merely discover it. See for a detailed discussion: Muhammad Munir, Are
Judges Makers or Discoverers of the Law: Theories of Adjudication and Stare
112
Decises with Special Reference to Pakitan 11 (2013) Annual Journal of the
International Islamic University Islamabad 7-39. 85 Nyazee, Islamic
Jurisprudence, 85 (Emphasis added). 86 See for details about the methodology
of Hanafi jurists: Nyazee, Theories of Islamic Law, 147-176 and 189-230.
Electronic copy available at: https://ssrn.com/abstract=3489699Discovering the
Law without a Coherent Legal Theory: The Case of the Council of Islamic
Ideology judging the goodness or badness of an act. While this approach may
have led to moral criticism of the positive laws in the West, it has certainly
caused serious problems for those who believe in the divinity of Islamic law, as
it results in a conflict between reason and revelation. Critics have also found it
better to take help from some principles of the various schools of Islamic law
which in their opinion created room for discretion. They have also been trying
to distinguish between ‘shari‘ah’, which is Divine, and ‘fiqh’ which is human
effort, and then asserting that ‘very few’ issues have been touched by
revelation, which has left the rest of the issues to reason. Thus marginalizing
and undermining the rich legal heritage of fourteen hundred years, these critics
have called for what amounts to demolishing the whole legal edifice of Islamic
law. Serious students of Islamic law need to elaborate the approach of the
jurists who negate the basic presumptions of the ‘neoMu‘tazilah’. Electronic
copy available at: https://ssrn.com/abstract=348969
The Council of Islamic Ideology (CII) in the 1973 Constitution: Background,

Structure and Performance  Fakhr-ul-Islam  Khan Faqir Abstract
Islamization of laws has been a very hot topic in Pakistan. In all the three
constitutions of Pakistan including the 1973 constitution, certain institutions or
bodies were provided for. The aim of these bodies has been to scrutinize
existing laws in Pakistan and help the parliament in connection with new
legislation. In the 1973 constitution, the institution to which the task of
Islamization of laws has been assigned is provided in Part-IX of the
constitution. The institution called Council of Islamic Ideology (CII) spreads
over five articles, ranging from Article 227 to 231. Of these articles, Article 230
gives functions of the Council. The main theme of this paper would be to see
whether the CII effectively performing the above functions or otherwise?
Moreover what should be done for making it an effective constitutional body?
The proposed contents would be: Functions assigned to the council, Strength,
appointment of members and chairman, its reports and conclusion. Key words:
Islamization, Constitution, CII, Islamic injunctions Introduction: Islamization of
law has been a hallmark of constitutional development in Pakistan. The
adoption of Objectives Resolution on 12th March 1949 by the first Constituent
Assembly was the first step to that direction. Constitutional experts term the
adoption of the Objective Resolution admirable development. The resolution
reinforced that sovereignty over the entire universe belonged to Allah Almighty
alone and the authority which He had delegated to the State of Pakistan through
its people for being exercised within the limits prescribed by Him, was a sacred
trust. Besides, the objectives resolution guarded the principles of freedom,
democracy, equality, tolerance and social justice as pronounced by Islam. The
resolution also pledged to protect fundamental rights and defend the legitimate
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interests of minorities and backward classes. The Objective Resolution was like
a building plan architected for the upcoming constitution of Pakistan. To
proceed further in the matter, and chalk out various details of the future
constitution, a committee called, the Basic Principles Committee (BPC) was
appointed by the Constituent Assembly on the same day. Mulavi Tameezuddin,
the President (Speaker) of the constituent Assembly was designated as
chairman of the BPC. When the BPC started its work, it constituted few other
subcommittees regarding the structure of federation, provinces, and the
distribution of powers, franchise and judiciary. The BPC was aware of the place
of Islam in the constitution making of Pakistan. So it recommended for the
formation of a board, the one which could advise the BPC on issues arising viz-
a-viz Islamization. (Riaz, Constitutional and Political Development in Pakistan
1951-54, 1951, p. 7) The work of BPC and initial reports submitted by it were
marred by criticism from various quarters. The Ulama criticized its religious
content and termed it inadequate. It was generally believed that Ulama may not
agree on a single constitutional formula, but they surprised many when they met
in the capital of Pakistan, Karachi during 21-24 January  Professor and
Director at Pakistan Study Centre University of Peshawar.  Assistant
Professor at Pakistan Study Centre University of Peshawar.Jan-June, 2020 The
Council of Islamic Ideology (CII) in the 1973 Constitution: Background,
Structure and Performance Peshawar Islamicus Vol:11, Issue 1 56 1951.
Notable religious scholar Sayyid Suleman Nadwi presided over the convention.
The convention agreed upon a formula spreading over 22 points.
(https://historypak.com/ulamas-22-points/ accessed on 24th April 2019) 1.
Sovereignty over all the universe and laws is reserved only for Allah al-mighty.
2. The basis of all laws are the Holy Quran and Sunnah of the Prophet (Peace be
upon him). All such laws which are in contravention to the Holy Quran and
Sunnah of the Prophet (Peace be upon him) will be abrogated. 3. Instead of
establishing a state on geographical, racial or linguistic or other considerations,
it will be based on Quran and Sunnah and to prohibit those forbidden by it.
Beliefs of various sects to be taken into consideration while reviving or
establishing Islamic customs, practices and law. 4. It was proposed that
Pakistan, being an Islamic state, should strengthen its relations and fraternity
with the Muslim world. 5. The Ulama asked the state to provide basic needs to
the citizens especially to those who cannot earn. These facilities should be
provided to them without any discrimination on the basis of religion, race or
creed. 6. As for the fundamental rights of citizens, it was proposed that rights
such as freedom of religion, worship, expression, assembly and movement, as
well as protection of life and property be guaranteed. 7. These fundamental
rights may not be snatched from citizens except under the law of Islam. In this
connection, due process of law should be observed. 8. All Muslim sects and
denominations should be given opportunity to enjoy their religious freedom
within the limits of law. Their education and personal law should be protected.
9. A similar freedom of professing religion and acting upon their personal law
should be ensured for non-Muslim citizens of the State in respect of their
religion, education and culture. 10. All those agreements which are signed with
114
non-Muslim countries will be honored and non-Muslims should be granted
fundamental rights. 11. Head of State must be a Muslim. He must be a male
citizen of Pakistan. 12. The Head of State should source of all powers and
authority. He may delegate his authority to any other functionary or institution.
13. The Government should adopt consultative character and should not resort
to dictatorial tactics. The Head of the State exercise his powers in consultation
with the elected members of the assemblies. 14. The Head of the State should
not be given power to abrogate the whole or part of the Constitution.Jan-June,
2020 The Council of Islamic Ideology (CII) in the 1973 Constitution:
Background, Structure and Performance Peshawar Islamicus Vol:11, Issue 1 57
15. The Electoral College for electing the Head of the State must have the
power also to remove or suspend him. 16. No immunity should be enjoyed by
Head of the State. He may be tried by any court of law in a manner as other
citizen are tried. 17. Besides making ordinary citizens accountable and treated
by law, the government and its functionaries should also be treated like that. 18.
Judiciary must be independent and free from any influence of the executive. 19.
No concept and ideology contrary to the fundamentals of Islam be propagated
20. There should be unitary form of government in Pakistan. No tribe, race and
ethnic group should be given a chance to secede Constitution must be based on
Quran and the Sunnah. Any of its interpretation should considered as void.
(Tabassum, Riysat-e-Madina Aur Pakistan, 2019, p. 214) When he 1956
constitution was adopted, various Islamic Provisions were incorporated into it.
Of them, Preamble was first in the row. It comprised of the Objectives
Resolution. The Objectives Resolution provided for attribution of sovereignty
over the entire universe to Allah al-mighty. The resolution successfully
combined democracy and principles of Islam. Next to the preamble, article one,
gave symbolic name of Islamic Republic of Pakistan to the country. Similarly
promotion of Muslim Unity and International Peace together with Promotion of
Islamic Principles were main points of Directive Principles of the state policy.
(Islam, Constitutional Development in Pakistan, 2018, p. 21) The constitution
put conditionality that President of the state must be a Muslim. In Part XII
under articles 197, a body called Organization for Islamic Research and
Instruction was provided. The organization was to play a role in the
reconstruction of Pakistani society on Islamic principles. Similarly, Article 198
provided for provisions about the Holy Quran and Sunnah. (Abbas, The
Constitution of Pakistan, 1958, pp, 234 and 287) Unluckily, the 1956
constitution could not survive for long and was abrogated on 7th October 1958.
(Tabassum, Riysat-e-Madina Aur Pakistan, 2019, p. 214) Resultantly, the
Islamic provisions could not be implemented in letter and spirit. After an
interval of almost four years, a new constitution, that of 1962, was promulgated.
The second constitution too embodied in itself several Islamic provisions. The
1962 constitution also had a preamble comprising the Objectives Resolution
There was a separate chapter for Directive Principles of State Policy and
Principles of Policy. Article 8 of the constitution contained many steps
supposed to be taken in order to ensure the Islamic way of life. (Choudhury,
Documents and Speeches on the Constitution of Pakistan, 1967, pp.45-46) In
115
Articles 199 to 206 of the constitution, details about Advisory Council of
Islamic Ideology were given. The role and functions assigned to the council
included: making recommendations to the Central and the Provincial
Governments as how to enable and encourage the Muslims of Pakistan to order
their lives in accordance with the principles and concepts of Islam. (Choudhury,
Documents and Speeches on the Constitution of Pakistan, 1967, pp.45-46) Jan-
June, 2020 The Council of Islamic Ideology (CII) in the 1973 Constitution:
Background, Structure and Performance Peshawar Islamicus Vol:11, Issue 1 58
Islamic Provisions of the 1973 Constitution: The 1973 possesses more Islamic
provisions than the previous two constitutions. Like the previous constitutions,
the Objectives Resolution has been included in the preamble of the 1973
constitution. However, General Ziaul Haq made it substantive part of the
constitution in the form of Article 2A, through the Eighth Amendment. Now the
objectives Resolution was made a part of the constitution under Article 2A.
(Ali, Constitution of the Islamic Republic of Pakistan, 1973, 2010, P. 4) The
symbolic name “Islamic Republic of Pakistan” has been provided in the
beginning of the constitution. Similarly Islam has been declared as the state
religion of Pakistan. In part ii of the constitution, the Principles of Policy
chapter is spread over many Islamic provisions. Of them, Article 31 is titled as
“Islamic Way of life”. According to it, steps such as enabling Muslims of
Pakistan to order their individual/collective lives in accordance with Islam. It
was also provided that facilities to understand the Holy Quran, to make teaching
of Quran and Islamiyat compulsory, facilitation of Arabic language learning,
securing correct printing of the Holy Quran, promotion of unity and the
observance of Islamic moral standard, and securing the proper organization of
Zakat (Ushar), auquaf and mosques will be ensured. Several vices and social
evils have mentioned in Article 37, sub clauses (g) and (h). The state has vowed
to eradicate these evils such as gambling, drugs and publication of aggressive
literature. In chapter 1 of part II of the constitution, Article 41(2) provides for
the President to be Muslim. Moreover, his oath in the second schedule of the
constitution is loaded with Islamic terms. In chapter 2 of the same part, Articles
62 and 63 have been included. Article 62 clause (d, e, f and g) have enumerated
certain conditionalities for prospective and current members of the assemblies
and parliament. The relevant part says that a person having good moral
character, knowledge of Isalam, Sadiq and Ameen. He has not convicted for a
crime and being no declared unsound by a court of law.” The establishment of
Federal Shariat Court is yet another important Islamic provision. In this regard,
Article 203(d) says that the court will examine and decide the question whether
or not any law or provision of law is repugnant to the injunctions of Islam, as
laid down in the Holy Quran and Sunnah of the Holy Prophet (PBUH),
hereinafter referred to as the Injunctions of Islam”. (Ali, Constitution of the
Islamic Republic of Pakistan, 1973, 2010, P. 4) The Council of Islamic
Ideology: As mentioned, there are several Islamic provisions given in in the
1973 constitution, but the title of “Islamic Provisions” has only been given to
five articles in its part-IX. These articles are 227 to 231. Article 227 provides
for bringing all the current laws in conformism with the Instructions of Islam as
116
given in the Holy Quran and Sunnah. Similarly, the same article vows not to
frame any law which is against the injunctions of Islam. Article 228 gives
composition of the Council of Islamic Ideology which is to consist of not less
than twenty one members to be appointed for a term of three years. The
President of Pakistan has the powers to appoint the Council. Besides, at least
one women, one third of the members are supposed to be well versed in Islamic
research. Furthermore one or two members are to be or have been Judges of the
Supreme Court or any High Court of Pakistan. (Articles 228 of the 1973
constitution of Pakistan )Jan-June, 2020 The Council of Islamic Ideology (CII)
in the 1973 Constitution: Background, Structure and Performance Peshawar
Islamicus Vol:11, Issue 1 59 Article 229 gives a procedure as how to refer a
matter to the Council. The requirement for such a reference is that the President
or the Governor of a Province can send it to the Council. Moreover, two-fifths
of the total membership of any House of Majlis-e-Shura or a Provincial
Assembly can also refer a matter to the Council. Article 230 is lengthier than
other articles of the chapter. It describes functions of the council. Articles 230
of the 1973 constitution of Pakistan. Last but not the least is Article 231, which
is about rules and procedure for running the Council of Islamic Ideology. These
rule are framed by the council which are approved by the President of Pakistan.
Reports of Council of Islamic Ideology: There has been a confusion among the
people as to whether reports submitted by the Council are implemented by the
Government or not. The researcher visited head office of the Council on 28th
August, 2019 and conducted interviews with the Chairman Prof. Dr. Qibla
Ayaz and Secretary Dr. Ikramul Haq Yaseen. The Chairman expressed his
satisfaction over response of the government. He said that ever since taking
charge in November, 2017, he has noticed that the government has given full
weightage to input of the Council on various legislative proposals. (Interview
with Prof. Dr. Qibla Ayaz, 28 th August, 2019) He said that there might be
problems with recommendations in the pre-1972 reports, but the post-1973
scenario is different and quite conducive for smooth function of the Council. He
said that recently, the Council vetted legislative proposals about organs
donation and transgender’s rights. He said that the Council intervenes when the
bill is referred to the Standing Committee of a house of Parliament. The
Council has worked hard in terms giving recommendations and publishing
reports. An extract from the performance report of the Council reveals story of
the reports: “The number of Council’s publications is 101 which include its
annual and other reports. Out of the total 101 publications, 43 are annual
reports, 37 are about Islamization of laws, 8 are about Islamization of economy,
and one report is on educational reforms, 4 on social reformation, and one on
the reformation of media. Moreover, interim reports on Hudood and “Islam and
Terrorism” were also published. Similarly publications about women’s right
and regular issues of the Council’s journal “Ejtehad” were also brought out”
(Yaseen, Islami Nazriyati Council: Idarajat Pas Manzar aur Karkardagi, 2016,
P, 285) Apart from reporting, the Council has arranged scores of conferences on
various themes. The above extract shows that the Council had done a lot of
work towards achievement of its goals. The secretary of the commission said
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that reports of the Council are based on its meetings’ proceedings while replies
are also sent to various agencies in response to their queries, on regular basis.
(Interview with Dr.Ikramul Haq Yaseen, 28th August, 2019) He said that the
reports produced so far by the Council are for the period starting in 1981 and
ending in 2015-16. Work on remaining reports was in progress which will be
made public soon. (Yaseen, Hukumati Estefsaaraat (1962-2014), 2018, p. 661)
The Chairman said that these reports contain very useful proposals for future
legislation. However, these are not binding on government. The thing which is
binding on government is that whenever the Majlis-e-Shura (Parliament) takes
up these proposals for legislation, then the Council will exercise its
constitutional mandate to give its opinion.(Interview with Dr. Qibla Ayaz, 28
August, 2019)Jan-June, 2020 The Council of Islamic Ideology (CII) in the 1973
Constitution: Background, Structure and Performance Peshawar Islamicus
Vol:11, Issue 1 60 Conclusion: Incorporating Islamic provisions in the
constitutions of Pakistan has been an undisputed phenomenon. There are few
dissenting voices against it but the overwhelming majority of Pakistanis is in its
favour. The 1973 constitution contains more Islamic provisions than the
previous constitutions. One of the important body provided by the current
constitution is Council of Islamic Ideology. Opinions vary on the vitality and
performance of the Council. Those who criticize its role are further divided into
two groups. One group having secular views, terms it a watchdog which
undermines sovereignty of the Majlis-e-Shoora (parliament). They, therefore,
suggest to discard it from the constitution. The other group of critics are staunch
supporters of the Council but they complain that the Council has not been able
to Islamize all laws in Pakistan. They always call for proactive role of the
Council in this regard. However, the Council or parliament need not to bow
before these extreme views. The actual fact is somewhere between these two
radical views. Keeping in view the explicit role of the Council, it is not correct
to say that it emasculates supremacy of the parliament. Actually, the Council is
an advisory body having no force of Islamization without the input and
approval of the parliament. So Majlis-e-Shoora (parliament) is more powerful
than the Council. The incumbent Chairman of the Council is right to say that
giving constitutional status to the aspiration of religion loving people of
Pakistan reflects the farsightedness and vision of our forefathers. Had
constitutional cover not been provided to aspiration of People, there could have
broken out insurgency in Pakistan, he opined. For better performance, the
Council needs to be strengthened in terms of human and financial resources,
The current staff comprising a Secretary, a Director General, another Director,
Chief Research Officer and their supporting officials, is not enough. The
secretariat should be reorganized on the pattern of other federal departments
and divisions. Sub offices of the Council’s may also be established at provincial
headquarters. Pakistani society is prone to many social problems. Due to weak
economic conditions, unemployment, disparities, ethnic and sectarian strife and
other social evils, we need to restructure our society. This gigantic task can be
carried by institutions having good reputation and association of highly
qualified people, like Council of Islamic Ideology. The Council should
118
therefore focus on education and reformation of the society as well besides its
routine work. Endnotes: 1. Abbas, Kamaruddin Bin. The Constitution of
Pakistan, All Pakistan Legal Decisions, Lahore, 1958 2. Ali, Ishfaq.
Constitution of the Islamic Republic of Pakistan, 1973, Alshams law Books,
Lahore, 2010 3. Choudhury, G. W. Documents and Speeches on the
Constitution of Pakistan, Green Book House, Dacca, 1967 4.
https://historypak.com/ulamas-22-points/ accessed on 24th April 2019 5.
Interview with Dr.Ikramul Haq Yaseen, Secretary Council of Islamic Ideology
Pakistan in his office at Ataturk Avenue Sector G-5/2 Islamabad, dated: 28th
August, 2019 6. Interview with Prof. Dr. Qibla Ayaz, Chairman Council of
Islamic Ideology Pakistan in his office at Ataturk Avenue Sector G-5/2
Islamabad, dated: 28th August, 2019Jan-June, 2020 The Council of Islamic
Ideology (CII) in the 1973 Constitution: Background, Structure and
Performance Peshawar Islamicus Vol:11, Issue 1 61 7. Islam, Fakhr-ul.
Constitutional Development in Pakistan, Pakistan Study Centre University of
Peshawar, 2018 8. Riaz, Ahmad. Constitutional and Political Development in
Pakistan 1951-54, Pak-American Commercial Karachi, 1951 9. Tabassum,
Abdurrshid. Riysat-e-Madina Aur Pakistan, Misal Publishers, Faisalabad, 2019
10. The 1973 Constitution of the Islamic Republic of Pakistan Articles 228 11.
The 1973 Constitution of the Islamic Republic of Pakistan Articles 230 12.
Yaseen, Dr.Ikramul Haq Hukumati Estefsaaraat (1962-2014), of Islamic
Ideology Pakistan, Islamabad, 2018 13. Yaseen, Dr.Ikramul Haq. Islami
Nazriyati Council: Idarajat Pas Manzar aur Karkardagi, Part-1, Islamic Ideology
Pakistan, Islamabad, 2016. 14. Yaseen, Dr.Ikramul Haq. Islami Nazriyati
Council: Idarajat Pas Manzar aur Karkardagi, Part-1, Islamic Ideology Pakistan,
Islamabad, 2016
The Composition of Parliament in Pakistan

June 13, 2021
The federal legislature in Pakistan is Parliament (also known as Majlis-e-

Shoorawhich literally means an advisory council or consultative council).
Parliament in Pakistan, according to article 50, is comprised of President and the
two houses known as National Assembly and Senate. Representation to various
federating units in the National assembly or the lower house is given on the basis
of population; the more populous a federating unit is the more it has seats in the
National Assembly. The Senate, in accordance with the principles of federation,
represents the federating units on the basis of equality. Small and large
federating units have equal number of seats. In other words, Baluchistan the
least populous province has equal number of senators to that of Punjab, the most
populous province.
National Assembly
According to article 51 there shall be three hundred and thirty six for members
in the National Assembly, including seats reserved for women and non-Muslims.
Who can vote?
119
A person shall be entitled to vote if—
(a) he is a citizen of Pakistan;
(b) he is not less than eighteen years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent court to be of unsound mind.
Who can be voted as Member of Parliament
A person to be elected to the parliament must be:
(a) A citizen of Pakistan
(b) In the case of National Assembly, not less than 25 years of age and enrolled in
the electoral list in any part of Pakistan if he or she is contesting election on a
general seat or a seat reserved for non-Muslims. If she is contesting election on a
seat reserved for women then she must be enrolled in the electoral list in the
province concerned.
(c) In the case of Senate, not less than 35 years of age and enrolled in the
electoral list in the province or Federal Capital as the case may be, from where he
or she is contesting election.
Furthermore, he or she must fulfill the requisites of article 62 in order to be a

member of Parliament.
Allocation of seats in National Assembly to Federating units
According to article 51, clause (3) the three hundred and thirty six seats in the
National Assembly , except the seats mentioned in clause (4) of article 51 i.e. the
seats reserved for non-Muslims, shall be allocated to each Province and the
Federal Capital as under :—
Allocation of Seats to Federating Units in National Assembly of Pakistan
Notwithstanding the allocation of seats by clause 3 as in the above table or any

other law for the time being in force, the members of the National Assembly from
the Federally Administered Tribal Areas to be elected in the general elections,
120
2018 shall continue till dissolution of the National Assembly and thereafter this
clause shall stand omitted.
Bifurcation of seats in National Assembly in Different Categories: General seats,

Women Seats and Total Seats
Constituencies for General seats
The constituencies for the general seats shall be single member territorial
constituencies and the members to fill such seats shall be elected by direct and
free vote in accordance with law.
Constituencies for seats reserved for women
Each Province shall be a single constituency for all seats reserved for women
which are allocated to the respective Provinces under clause (3) of article 51.
Article 51 clause (6) sub-clause (d) provides that members to the seats reserved
for women which are allocated to a Province under shall be elected in accordance
with law through proportional representation system of political parties’ lists of
candidates on the basis of total number of general seats secured by each political
party from the Province concerned in the National Assembly. However, for the
purpose of this paragraph the total number of general seats won by a political
party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official
Gazette of the names of the returned candidates.
Seats Reserved for non-Muslims
In addition to the number of seats referred to in clause (3), there shall be, in the
National Assembly, ten seats reserved for non-Muslims. The constituency for all
seats reserved for non-Muslims shall be the whole country.
According to article 51 clause (6) sub-clause (e) members to the seats reserved
for non-Muslims shall be elected in accordance with law through proportional
representation system of political parties’ lists of candidates on the basis of total
number of general seats won by each political party in the National Assemblyand
the total number of general seats won by a political party shall include the
121
independent returned candidate or candidates who may duly join such political
party within three days of the publication in the official Gazette of the names of
the returned candidates.
Allocation of seats in the National Assembly on the basis of population
According to clause 5 of article 51, the seats in the National Assembly shall be
allocated to each province and the Federal Capital on the basis of population in
accordance with the last preceding census officially published.
Provided that for purposes of the next general elections to be held in 2018 and
bye-elections related thereto, the allocation shall be made on the basis of
provisional results of the 2017 census which shall be published by the Federal
Government.
Allocation of Seats in the National Assembly to Federating Units
Duration of National Assembly
According to article 52 the National Assembly shall, unless sooner dissolved,

continue for a term of five years from the day of its first meeting and shall stand
dissolved at the expiration of its term.
The Senate of Pakistan
122
Composition of Senate
According to the provisions of article 59 of the Constitution of Pakistan, 1973 the

Senate shall consist of ninety-six members, of whom,
 fourteen shall be elected by the members of each Provincial Assembly

 two on general seats, and one woman and one technocrat
including aalim shall be elected from the Federal Capital in such manner as
the President may, by Order, prescribe;
 four women shall be elected by the members of each Provincial Assembly;
 four technocrats including ulema shall be elected by the members of each
Provincial Assembly; and
 four non-Muslims, one from each Province, shall be elected by the
members of each Provincial Assembly. Provided that this paragraph shall
be effective from the next Senate election after the commencement of the
Constitution (Eighteenth Amendment) Act, 2010.
Representation of Provinces and Federal Capital in the Senate of Pakistan
123
Members of the Senate to be Elected by Each of the Four Provinces and Federal Capital
Proportional Representation System
Election to fill seats in the Senate allocated to each Province shall be held in
accordance with the system of proportional representation by means of the
single transferable vote.
Specimen of the Single Transferable Vote for Proportional Representation

System
The Term of the Senators
According to article 59, clause (3) the Senate shall not be subject to dissolution
but the term of its members, who shall retire as follows, shall be six years :
124
> of the 14 members elected by a provincial assembly seven shall retire after the
expiration of the first three years and seven shall retire after the expiration of the
next three years;
> of the four members elected from Federal Capital,—
(i) one elected on general seat shall retire after the expiration of the first three
years and the other one shall retire after the expiration of the next three years;
and
(ii) one elected on the seat reserved for technocrat shall retire after first three
years and the one elected on the seat reserved for women shall retire after the
expiration of the next three years;
> of the four women members elected by a provincial assembly, two shall retire
after the expiration of the first three years and two shall retire after the
expiration of the next three years;
> of the four members elected by provincial assembly on technocrat seat, two
shall retire after the expiration of the. first three years and two shall retire after
the expiration of the next three years; and
> of the members elected on non-Muslims seat, two shall retire after the
expiration of first three years and two shall retire after the expiration of next
three years:
Provided that the Election Commission for the first term of seats for non-
Muslims shall draw a lot as to which two members shall retire after the first
three years.
Retirement Plan of the Senators
Although paragraph (b) of clause (1) and paragraph (b) of clause (3) of article 59
are omitted through 25 th Constitutional amendment the existing members of the
Senate from the Federally Administered Tribal Areas were allowed by clause 3-A
of article 59 to continue till expiry of their respective terms of office. On the
expiry of their terms of office clause 3-A shall also omit.
125
Clause (4) of article 59 provides that the term of office of a person elected to fill a
casual vacancy shall be the unexpired term of the member whose vacancy he has
filled. For example the natural term of office of a senator is six years, however, if
his seat is vacant after two years due to resignation, disqualification or death and
another person is elected to fill that vacant seat. His term of office shall be 4
years i.e. the unexpired term of his predecessor.
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Legislative Procedure in Parliament

June 14, 2021
Pre-Introduction phase of the Bill Or Drafting a Bill
According to the Rules of Business, 1973 the contents of the proposed legislation,
in case of official bill, shall be determined by the Division concerned. It shall also
be responsible for consulting other Divisions including Finance Division. After it
is approved by the Cabinet, in accordance with rule 16, it shall be sent to the
Ministry of Law and Justice to draft the Bill. Ministry of Law and Justice along
with drafting the Bill shall also advice the concerned Division as to the
competence of Parliament to make the law on the subject to which the proposed
legislation relates. The Division concerned, after it is drafted by Ministry of Law
and Justice, shall submit it to the cabinet for approval of the draft Bill and
obtaining the approval and signature of the Prime Minister. After it, the Division
concerned shall forward the draft along with the proposals and
recommendations of cabinet and PM, if any, to the Ministry of Law and Justice in
its final shape along with statement of objects and reasons duly signed by the
Minister-in Charge. The Ministry of Law and Justice, after being satisfied of all the
requirements, transfer the Bill to the Parliamentary Affairs Division for arranging
its introduction in the appropriate House of Parliament.
The Bill shall be introduced, on a specified date, by the Minister in-Charge or any
other Minister on his behalf. The Minister concerned shall in consultation with
the Leader of the House, decide as to which of the following motion should be
made with regard to an official Bill after its introduction,–
(a) that it be taken into consideration at once and passed; or
(b) that it be taken into consideration on a date to be specified; or
(c) that it be referred to a Select Committee; or
(d) that it be circulated for the purpose of eliciting opinion thereon;
126
Pre-Introduction Phase or the Proposed Legislation or Drafting a Bill
Post Introduction Phase or Legislative Procedure in The Parliament
Article 70 of the Constitution lays down the legislative process when a Bill is
introduced in the Parliament which is as follows:
Introduction and Passing of Bills
A Bill with respect to any matter in the Federal Legislative List may originate in
either House and shall, if it is passed by the House in which it originated, be
transmitted to the other House; and, if the Bill is passed without amendment by
the other House also, it shall be presented to the President for assent.
If The Bill is Passed With Amendment by The House to Which it Was

Transmitted
Clause (2) of article 70 provides that if a Bill transmitted to a House under clause
(1) is passed with amendments it shall be sent back to the House in which it
originated and if that House passes the Bill with those amendments it shall be
presented to the President for assent.
Joint Session: In Case Bill Could Not Be Passed
According to clause (3) of article 70, if a Bill transmitted to a House under clause
(1) is rejected or is not passed within ninety days of its laying in the House or a
Bill sent to a House under clause (2) with amendments is not passed by that
House with such amendments, the Bill, at the request of the House in which it
originated, shall be considered in a joint sitting and if passed by the votes of the
majority of the members present and voting in the joint sitting it shall be
Clause (4) of the article 70 says that in this Article and the succeeding provisions
of the Constitution, “Federal Legislative List” means the Federal Legislative List
in the Fourth Schedule.
President’s Assent to Bills
127
Article 75 lays down the procedure of President’s assent to the bills passed by
parliament which is as follows:
President Shall Assent to The Bill or Return The Bill For Reconsideration:
When a bill is presented to the President for assent, the President shall,
within ten days:
(a) assent to the Bill; or
(b) in the case of a Bill other than a Money Bill, return the Bill to the Majlis-e-
Shoora (Parliament) with a message requesting that the Bill, or any specified
provision thereof, be reconsidered and that any amendment specified in the
message be considered.
Bill to be Presented to President After Reconsideration by Parliament
Clause 2 of article 75 says that when the President has returned a Bill to the
Majlis-e-Shoora (Parliament), it shall be reconsidered by the Majlis-e-Shoora
(Parliament) in joint sitting and, if it is again passed, with or without amendment,
by the Majlis-e-Shoora (Parliament), by the votes of the majority of the members
of both Houses present and voting, it shall be deemed for the purposes of the
Constitution to have been passed by both Houses and shall be presented to the
President, and the President shall give his assent within ten days, failing which
such assent shall be deemed to have been given.]
Bill Becomes Law
In terms of the provisions of article 75(3) the bill, it shall become law and be
called an Act of Parliament after President has assented to it.
Clause(4) of the article 75 says that no Act of Parliament, and no provision in any
such Act, shall be invalid by reason only that some recommendation, previous
sanction or consent required by the Constitution was not given if that Act was
assented to in accordance with the Constitution.
128
Legislative Process in Parliament
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129
As a Preamble to the Constitution
As its substantive part

Guideline Speech of Q. Azam
In his guideline speech to the constituent assembly on 11th
August, 1947 Quaid-e-Azam M. Ali Jinnah said:
“You are free; you are free to go to your temples, you are
free to go to your mosques or to any other place of worship
in this state of Pakistan. You may belong to any religion, or caste
or creed---that has nothing to do with the business of the
state….we are all citizens and equal citizens of one state….
and you will find that in the course of time Hindus will cease to be
Hindus and Muslims will cease to be Muslims, not in the religious
sense because that is the personal faith of each individual, but in
the political sense as citizens of the state”
OR passed after QA death
However, within six months of his death the Constituent
Assembly of Pakistan passed a resolution on the „Aims
and Objects of the Constitution‟ on 12th March 1949,
popularly known as Objectives Resolutions.
Liaquat Ali Khan then PM said that “We, the people of

Pakistan, have the courage to believe firmly that all authority
should be exercised in accordance with the standards laid
down in Islam so that it may not be misused.”
Limits prescribed by Him?
Chandra Chattopadyaya, a member of Pakistan National

Congress in the Constituent Assembly, said that so long as
we had an idea that the constitution would be based on
principles of equality, democracy and social justice. We thought
that religion and constitution would not be mixed up as
declared by Muhammad Ali Jinnah on the floor of this
house. Criticizing the objectives resolution he asked that
“what are the limits prescribed by Him within which the
state is to exercise the authority, who will interpret them?
….One day a Louis XIV may come and say “I am the state,
appointed by the Almighty.”
Recipient of Allah‟s authority
The Objectives Resolution of 1949 had talked of Allah Almighty

having delegated His authority to the state. Professor Raj
Kumar Chakravarty, a member of the Pakistan National
Congress party which was largely based in East Pakistan,
suggested that the delegate of God’s authority should be the people
and not the state. He argued that “First come people and then the
state… a state is formed by the people, guided by the people and
controlled by the people.” The professor took exception to the
text of the Objectives Resolution as it meant that “once a state
comes into existence it becomes all-in-all; it is supreme, quite
supreme over the people…” He argued that the state had to
be responsive to the public opinion and to the public demand
but the resolution implied that the state need not meet these
criteria.
Chakraverty‟s view accommodated in 1973
Jawwad S. Khawaja, J. observed in 21st constitutional amendment case that

though Prof. Chakraverty was unsuccessful in 1949, our Constitution
makers in 1972‐73 who were fully aware of the divisive debates of 1949,
accepted what had been proposed by Prof. Chakraverty as a fundamental
Constitutional principle. As a consequence, the People of Pakistan were given due
status and recognition and they were specifically mentioned in our Constitutional
Preamble as recipients of temporal “authority to be exercised by [them] as a
sacred trust”. This was a remarkable and fundamental change from the text
of the Objectives Resolution where authority had been proposed to be
delegated by Allah Almighty to the State of Pakistan and NOT its people.
The second fundamental, and in my view crucial, difference was that in 1949 it
was the Constituent Assembly which had resolved to frame the Constitution for
the State of Pakistan. In 1973 as expressly stated in the Preamble it was the
People who were by their will, creating the Constitutional Order as per their
commands. These are remarkable features of the Constitution which
appear to have escaped the attention of Courts
The proper function of the preamble is to explain certain facts
which are necessary to be explained before the provisions
contained in the Act can be properly apprehended.
The preamble of an Act usually states the general object and

intention of the legislature for enacting it. If the enacting part is
ambiguous or open to doubts, the preamble may be referred to
resolve this ambiguity or doubt. Generally, for the purpose of
interpretation, the preamble of the constitution stands in the same
The preamble has sometimes been referred to as a supra

constitutional instrument and Grund Norm by which the
constitutionality of the provisions of the constitution is to be
judged.
Grund Norm.
Basic Norm, the law from which all other laws in a society
derive…..the validity of all laws is tested against the basic
norm. (Black’s Law Dictionary).
A concept of Continental jurists indicating a basic pattern of

rights, obligations and procedure rooted in the thoughts, habits
and life of the people like Common law of the Anglo-Saxon
system. Its jurisprudential value is that the law makers are bound
to pay regard to the norm relevant to the law they are making.
CJ of Lahore High Court, Hussain Naqi v/s The District

Magistrate of Lahore, defined Grund Norm as “the ideology, aim
and final object of a country or nation.”
Asma Jillani Case (PLD 1972 SC
139)
CJ Hamoodur Rehman observed in Asma Jillani Case
PLD 1972 SC 139) that in any event, if a Grund norm is
necessary for us I do not have to look to the Western legal
theorists to discover one. Our own Grund norm is enshrined
in our own doctrine that the legal sovereignty over the entire
universe belongs to Almighty Allah alone, and the authority
exercisable by the people within the limits prescribed by him a
sacred trust. This is an immutable and unalterable norm which
was clearly accepted in the Objectives Resolution passed by
the Constituent Assembly of Pakistan on the 7th of March
1949. Justice Sajjad observed that the Objectives Resolution is
not just a preface. It embodies the spirit and the fundamental
norms of the constitutional concept of Pakistan.
The observations in Asma Jillani case have .been interpreted as
pronouncement by the Court of Objective Resolutions to be
grund norm of constitution of Pakistan having a supra
constitutional status.
Dr. Mubashar Hassan v. Federation of
Pakistan (PLD 2010 SC 265)
Ch. Ijaz Ahmed, J. has summed up the position of the
Preamble. He noted that the Preamble … shows the will
of the people … and is the key to understand[ing] the
constitution. These are not idle words meant to pay lip
service or to sing vacuous paeans to the Preamble
without the intention of giving meaning to its exceptional
nature and content. If indeed the Preamble is the
cornerstone of Pakistan’s legal edifice or the key to its
understanding then it cannot be reduced to the status of
meaningless verbiage which is what necessarily will happen if
it is held that Parliament has an absolute, unfettered and
limitless power to change the Constitution, regardless of the
commands in the Preamble.
18th and 21st amendment case
Qazi Faez Isa, J.observed that Parliamentarians, who

adorn the House after the promulgation of the 1973
Constitution or will do so in the future, do not have the
constituent powers of the first parliamentarians,
therefore, they cannot amend the Constitution in a
manner that contravenes the provisions of the Preamble
to the Constitution, and in particular any amendment
that may abolish, take away or abridge any of the
fundamental rights of the people.
Qazi Faez Isa, J.: Parliament is transient, the
constitution is for all times
Because, learned judge further observed that, it needs to
be remembered that parliamentarians are elected for a
prescribed period, i.e. every Parliament by its very nature is
transient, whereas the Constitution abides and is required to be
preserved, protected and defended for all times. Certain
features mentioned in the Preamble of the Constitution cannot
be abrogated. Judges must fulfill their Oath to “preserve,
protect and defend the Constitution” from injury or
destruction and to ensure the survival of the guaranteed
Fundamental Rights of the people because the
Constitution itself expects no less.
State v/s Zia Ur Rehman (PLD
1973 SC 49.)
The statements in Asma Jillani case have been

interpreted as pronouncement by the Court of
Objective Resolutions to be grund norm of constitution
of Pakistan having a supra constitutional status. However,
this ambiguity was cleared by Hamoodur Rehman
himself in a later case i.e. State v/s Zia Ur Rehman
(PLD 1973 SC 49.)
State v/s Zia Ur Rehman (PLD 1973 SC
49.)
Supreme Court in State v/s Zia Ur Rehman (PLD 1973 SC
49), held that Objective Resolutions is neither the grund norm nor
the supra constitutional instrument, it has not the same status or
authority as the operative part of the constitution itself unless it is
incorporated therein…it can be looked at to ascertain the meaning
of a provision of constitution but cannot control the substantive
provisions. CJ, Hamoodur Rehman, clearing the ambiguity
created by his observation in Asma Jillani Case, observed that “So
far as the Objectives Resolution of 1949 is concerned, there is no
dispute that it is an important document which proclaims the aims
and objectives sought to be attained by the people of Pakistan; but it
is not a supra‐Constitutional document, nor is it enforceable as such, for,
having been incorporated as a preamble it stands on the same footing as
a preamble. It may be looked at to remove doubts if the language of
any provision of the Constitution is not clear, but it cannot override
or control the clear provisions of the Constitution itself.”
Statement of Hamoodur Rehman is
conditional in Asma Jillani Case
Ambiguity can be further cleared if the excerpt from the
Asma Jillani case is read with reference to context. CJ,
Hamoodur Rehman while discussing the Dosso Case
(PLD 1958 SC 533), where the grund norm as
elaborated by Kelsen was presented before him,
observed that there is no need to look into western
philosophies to import the grund norm. Hamoodur
Rehman referred to Objective Resolutions only as a
possible grund norm. It should also be noted that his
statement is conditional statement i.e. “in any event, if a
grund norm is necessary….” Clearly providing that it was only
an argument stated to counter the use of Western legal
theorist in the said case and not to state an binding opinion
of the Court.
The view that Objective Resolution is not grund norm of

the Constitution of Pakistan is also taken:
By CJ of Lahore High Court in Hussain Naqi v/s The

District Magistrate of Lahore (PLD 1973 Lah 164)
The full bench of Lahore High Court in Asma Jehangir

v/s Government of Punjab (PLD 1972 Lah 382)
Insertion of Objectives Resolution in the
Constitution as article 2A
The confusion surrounding its status was exasperated after
Objectives Resolution was made a “substantive” part of the
Constitution through Article 2A, inserted through President's
Order No.14 of 1985. For some it means that the
Objectives Resolution was not a Supra‐Constitutional
document and that Courts being the creatures of the
Constitution could not strike down any of its provisions
and, therefore, it was not open to a Court to
countenance any prayer to that effect.
While others understood these observations to imply
that in case the Objectives Resolution got incorporated
into the Constitution and became its substantive part, it
then could control the other provisions of the
Constitution.”
Sakina Bibi v/s Federation of Pakistan (PLD
1992 Lah. 99
For example, Sakina Bibi v/s Federation of Pakistan

(PLD 1992 Lah. 99) the Lahore High Court observed
that wording of the preamble itself shows that Objectives
Resolutions is a mandate given by the people to their
representatives to frame a constitution in the light of
guidelines supplied. The tenor of the objectives resolution is
that it is an acknowledged command of the people directed
against their representatives to act in the manner provided
therein. All measures which conflict with the ideology, aim and
final object of the country and nation can be questioned under
article 2A
Hakim Khan‟s case (PLD 1992 SC 595)
Similarly it was argued in Hakim Khan‟s case (PLD 1992

SC 595), that after the inclusion of Objectives
Resolution as substantive part of the Constitution it “has
clearly acquired the status of a supra‐Constitutional document.
Resultantly, any of the existing provisions of the Constitution
which conflicts with its terms and is inconsistent or repugnant
to its principles and provisions has become inoperative and of
no legal effect and can be so declared by the Courts
Court‟s held in Hakim Khan Case
However, Court did not agree with this argument and held that the
word “substantive” means “an essential part or constituent or
relating to what is essential”, after the inclusion of Article 2A into the
Constitution, Objectives Resolution possess the “same weight and status
as other Articles of the Constitution which are already a substantive part
thereof.” Court then proceeded to consider the implications of the
scenario when Article 2A would become in control of the
Constitution. In such a situation, most of the Articles of the
Constitution would become questionable on the touchstone of the
Objectives Resolution, which in relation to the Constitution would
“result in undermining it and pave the way for its eventual destruction or
at least its continuance in its present form.” That this could not be allowed
to happen as inconsistencies between provisions of the Constitution and
Objectives Resolution were to be harmoniously interpreted instead of
annulling existing provisions of the Constitution which cannot be
undertaken by any Court.
Court view in Hakim Khan Case

every provision of the Constitution has to be given its
meaning and effect.
No substantive Constitutional provision can be given any

superiority over the other provisions.
 They have to be read alongwith other provisions as an

integral part of the Constitution which is an organic
document having come to stay once for all unless it is
amended in accordance with Article 239 of the Constitution.
Kaneez Fatima v. Wali Muhammad
(PLD 1993 SC 901)
Justice Saleem Akhtar, relying on the earlier case of

Hakim Khan, held that: “As is obvious from the
aforestated weighty observations, Article 2A cannot be
pressed into service for striking down any provision of the
Constitution on the grounds that it is not self‐executory and
also that another provision of the Constitution cannot be
struck down being in conflict with any other provision of the
Constitution.”
Fauji Foundation v. Shamimur Rehman
(PLD 1983 SC 457)
This Court in Fauji Foundation v. Shamimur

Rehman (PLD 1983 SC 457) after discussing series of
Indian case law on the subject of basic structure in
paragraphs 190 to 192, held that “no provision of the
Constitution can be ultra vires, because there is no touchstone
outside the Constitution by which the validity of a provision of
the Constitution can be judged.”
Benazir Bhutto and others v/s President of
Pakistan and others (PLD 1998 SC 388)
The Court held that the provisions in the Constitution are
to be construed in such a way which promotes harmony
between different provisions and should not render any
particular provision to be redundant as the intention is that
the Constitution should be workable to ensure survival of
the system which is enunciated therein for the governance of
the country. It is held in opinion of the Supreme Court in
Special Reference No.1 of 1957(PLD 1957 SC 219)
that effect should be given to every part and every word of
the Constitution. Hence, as a general rule, the Courts should
avoid a construction which renders any provision
meaningless or inoperative and must lean in favour of a
construction which will render every word operative rather
than one which may make some words idle and nugatory
Mahmood Khan Achakzai v/s Federation
of Pakistan (PLD 1997 SC 426)
Court held that Islamic provisions are very much embedded in the
Constitution of 1973 as Article 2 thereof envisages that Islam shall be
that State religion of Pakistan and Article 227 provides that all
existing laws shall be brought in conformity with the Injunctions of
Islam as laid down in the Holy Qur‟an and Sunnah. Further Article
228 provides for setting up Council of Islamic Ideology. Similar
provisions existed in Articles 197 and 198 of the Constitution of
1956 and Articles 199 to 207 of the Constitution of 1962. Similar
Islamic provisions existed in the Interim Constitution of 1972 from
Articles 251 to 259. In nutshell it can be said that basic structure as such
is not specifically mentioned in the Constitution of 1973 but Objectives
Resolution as preamble of the Constitution and now inserted as the
substantive part in the shape of Article 2-A when read with other
provisions of the Constitution reflects salient features of the Constitution
highlighting federalism, parliamentary form of Government blended with
Islamic provisions.
Mahmood Khan Achakzai v/s Federation of
CJ, Sajjad Ali Shah Observed that Constitution

imposed no limitation whatsoever on the power of the
Parliament to amend any provision of the
Constitution……amendments to the Constitution
remain subject to limitation that the salient feature or
basic characteristic of the Constitution providing for
Federalism, Parliamentary Democracy and Islamic
provisions as envisaged in the Objectives
Resolution/Preamble to the Constitution of 1973 which
have become substantive part of the Constitution
remain untouched.
Mahmood Khan Achakzai v/s Federation of
Court also held that basic structure theory has been

completely rejected so far as the Constitution of
Pakistan is concerned. Provisions of the constitution
cannot be struck down on the basis of being violative of
any prominent feature, character or structure of the
constitution. Even in the presence of article 2A as
substantive part of the constitution, the court cannot strike
down any of the provision of the constitution on its
touchstone.
Wukala Mahaz Barai Tahafaz Dastoor and another
vs. Federation of Pakistan and others (PLD 1998 SC
1263)
The fourteenth constitutional amendment Article 63A was
introduced providing for disqualification of a Member of National
Assembly or Provincial Assemblies upon his defection from the
party on whose ticket he got elected. This amendment was
challenged by Wukala Mahaz Barai Tahafuz Dastoor, on whose
behalf again the basic structure theory was invoked for the
purpose of striking down the amendment. Mr. Justice Ajmal
Mian, the then Chief Justice of Pakistan, wrote the leading
judgment wherein he discussed the case law of India and Pakistan
on the subject and concluded that “from the above case law, it is
evident that in Pakistan the basic structure theory consistently had not
been accepted.” However, it may be pointed out that in none of
the above reports the impugned Article was such which could
have been treated as altering the basic feature/structure of the
Constitution. If the Parliament by a Constitutional Amendment
makes Pakistan as a secular State, though Pakistan is founded as an
Islamic Ideological State, can it be argued that this Court will have
no power to examine the vires of such an amendment?
Pakistan Lawyers Forum v. Federation of
Pakistan (PLD 2005 Supreme Court 719)
which challenged 17th amendment as being violative of the
basic structure of the Constitution of Pakistan. Court held
that there was almost three decades of settled law to the effect
that even though there were certain salient features of the
Constitution, no Constitutional amendment could be struck down
by the superior judiciary as being violative of those features. The
remedy lay in the political and not the judicial process. The appeal
in such cases was to be made to the people not the Courts. A
Constitutional amendment posed a political question, which
could be resolved only through the normal mechanisms of
parliamentary democracy and free elections.
Pakistan Lawyers Forum v. Federation of
Pakistan (PLD 2005 Supreme Court 719)
Court further held that It may finally be noted that the
basic structure theory, particularly as applied by the
Supreme Court of India, is not a new concept so far as
Pakistani jurisprudence is concerned but has been already
considered and rejected after considerable reflection as
discussed in the cases noted hereinabove.
Nazim Hussain Siddiqui, CJ, observed in paragraph 56)

that, “the superior Courts of this country have consistently
acknowledged that while there may be a basic structure to
the Constitution”, but “such limitations [to amend the
Constitution] are to be exercised and enforced not by the
judiciary, but by the body politic, i.e., the people of Pakistan.”
Nadeem Ahmed, Advocate v
Federation of Pakistan (PLD 2010 SC
1165)
SC of Pak did not strike down the 18th amendment on

the on the touchstone of grund norm rather it
recommended changes in the amendment for
appointment of judges to Parliament.
SC judgment in 18th and 21st Constitutional
amendment case
NASIR‐UL‐MULK, C.J held that the basic structure theory

has been recognized only to the extent of identifying
salient or fundamental features of our Constitution.
However, the theory has never been accepted or applied as a
ground for striking down amendment in the Constitution. The
Court has consistently refused to follow the position taken by
the Supreme Court of India on the subject.
Does Objective Resolutions represents the will of the people
of Pakistan and is the parliament not empowered to bring
amendment to the constitution which are conflicting with it?
CJ observed that it is in the preamble of the 1973
Constitution that the will of the people is declared in these
words: “Now, therefore, we, the people of Pakistan…
Do hereby, through our representatives in the National Assembly,
adopt, enact and give to ourselves, this Constitution.” This
declaration of “we, the people of Pakistan” was neither a part of
the Objectives Resolution as it was passed in 1949 nor as
preamble to the Constitution of 1956 and 1962.
However, the will of the people in enacting the Constitution of 1973 was that the
Objectives Resolution was nothing more than a Preamble. The Objectives Resolution
which was made substantive part of the Constitution through Article 2A was that
annexed to the Constitution. The text of the annexure is different from the preamble of
the Constitution in that the declaration made by “we, the people of Pakistan” has been
omitted, for obvious reasons as the Annex was introduced by a military ruler. This goes
to show that the original Constitution of 1973, representing the will of the
people through their chosen representatives, had declared the Objectives
Resolution to be only a preamble to the Constitution and not its substantive
part. This amendment was therefore, not expression of the will of the people.
Though, Article 2A has since been acknowledged and accepted as substantive
part of the Constitution, it does not however, represent the will of the people.
It follows from the above discussion that notwithstanding the inclusion of Article
2A whereby the Objectives Resolution has been made a substantive part of the
Constitution, it neither controls other provisions of the Constitution nor can other
provisions of the Constitution be struck down on the ground that they come into
conflict with it. The Objectives Resolution as substantive part of the Constitution
can be used in interpretation of other provisions of the Constitution in case of
doubt.
Position of the Preamble vis‐a‐vis the operative
parts of the Constitution
Mr. Abdul Hafeez Pirzada, as the Federal Minister for Law

and Parliamentary Affairs, who presented the draft Bill of the
Constitution before the parliament, explained the “position of the
Preamble vis‐a‐vis the operative parts of the Constitution” in
the following words:
Preamble essentially is not an operative part of the
Constitution. Preamble is a preamble which makes
manifestation of intention on the part of Legislature. In the
past some people have claimed the preamble which reflects
the Objectives Resolution of the first Constituent Assembly of
Pakistan of 1949 as the grundnome (sic) making the crest of
the Constitution subservient to the preamble.
Position of the Preamble vis‐a‐vis the operative parts of the
Constitution
This is not the correct position. Preamble cannot be relied upon for
the purposes of interpretation or enforcement of the Constitution
where of the language of the Constitution is absolutely clear. This
view was always the accepted view and only lately, in a case, the
Supreme Court of Pakistan has reaffirmed this position that
preamble is not a grundnome (sic). We have also got some cases
in which judgment has been delivered by a superior court in
Pakistan whereby it is said that by virtue of the preamble, Judges
of the High Courts, without disrespect to them, derived some
divine power under the preamble to supersede the
Constitution. I would like to categorically state that nothing
could be more wrong than this... Therefore, the preamble at best
serves as what is supposed to be manifestation of intention,
nothing beyond that
Position of the Preamble vis‐a‐vis the operative parts of the
Constitution
And only where the language is incapable of interpretation can

the manifestation of intention be looked upon. Once that is done,
that is the end. Preamble does not serve any purpose beyond this.
It cannot be over‐riding, it cannot be dominant, it cannot make
Constitution subservient to the language and the preamble. It is
not a supra‐Constitutional document or instrument as has
been stated in the past in a judgement which now we have
reversed through a judgement of the Supreme Court. So Sir,
this I would like to go on record that preamble although
contained in a Constitutional document, is not part and parcel of
the operative portion of the Constitution so as to govern the rules
of interpretation with regard to the Constitution.”
Position of the Preamble vis‐a‐vis the operative parts of
the Constitution
The will of the people, as is represented through their

representatives in the Constituent Assembly was not to grant
a supra‐Constitutional status to the Objectives Resolution,
dominating rest of the provisions and structure of the
Constitution. It was to remain as the preamble to the
Constitution. No objection to its status as preamble of the
Constitution was raised from any side in the Constitution
making process of 1973, as can be seen from the archive of
the Constitution Making Debates.
The speech by Mr. Pirzada, while presenting the draft of the Bill of
the Constitution before the parliament, shows that people through
their representatives only wanted to retain the Objectives
Resolution as preamble to the Constitution, as was also done in the
previous two Constitutions.
Part 1
Introductory
Article 1. The Republic and its territories
Art 2. Islam to be State Religion
Art 2A. Objectives Resolution as substantive part of
the Constitution
Art 3. Elimination of Exploitation
Art 4. Right to be dealt with in accordance with law
Art 5. Loyalty to State and Obedience to
Constitution and Law
Art 6. High Treason
Are FATA/ PATA/ Northern Areas
part of Pakistan?
Appeals filed by persons serving
in Northern Areas
Recently, appeals filed by persons serving in Northern Areas:
Service Tribunal had been constituted under Article 212 of
the Constitution of Pakistan to exercise exclusive jurisdiction
in respect of matters relating to the terms and conditions of
persons who were or had been serving in Service of
Pakistan. It also has the jurisdiction to hear appeal of the
civil servant as defined in section 2(a) of the Service Tribunal
Act, 1973 and sec. 2(1) (b) of the Civil Servants Act, 1973.
Service Tribunal Act does not include civil servants
employed in Northern Areas only. Exercise of jurisdiction by
tribunal beyond the provisions of Constitution and the Act,
would be void, without jurisdiction and of no legal effect.
(2002 PLC (CS) 498 (b))
Northern Areas are part of Pakistan
A stunning blow was delivered by the Supreme Court to the

notion of special areas, deprived of the benefits of the
Constitution, in the case of Al-Jehad Trust v Federation of
Pakistan (1999 SCMR 1379), wherein the Court assumed
jurisdiction under Article 184 (3) on a petition filed before it,
seeking the enforcement of fundamental rights of the people of
Northern Areas. It may be clarified that the Constitution makes
no mention of Northern Areas. The Supreme Court nevertheless
assumed jurisdiction, the matter being of public importance
relating to enforcement of fundamental rights. The Court ruled
that the people of Northern Areas are citizens of Pakistan for all
intents and purposes and like other citizens have the right to
invoke any of the fundamental rights and liable to pay taxes and
other levies, competently imposed.
History of Constitutional status is discussed in
this case. (2010 GBLR 1)
Gilgit-Baltistan by virtue of Art. 1(2)(d) of the

Constitution, for all intents and purposes is part of
Pakistan. (2010 GBLR 160)
Any territory which does not constitute part of the

Republic of Pakistan, as defined in the Constitution,
is a foreign territory. Therefore, the State of Jammu
and Kashmir occupied by India is a foreign territory.
(PLD 1985 SC (AJK) 62, PLD 1966 SC 88)
Territory of Azad Jammu and Kashmir is not part

of Pakistan. (PLD 2005 SC 373)
State Bank of Pakistan controls the licensing policy
of the Banks, once issued, it is applied to all the Banks
wherever they are and does not need ratification or
adaptation by AJK Council.
Contention that AJK is not part of Pakistan, hence
policy of State Bank does not apply in Kashmir unless
the AJK’s Council adopts the same is devoid of force.
AJK is a territory included in Pakistan in view of Art.
1(2)(d) of Constitution of Pakistan and it cannot be
said that State Bank of Pakistan is foreign Bank or that
AJK is a foreign territory for Pakistan or vice-verse.
(PLD 2006 AJK 1)
FATA and PATA
Tribal Areas: Article 246 mentions two categories

of tribal areas:
Federally Administered Tribal Areas and
Provincially Administered Tribal Areas.

FATA and PATA
It is needed to note that Article 1 expressly includes in
Pakistan the FATA but it does not say so in respect of PATA. It
may be inferred that at the time of commencement of
Constitution PATA were not included in Pakistan, otherwise,
like FATA, they would have been expressly included in the
territories of Pakistan. However, by virtue of article 247 the
executive authority of the Federation is extended to FATA
and that of province of to PATA.
No Act of Parliament and Provincial Assembly shall apply to,
respectively, FATA and PATA. However, the President and on
his direction the Governor may allow the applicability of
Federal and Provincial laws to, respectively, FATA and PATA.
(Art 247 (3))
Jurisdiction of HCs and Supreme Court of Pakistan does not
extend to tribal areas unless parliament by law otherwise
provides (247) sub-clause (7)
FATA and PATA part of Pakistan
The Supreme Court had in the case of

Superintendent of Land Customs, Torkhem v Zewar
Khan (PLD 1969 SC 485) ruled that tribal areas were
legally part of the territory of Pakistan as several laws
including Customs Act, were applicable to it. The
Court observed that both under the international law
as well as the municipal law, the tribal territories are
part and parcel of Pakistan, as are duly recognized by
foreign states.
Petitioner, a resident of FATA was arrested u/the
provision of law and not administratively,
whereunder special forums were available for
adjudicating upon the judicial matters. Petitioner
had remedy to go the said forums but had no locus
standi to come to the High Court.
(2005 MLD 1685)
Respondent filed complaint before Political Agent of NW
Agency under sec. 420/406/403 of PPC read with Sec. 11 of
FCR.
Assistant Political Agent issued notices to petitioners in
the said complaint at their Lahore addresses.
High Court had no jurisdiction to quash the impugned
notice issued by Political Agent of NW agency. Jurisdiction of
High Courts and Supreme Court was exclusively barred by
virtue of Art. 247 (7) of the Constitution of Pak in relation to
Tribal areas. Petition dismissed as being not maintainable.
 However, Petitioners were given protective bail for one
month to enable them to move the competent court.
(2000 YLR 590)
Dr. Faqir Hussain says that it is unclear as to why
the people of FATA, though citizens
of Pakistan are denied the benefits of law
including enjoyment of fundamental
rights/freedoms, guaranteed by the Constitution.
It is therefore desirable that the jurisdiction of
High Court and Supreme Court is extended to
the region.
Discretion of the parliament to
admit…..states to Pakistan
It needs to be noted that there is nothing in the

constitution which would entitle a state, after its
formation or admission into federation, to claim
complete equality of status with a state existing
at the commencement of the constitution.
Because article 1(3) gives complete discretion to
the parliament to admit or establish new states
on such terms and condition “as it thinks fit.”
Art 2
Islam to be State Religion
Article 2 makes Islam the state religion of Pakistan.
Pakistan is an institution, not a human being. It cannot
have a religion in usual sense. What does article 2
mean? Apparently it means that in its outer
manifestation the state and its government should
carry an Islamic symbol. The Head of the State, Prime
Minister and perhaps the ambassadors accredited to
foreign states must be Muslims. It should not be
interpreted so as to exclude non-Muslims from
Parliament, Provincial Assemblies, public services and
armed services, etc.
Does Art 2 by its own force make
Islamic Law to be the law of the
land?
Religion and Din
PLD 1976 Lah 930
The English word “religion” as used in Article 2 has not been
defined in the Constitution. Its meaning given in various English
dictionaries does not, at all, represent the true significance of
the word ”Din” as used in the Qur’an. It is not possible to doubt
the proposition that the constitution-makers while enacting
Article 2 must have been inspired and motivated by the
injunctions in the Qur’an on the subject of Islam as Din. While
religion as a Western concept means mere system of faith and
worship—practice of sacred rites—the word ” ” in Arabic
language of the Qur’an is not confined and used so restrictively.
It also represents all that goes with “statecraft” and “way of
life.” The study of the Holy Qur’an show that it ( ) has been used
therein, in at least, five different major facets of human life.
They are:
Religion and Din
PLD 1976 Lah 930
(i) sovereignty, control, authority over others and
corresponding total submission;
(ii) law of the land and rule of law of God;
(iii) code and way of life and thought;
(iv) judgment and consequential punishment;
(v) religion in restricted sense—submission in faith and prayer.
(See, amongst others, Verse 76 of Surah 12: V. 2 of Surah 24; V. 78

of Surah 38; Vs. 2 & 3 of Surah 39; V. 65 of Surah 40; V. 13 & 21 of
Surah 42; V. 26 of Surah 70; V. 46 of Surah 74; and V. 9 of Surah 82
of the Holy Qur’an.)
Religion and Din
PLD 1976 Lah 930
When Islam is ordained as way of life of the State of Pakistan,
it does not carry merely spiritual meaning of submission in
faith and prayer, but also has ramifications in the other
aspects of life like political and social including juridical. Thus,
word “religion” ( ) has been used in Article 2 for the State
with the foregoing meanings and connotation specified at
Nos. (i), (ii) and (iii) above. Looked at from this angle, it is
impossible to agree with the view that this Article visualizes
the making of a mere theocratic system…… Article 2,
therefore, deals with the tangible aspects of Statecraft
including realm of political science, jurisprudence, laws and
affairs of State properly so-called.
Religion and Din
PLD 1976 Lah 930
However, the court further observed that it appears
that Part I of the Constitution “Introductory”, in which
Article 2 falls, can be divided into directly enforceable
and not so directly enforceable parts, for example,
Articles 4 and 6 are, on the face, concrete enforceable
provisions as of any other practical territorial law, while
Articles 1 and 5 can be applied only indirectly as aids to
the resolution of other legal controversies, Article 2
and 3 provide two fundamental basis of the polity in
Pakistan—one deals with the ‘statecraft’ and ‘way of
life’ and the other, with one of its (life’s) major facets,
namely, economic and social justice.
Religion and Din
PLD 1976 Lah 930
There is another additional reason for coming to this
conclusion that Article 2 as such is not so enforceable in
Courts. Some mechanism has been provided in various other
parts of the Constitution wherein the content and meaning of
this Article has been sought to be applied in concrete forms.
One of those Parts of the Constitution is Chapter 2 which
contains the principles of policy. It is not a mere coincidence
that Article 31, which has been discussed above, deals with
the particular steps which “shall be taken” to enable the
Muslims of Pakistan to conduct themselves in, what the
heading of Article 31 describes, “Islamic way of life”. As
discussed above, it is only through such like provisions of the
Constitution that Article 2 can be given as operative shape.
Art 2 by its own force does not make
Islamic Law to be the law of the land
Mst. Hamida Begum v. Mst. Murad Begum PLD 1975 SC 624 the
SC held that article 2 by its own force, does not even profess to
make Islamic Law to be law of the land. Existing laws shall be
brought into conformity with injunctions of Islam only in the
manner prescribed in part IX of the Constitution.
Article 2 provides that Islam shall be the State religion. Article 227
stipulates that all the existing laws shall be brought into
conformity with injunctions of Islam as laid down in the Holy
Quran and Sunnah and that no law shall be enacted which is
repugnant to such injunctions.
Explanation to article 227 (1) is very important as it lays down
that in the application of this clause to the personal laws of any
Muslim sect, the expression ‘Quran and Sunnah’ shall mean the
Quran and Sunnah as interpreted by that sect.
Art 2 by its own force does not make
Islamic Law to be the law of the land
Sub-clause 2 of article 227 effect shall be given to
the provisions of sub-clause (1) only in the manner
provided in this part i.e. part IX.
Sub-clause 3 says nothing in this part shall affect
the personal law of non-Muslims or their status as
citizens.
In the view of declaration of Art 2, Pakistani
judiciary is constrained to apply principles of
Islamic Law on principles of justice, equity and
good governance in cases not otherwise provided
for.
Art. 3 Elimination of Exploitation
Article 2 and 3 provide two fundamental basis of

the polity in Pakistan—one deals with the
‘statecraft’ and ‘way of life’ and the other, with
one of its (life’s) major facets, namely, economic
and social justice. Such fundamental bases are to
be kept in view while interpreting other provisions
of the Constitution and laws made by its authority.
(PLD 1976 Lah 930)

Exercise of discretion by
government functionaries
Govt functionaries have to act fairly, justly,
equitably, and reasonably. Petitioner was given
the permit to import rikshaws, petitioner
deposited the license fee. Before petitioner could
import rikshaws, the policy changed and
petitioner’ license cancelled. Petitioner denied to
obtain the refund of the import license fee. Court
held, failure to refund the import license fee is
unconstitutional, unfair, unjust and exploitative.
Non payment of salary
In Mst Zaib-Un-Nisa v/sThe Government of Punjab,
Department of Education (1995 CLC 1281) Court held
that the respondents, by not paying salary to the
petitioner for the past more than two years have acted
contrary to these Principles of Policy. They exploited the
situation and denied to the petitioner her valuable right
to remuneration according to her grade which also is in
violation of Article 3 of the Constitution which casts
duty on the State to eliminate all forms of exploitation
and gradual fulfillment of the fundamental principle,
from each according to his ability, to each according to
his work.
Art 4. Right to dealt with in
accordance with Law
It envisages two categories of person:
Citizen of Pakistan: wherever he may be
(whether in Pakistan or abroad)
Every person: for the time being in Pakistan

(only in Pakistan, may not be while
he is outside of Pakistan)
Art 4__Explained
Any public functionary or person taking any action affecting the life, liberty, body,
property or reputation of a person, must rely on some law to justify his action.
Thus a policeman or jailer must be equipped with legal authority to

arrest/imprison a person or,
a person who interferes with another person’s right to carry on his trade,
profession or business with a legal power to regulate or stop such activity.
Similarly a person requiring another person to do something e.g. a jailer requiring

a prisoner to work must have the legal authority to compel the prisoner to do the
particular act.
Constitution in unambiguous terms has provided protection to life, liberty, body,

reputation and property of every citizen……. Every citizen has the right to do
whatever he likes provided it is not prohibited by law. Where an interview of the
petitioner was voluntary, telecasting the same would not violate the guarantees
granted to citizens in terms of article 4. Petition for restraining the television
corporation from telecasting his voluntary interview being devoid of merits was
dismissed.
(1988 CLC 545)
What does term “law” as used in
art. 4 mean?
Does it include “Islamic law”?

What term “law” includes
The word “law” is not defined by the article.
However, it includes:
Statute,
Customs to the extent they are recognized by
statute
International law as adopted by conventions and
incorporated in the domestic system
Judge made law as settled by superior judiciary in
the exercise of its judicial and quasi judicial
powers (1983 PCr. LJ 2182)
Term “law” does not include Islamic Law
Word “law” used in article 4, 8 and 260(3) is confined
to positive law and such Islamic laws as made
applicable by positive law. Argument that “law”
includes Islamic Law can be rebutted by reading
article 4 jointly with articles 227-30 of the
Constitution. (PLD 1975 SC 66)
The term “law” does not include the “the law of God”
or “law of nature” or “principles of natural justice”
unless such laws or principles find a place in legal
system or have been included in that system by
judicial interpretations.
Rahmatllah Khan v/s State (PLD 1965 Pesh 162)
Discretion?
A public official’s power or right to act in certain

circumstances according to personal judgment
and conscience (not according to hard-and-fast
rules).
Exercise of discretion
Discretion is to be exercised in just, fair and proper
manner. Concept of absolute discretion does not
exist in law as it is incompatible with the
guaranties provided in Art 4.
(2003 PLC (C.S) 1161 (b)
Public functionaries cannot make any individual

distinction for any extraneous reasons. Discretion
vested in public functionaries must be free from
arbitrariness and caprice. (1991 MLD 1688)
Act of State
Article 4 is intended to negative any claim by the
government that any category of its acts in relation to
citizens and other persons in Pakistan are not subject to
law at all. Claims have been made in the past that a
particular act which was challenged was an act of State,
therefore, not being liable to be challenged. View taken by
courts, if an act was in fact an act of State, it would not be
subject to law but there could be no act of State with
respect to its citizens. With respect to its citizens the
government has only such powers as are granted to it by
its law. The act of State in relation to other governments,
or sometimes in relation to the citizens of other State, or
in relation to the alien enemy are not subject to law.
(PLD 1966 SC 357), (PLD 1966 SC 1)
Art. 5 Loyalty to State and
obedience to Constitution and Law
Two parts of the article
Loyalty to the State : Citizen of Pakistan
Obedience to Constitution and Law: Every citizen

wherever he may be and every other person while
in Pakistan
The article gives a Constitutional sanction to the

punishment of acts of disloyalty to the State which
are punishable by ordinary law.
Art. 5 Explained
First duty of citizens is loyalty to the State and if a person
commits any offence, then he is not entitled to the protection
of fundamental rights and is liable to be prosecuted and dealt
with in accordance with the law enforced for the purpose. (PLD
2005 Lah 721 a)
It is the duty of each and every citizen to act in accordance with

the law.
If a citizen which includes a person performing functions in

connection with the affairs of the State does not obey the
Constitutional command, then he is not performing his
obligations imposed by the Constitution. High Court can oblige
him to perform his duty under the Constitution. (1997 CLC
1379)
Detenu was already in jail in four criminal cases when District
Magistrate granting request of S.P. ordered his detention under
Section 3, West Pakistan Maintenance of Public Order Ordinance,
1960 for period of three months — Detenu being in jail, by no
stretch of imagination could venture upon or offer or contribute
towards threat to public safety or maintenance of public order,
the sine qua non for pressing into service rigors of the preventive
detention conceived by Section 3, West Pakistan Maintenance of
Public Order Ordinance 1960 — District Magistrate had, thus,
acted blind-folded in purely mechanical fashion without
application of even semblance of independent/judicious mind
manifesting height of irresponsibility in the discharge of official
functions and breach of Constitutional duty contemplated by
Article 5(2) of the Constitution vis-a-vis the Constitutional
guarantees of the citizens.
public servant are not subservient to
the political executive.
In their capacity as advisors in decision making or as
administrators and enforcers of law, public servant are not
subservient to the political executive. It is the obligation of public
servant to remain compliant with the Constitution and law.
Hence they are not obliged to be servile or unthinkingly
submissive to the political executive. One of their prime duties is
to give advise in the best public interest and to administer the
law impartially being in-charge of the machinery of the State.
We reaffirm that while civil servants do have a duty to follow the

policy guidelines and directions of the political executive yet,
because of Article 5 of the Constitution, just like other citizens,
their foremost duty is “obedience to the Constitution and the
law”, not unthinking obedience to all directives (right or wrong)
issuing from the political executive. PLD 2013 SC 195
Art 6. High Treason
As per Black’s Law Dictionary: High treason means a
breach of allegiance to one’s government, usually
committed through levying war against such
government or by giving aid or comfort to the
enemy.
Under Article III, Section 3, of the

US Constitution, any person who levies war against t
he United States or adheres to its enemies by giving
them aid and comfort
has committed treason within the meaning of the
Constitution.
Abrogation meaning
Black’s Law Dictionary: Abrogate means to annul,

cancel, revoke, repeal or destroy
Subversion: overthrowing , destroying
The real distinction between the abrogation and

subversion is difficult to discover; perhaps there is
none, because the overthrowing of the constitution
is the same thing as its annulment.
As amended by 18th amendment
18th amendment added suspension and holding

in abeyance to art. 6
Suspend: to temporarily delay, interrupt or
terminate
Hold in abeyance: adjourn, delay, defer postpone

or retard
What 18 th amendment missed
It should have mentioned abrogation……. The

Constitution “or any part of it”
Part II
Chapter Two
Fundamental Rights
Art 7-12
Definition of State
Definition of State under International Law
Article 1 of the Montevideo Convention on the Rights
and Duties of States, 1933 lays down the most widely
accepted criteria of statehood in international law. It
states that state as an international person should
possess the following qualifications:
(a) a permanent population
(b) a defined territory
(c) government
(d) capacity to enter into relations with other states
(sovereignty)
Definition of State
Arbitration Commission of the European

Conference on Yugoslavia, Opinion No. 01, 1991:
“the state is commonly defined as a community

which consists of a territory and a population
subject to an organized political authority; that
such a state is characterized by sovereignty.”
Definition of State under art 7
In this part, unless the context otherwise requires,
the State means:
Federal Government,
Parliament,
 A Provincial Government,
A Provincial Assembly, and
Local or other authorities in Pakistan as are by
law empowered to impose any tax or cess
Why a different definition of State?
The definition of term ‘State’ at the beginning of
chapter 1, part two that contains Fundamental Rights
is meant to indicate the authorities and
instrumentalities functioning within Pakistan which
shall be deemed to be State and which, therefore,
shall act in conformity with the provisions of part
two of the Constitution.
From the definition of the state it follows that it is not
only the legislative action, but also the executive and
administrative actions taken at the instance of any
agency mentioned in art. 7, that can be challenged on
the grounds that is violative of the fundamental rights
guaranteed by part two
No mention of judicature in
definition of state
Is Judicature not a State/Government Organ?
Why Judicature is excluded from the definition of

State?
Judicature is state organ but it has been excluded
from the definition of state for the obvious reason
that its function is to decide whether a
fundamental right has been violated or not? SC
being on the top judicature, whose decision are
binding on all other courts in Pakistan (art189), the
question that SC has violated fundamental right
will be out of question. However, the court may
review its previous decisions, under art 188, to see,
inter se, that whether fundamental right has been
violated or not?
Does the definition of State Include
autonomous bodies?
The West Pakistan Road Transport Board and WAPDA
are neither federal nor provincial governments,
though they discharge functions which are ordinarily
the functions of the government. (PLD 1974 39) They
can, therefore, fall within the definition of State.
Though these bodies are autonomous, they are
practically controlled by and are department of
government. As the definition of “person” in the
interpretation clause (art 260) includes a body
corporate, these autonomous bodies are persons”
(PLD 1973 Lah 82)
Fundamental Rights against private
persons?
Fundamental Rights are primarily meant to be

enforced against persons acting in the exercise of
powers given to them by law i.e. public officers.
When any such right is infringed by a private
individual, the aggrieved party has his remedy
under the ordinary law.
Right?
Fundamental Right?
Right: an interest recognized and enforced by law
Fundamental Right: An interest recognized and protected by
fundamental law i.e. the Constitution
Part two of the Constitution entitled ‘Fundamental Rights’ contains
a clear statement in regards to the rights of individuals (whether
regarded qua individuals or members of a wider group like a
community or a religious denomination), and these rights are
fundamental not only in the sense that they have been mentioned
in and guaranteed by the constitution but are such as neither the
legislature nor the executive can in any manner curtail or diminish.
These limit legislative and executive powers and are a clog on the
temporary will of the simple majority of the legislature. They
embody a permanent and paramount law which cannot be
disturbed by the will of the legislature or executive. It can be
amended only by an extra-ordinary method of effecting the
constitutional amendment as provided in article 238 and 239.
Fundamental Rights and Human
Rights
Fundamental Rights, guaranteed by the Constitution,
has a domestic outlook and application while ‘Human
Rights’ has an international perspective. The
adequacy of ‘Fundamental Rights’ has to be judged by
the standards of Human Rights as adopted in UDHR
and other international instruments. A reference to
Human Rights is necessary in order to appreciate the
ambit of the concepts underlying the Fundamental
Rights as well for their liberal interpretation.
‘Fundamental Rights’ are the modern name for what
have been traditionally known as ‘natural rights’.
(PLD 1995 Kar 587, PLD 1975 SC 331)
Protection of Fundamental Rights: Art 8
Sanctity of Fundamental Rights is protected by

Art. 8 of the Constitution which prohibits State
which includes Legislature not to make any law by
which Fundamental Rights may be curtailed or
taken away. If any law is made to such effect, to
the extent of such contravention, that law is void.
Fundamental Rights are not liable to abridged by
legislative or executive orders.
(2015 CLC 1723)
Art.8
Laws inconsistent with or in
derogation of Fundamental Rights to
be void
Sub clause (1) and (2) uses different expressions
Sub-clause (1). Any law………..to the extent of such inconsistency,

be void
Sub-clause (2). State shall not make any law……………in
contravention of this clause
The expression in sub-clause (1) includes all laws, existing and

future laws while
The expression in sub-clause (2) is meant to be applicable to
future law
Definition of Law
The definition mentions and includes the following
Statutory Law: It may be either made directly by the

legislature or by other subordinate authority under delegated
law-making powers which may appear under different names,
rules, orders, regulations, notification, etc (AIR 1960 SC 1073)
Likewise ordinances issued by president and governors are

also included in the definition of law.
Customs: Customs or usages having the force of law are also

to be invalid if they are inconsistent with Fundamental Rights
Exceptions:
The article expressly exempts from its operation:
(a) Laws relating to the members of armed forces or of the

police or of such forces as are charged with the
maintenance of public order
(b) (i) laws specified in First Schedule, which were in force

before the commencement of the Constitution or
as amended by any of the laws specified in that
schedule.
(ii) other laws specified in Part I of the First
Schedule
Can new Laws be added to First
Schedule?
Parliament on the strength of Art 8(3)(b)(ii) of the
Constitution could add new laws to Part I of First
Schedule to the Constitution but only through the
process of amending the Constitution. However,
whenever more laws were added to the First
Schedule of the Constitution, each such addition
would need to be scrutinized so as to ensure that
Fundamental Rights were not substantively
altered.
(PLD 2015 SC 401)
Can new Laws be added to First
Schedule?
Art 8(2) of the Constitution closed the door upon any
future law to be exempted from application and
enforcement of the Fundamental Rights…. Provisions of
Art 8(3)(b)(i) of the Constitution only allowed
amendments to the already exempted laws to be also
exempted, but never allowed any other independent
law to be added to the list of already exempted laws.
Words “other laws specified in Part I of the First
Schedule” appearing in Art 8(3)(b)(ii) referred to the
laws specified in Part I of the First Schedule on the
commencing day of the Constitution leaving no room
for addition to the list of specified laws at any future
state. (PLD 2015 SC 401, Minority view)
First Schedule has two parts
Part I &
Part II
According to sub-clause 4, the laws specified in
part II of the first schedule are to be conformed to
Fundamental Rights by the appropriate legislature
within a period of two years. However, no such
direction is made regarding the laws specified in
part I of the said schedule.
Retrospective effect?
The provisions of the Constitution relating to the
Fundamental Rights have no retrospective effect (AIR
1958 SC 287, AIR 1965 SC 502). All inconsistent laws
therefore become void only from the commencement
of the Constitution. Act done before the
commencement of the Constitution in contravention of
provisions of any law, which after the commencement
of the Constitution becomes void with respect to the
exercise of any of the Fundamental Rights, are not
affected. The inconsistent law is not wiped out so far
as the past acts are concerned.
Keshavan Madhava Menon v/s State of
Bombay (AIR 1951 SC 128)
In Keshavan Madhava Menon v/s State of Bombay proceedings had
been started against appellant for an offence punishable under section
18 of Indian Press Emergency Powers Act, 1931 in respect of a pamphlet
published in 1949.
Appellant contended that the Act was inconsistent with the
Fundamental Rights conferred by the Constitution and, therefore, had
become void under Art 13 (1) after January 26, 1950.
SC rejected this contention and held that Art 13(1) does not have
retrospective effect. The article did not have the effect of rendering the
laws, which existed on the date of commencement of the Constitution,
void ab initio for all purposes if they were inconsistent with
Fundamental Rights. Das J. said “Article 13(1) cannot be read as
obliterating the entire operation of inconsistent laws, or to wipe them
out altogether from the statute-book. To do so will be to give them
retrospective effect which, we have said, they do not possess. Such laws
exist for all past transactions and for enforcing all rights and liabilities
accrued before the date of the Constitution.”
Actions valid can’t be questioned
after the law becomes invalid
Keshavan Madhava Menon case makes it quite

clear that an act done before the commencement
of the Constitution, if valid according to the law
then in force, cannot be questioned, even though
after the commencement of the Constitution,
under the terms of the Constitution, that Act is
invalid.
(Also see PLD 1964 SC 673, PLD 1966 Pesh 19)
Rule of Severability
It is not the whole Act that should be held inoperative but only
such provisions of it as are violative of Fundamental Rights.
In State of Bombay v/s F.N. Balsara (AIR 1951 SC 318) the
provisions of eight sections of the Bombay Prohibition Act, 1949,
were held ultra vires on the ground that they infringed the
Fundamental Rights of citizens. But the Act, minus invalid
provisions, was allowed to stand.
But sometimes valid and invalid provisions of an Act are so closely

mixed up that they cannot be separated from one another. In such
cases, the invalidity of the portion must result in the invalidity of
the Act in entirety. The reason is that what remains valid is so
inextricably wound up with the part declared invalid, that the
valid part cannot survive independently.
How to determine that parts are
severable?
In determining whether the valid parts of the
statute are severable from invalid parts thereof, it
is the intention of the legislature that is
determining factor.
(AIR 1957 SC 628, AIR 1984 SC 161)
In other words, the question should be asked
whether the legislature would have enacted all
that which survives without enacting the part
found ultra vires? (AIR 1952 SC 252)
Art 9 protects Life and Liberty
Word “life” has been interpreted in Shehla Zia Case (PLD 1994 SC
693)
The petitioner challenged, due to potential health risks and
hazards, the Water and Power Development Authority's (WAPDA)
construction of an electricity grid station in their neighborhood,
on designated "green belt" property.
Court held that the word life in the constitution has not been used
in limited manner. A wide meaning should be given to enable a
man not only to sustain life but also to enjoy it. Court further held
that word life is not restricted to animal life or to vegetarian life. It
carries with it the right to live in a clean atmosphere, a right to live
where all fundamental rights are guaranteed, a right to have a
rule of law, a right to have a clean and uncorrupted administration
to govern country and right to have protection from encroachment
on privacy and liberty.
Liberty: Liberty is defined by Oxford Dictionary as being “free from
control”. According to Prof Goodhard, “It is the right or power to do
one pleases”. It is obvious that in this sense complete liberty is
impossible, because liberty if carried out to excess can lead to
anarchy. The moment we join society we must surrender some of
our liberty, as the fact that a society exist means that its members
are governed by a body of rules.
Words “in accordance with law” empowers the courts to see

(a) if the deprivation of life or liberty of a person is under any law,
and
(b) whether the law is valid law
The law contemplated by art 9 is one which is passed by a
competent legislature and which is not repugnant to any other
article relating to Fundamental Rights or other provisions of the
Constitution.
A punitive statute must not be vague
A punitive statute which often results in

deprivation of life or liberty must be clear and not
vague.
A punitive statute must not be vague. It is
necessary before holding a person guilty of an
offence that he must be in a position to know what
he has to do or abstain from doing. When a statute
is vague, the courts may declare it void.
(AIR 1950 SC 27)
JAMIAT-ISLAM PAKISTAN through Syed Munawar
Hassan,
V/S
FEDEARTION OF PAKISTAN through Secretary, Law,
Justice and
(PLD 2000 SC 111)
Section 5(2)(i) of Anti-Terrorism Act, 1997 as introduced by
Ordinance XIII of 1999 to the extent, the same authorised 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 was likely to commit a terrorist act or any scheduled
offence without being fired upon, was violative of Article 9 of
the Constitution as well as the guidelines provided in the case
of Mehram Ali and the same is held to be invalid to the above
extent and required to be suitably amended.
JAMIAT-ISLAM PAKISTAN v/s FEDEARTION OF PAKISTAN
(PLD 2000 SC 111)
Every citizen has the inalienable right under the Constitution to

know what is prohibited by law and what the law does not
require him to do. It is, therefore, incumbent upon the State to
express in clear terms susceptible of being understood by an
ordinary citizen of what is prohibited and to provide definite
standards to guide discretionary actions of police officers so as to
prevent arbitrary actions of police officers and to prevent
arbitrary and discriminatory operations of section 7-A of the
Anti-Terrorism Act, 1997. In other words, it must be spelt out
from a bare reading of section 7-A as to what constitutes
“internal disturbances”, “illegal strikes”, “go-slows” and “lock-
outs” in terms of section 7-A of the said Act.
We, therefore, hold that section 7-A of the impugned Act to the
extent indicated above is invalid being repugnant to the
Constitution and requires to be suitably amended.
Difference b/w Art 4 and Art 9?
Art 9 occurs in part II as Fundamental Right, Art 4

(2) (a) is outside that part. Therefore, on the
proclamation of emergency operation of art 9
may be suspended while art 4 remains in force
even during an emergency.
Art 10. Safeguard as to arrest and detention
Art 10 can be divided into two parts:
(B) Persons arrested under law relating to

preventive detention
Clause (1) and (2) enjoins:
(i) that a person so arrested shall not be detained in custody

without being informed, as soon as may be, of the
grounds of arrest
(ii) that he shall not be denied the rights to consult and be

defended by a legal practitioner of his own choice, and
(iii) that within a period of 24 hours he shall be produced

before a magistrate
But these conditions do not apply to a person arrested under
any law relating to preventive detention.
(B) Persons arrested under law relating
to preventive detention:
Clause (4)
In the case of a person arrested under any law relating to preventive
detention the conditions are:
(i) that the law under which he is arrested or detained shall only deal with
persons acting in a manner prejudicial to the integrity, security, or defence
of Pakistan or any part thereof or external affairs of Pakistan, or public,
order or the maintenance of supplies or services;
(ii) that the law shall not authorize the initial detention of the person for a
period exceeding three month; though he may be further detained if the
Appropriate Review Board (ARB) after affording him an opportunity of
being heard in person and reviewing the case reports before the expiration
of three months that in its opinion there is sufficient cause for his further
detention;
(iii) if the ARB so reports he may be held for a further period of three
months but if it is intended to detain him beyond that period, the opinion
of ARB for his further detention must be obtained before the expiration of
each period of three months;
(B) Persons arrested under law relating
to preventive detention:
(iv) that within fifteen days of his detention, the detaining authority shall
communicate to him the grounds on which the order was made and shall
afford him an early opportunity of making a representation. The authority
may, however, refuse to disclose to him facts which it considers to be
against public interest to disclose;
(v) that the authority shall furnish to the ARB all relevant documents unless
the Secretary to the Government concerned certifies that it is not in the
public interest to disclose the contents of any particular document;
(vi) that within a period of 24 months commencing on the first day of his
detention no person shall, unless he works for the enemy, be detained for
more than a total period of eight months if he was arrested for acting in a
manner prejudicial to public order and twelve months in any other case. (i.e.
acting in manner prejudicial to the integrity, security, or defence of Pakistan,
or external affairs of Pakistan, or the maintenance and supplies of services)
Maximum period of detention
Maximum period of detention is 08 months in case of a person
detained for acting in a manner prejudicial to public order and 12
months in any other case. The period must fall within 24 months
commencing from the date of his first detention. Thus, in a case of
person detained for acting in a manner prejudicial to public order,
03 references to ARB will be necessary, one before the expiry of
initial period of three months and two before the expiry of each
period of three months, if it is intended to detain him for the
maximum period of 08 months.
In other cases 04 references will be needed if he is detained for a

maximum of 12 months. But there is nothing to prevent a fresh
order of detention being made after the expiry of 24 months,
though such order must be made on fresh grounds and should not
be a continuation of the original order with a break after 24
months. (Ghulam Jilani v. Federation of Pakistan PLD 1975 Lah 65)
PLJ 2003 SC 161
[Appellate Jurisdiction]
FEDERATION OF PAKISTAN, through SECRETARY MINISTRY
OF INTERIOR, ISLAMABAD-Petitioner
versus
Mrs. AMATUL JALIL KHAWAJA and others-Respondents
Brief Facts
 Al-Qaeda's most wanted terrorists were

being harboured and
facilitated at Manawan Compound ownership
whereof rests with Dr. Ahmed Javed Khawaja and
his family. Three Saudian passports, three Egyptian
passports, one Afghani passport and the foreign
currency of USA, Saudi Arabia, Afghanistan, Iran and
UAE were also recovered.
Brief Facts
 The Federal Government in exercise of powers as conferred

upon it under the provisions as contemplated under Section
3(l)(b) of the Security of Pakistan Act, 1952 (XXXV of 1952)
passed an order detaining Dr. Ahmad Javed Khawaja,
Ahmad Nadeem Khawaja sons of Haji Muhammad Yunus,
Dr. Khizar Ali, Dr. Umar Karar sons of Dr.
Ahmed Javed Khawaja and Muhammad Usman son of
Ahmad Naveed Khawaja on account of their prejudicial
activities against State on behalf
of some Foreign Government/Organization detrimental to
the Security of Pakistan.
 The above named persons were directed to be detained in any

jail located within the territorial jurisdiction of Province of the
Punjab initially for a period of three months.
Brief Facts
 The grounds of detention were duly
served on the detenues who filed representations
against the detention order before the Federal
Government which were yet to be decided.
Mr. Amatul Jalil Khawaja wife of
AhmadJavaid Khawaja (Respondent No. 1) preferred a
Constitutional petition under Article 199 (1) (b) (i) of the
Constitution of Islamic Republic of Pakistan 1973
assailing the said order which has been partly
accepted to the extent of Dr. Umar Karar Khawaja,
Dr. Khizar Ali Khawaja and Muhammad Usman Khawaja
while dismissed qua Dr. Khawaja Ahmed Javed and Kh.
Ahmed Naveed.
 Federation preferred appeal against the judgment of HC.

Pivotal issue/ question
Whether sufficient incriminating
material justifying the detention of respondents
under Section 3(l)(b) of the Security of Pakistan
Act, 1952 was available which could not be
appreciated in its true perspective by the learned
Single Judge who erred in substituting his
own opinion to that of Federal Government by
misconstruing the provisions of Section 3 of the
Security of Pakistan Act, 1952 and misinterpreting
the word "satisfaction" as used therein which
resulted in serious miscarriage of justice.
Court held that that satisfaction can only be based on some
evidence or record justifying the detention order which is
badly lacking in this case. The learned Deputy Attorney
General has stated that sufficient evidence has been
collected but nobody knows where is that evidence, what is
the nature of sensitivity and why it could not be brought
before the learned
Single Judge in chambers. The contention of
learned Deputy Attorney General that the said material
could only be shown to Review Board is not understandable
for the reason that if it could be shown to the Review Board
how it could be withheld from the High Court.
In the light of what has been stated herein above
we are of the considered opinion that the
conclusion as arrived at by the learned High Court
being well based does not warrant interference
and the detention order could not be justified on
the basis of material made available to
the learned Single Judge. The petition
being meritless is dismissed and leave declined.
Ratio Decidendi
It is not the satisfaction of only detaining authority but judicial

conscious is also
required to be satisfied that satisfaction of detaining authority
should have been based on actual and real facts and not on mere
suspicion, doubt or conjectural presumptions. Even the subjective
satisfaction does not mean satisfaction of the authority without
any base-No doubt that the words "satisfaction" has been used in
Section 3 of the Security of Pakistan Act, 1952 but the powers
conferred upon the High Court by the Constitution under Article
199 cannot be limited or taken away by a sub- Constitutional
legislation and therefore, a balance is to be maintained between
the powers conferred upon the High Court by the Constitution and
the relevant provisions of sub-Constitutional legislation-It is for
the High Court to consider as to whether there were grounds upon
which any reasonable person could have been satisfied as to the
necessity of detention.
Art 10-A. The Right to Fair Trial
‘Fair Trial’ and ‘Due Process’ as defined by Black’s Law

Dictionary:
Fair Trial__ “a trial by an impartial and disinterested tribunal

in accordance with the regular procedure; esp., a criminal
trial in which the defendant’s constitutional and legal rights
are respected.”
Due Process__ “The conduct of legal proceedings according

to established rules and principles for the protection and
enforcement of private rights, including notice and the right
to fair hearing before a tribunal with the power to decide the
case.”
Hamdi v. Rumsfeld
542 U.S. 507 (2004)
Facts
 Congress passed a resolution authorizing the President to "use

all necessary and appropriate force" against terrorists or
those who harbored terrorists.
 Government detained Yaser Hamdi for allegedly fighting
with the Taliban during the Afghanistan war.
 Hamdi was born an American citizen, moved to Saudi Arabia
as a child, and eventually to Afghanistan.
 Hamdi was transported to Guantanamo Bay, then, upon learning
of his American citizenship, transferred him to the U.S.
 Govt claims that he is an enemy combatant, and therefore the
govt can hold him indefinitely.
Issues
 Does the executive have the authority to

detain citizens who qualify as "enemy
combatants"?
 What process is constitutionally due to a

citizen who disputes his enemy-combatant
status?
Court held that a citizen detainee seeking to challenge enemy
combatant status must receive notice of the factual basis for his
classification and a fair opportunity to rebut the gov't's factual
assertions before a neutral decision maker. However, the
proceedings may be tailored to alleviate burden on Executive. For
example, hearsay could be allowed and there could be a
(rebuttable) presumption in favor of the government.

State of war is not a blank check when it comes to the right of
citizens.
When individual liberties are at stake, the Constitution plays a role
A citizen detained as an enemy combatant is entitled to due process

Art 11. Slavery, Forced labour, etc
prohibited
Non-payment of salary amounts to slavery and

forced labour
Under the Constitution it was the bounden duty of

those for whose benefit services were rendered, to
pay emolument due, for otherwise it would
amount to slavery and force labour which was
prohibited by the Constitution.
1997 PLC (C.S.) 662
Human trafficking
Petitioner, a lady, apprehended her sale by her father
for a consideration of Rs. 100,000 who was indebted
to a Zamindar and she having married to a minor
wanted to approach the Family Court for getting her
unlawful marriage dissolved. However, petitioner
apprehended her abduction by her father in collusion
with the influential persons of the area and certain
police officers and approached HC for protection and
seeking necessary restraint orders. HC held
Constitution prohibited slavery and trafficking in
human being, thus ordered for providing her protection
and safe passage to the concerned Family Court.
(PLD 1997 Kar 309)
Art 12. Protection against retrospective
punishment
Generally Legislature has the power to make all laws,
including the laws having retrospective effects.
However, when (mostly in case of written constitution)
its powers are subject to the constitutional restrictions
then it has to exercise its powers within those
restrictions. One such restriction is contained Art 12,
that is, the legislature cannot punish by retrospective
legislation an act (except High Treason) that was not an
offence at the time it was done or prescribe
retrospective for the offence a greater or a different
penalty than was prescribed for it at the time it was
committed.
Different punishment if lesser?
On the plain words of the Article, the change of

one kind of punishment by another would be
invalid because the article used disjunctively the
expressions of “greater than” and “of kind
different from.” The new punishment may be
lesser than the original, but if it is of different
kind, the accused may object to it.
(PLD 1997 Lah 285 (f))
Accused being known Quadianis while submitting form ‘A’ for

obtaining NIC had allegedly professed his religion in the relevant
column to be Islam. Said form ‘A’ had been filled and submitted by
the accused in the Registration Office on 28/08/1982 whereas
professing Islam as their religion by Ahmadies or Quadianis was
made an offence through the promulgation of Ordinance XX of
1984 w.e.f. 16/04.1984. Evidence recorded by the accused
(petitioner) openly claimed to be Ahamdies and never professed
their religion as Islam particularly after the promulgation of
Ordinance XX of 1984 and even in form ‘B’ concerning the
registration of his children subsequent to the promulgation of the
said Ordinance he entered their religion in the relevant column as
Ahamdi. Involvement of the accused in the case, thus, was in utter
disregard of Art 12(1)(a) of the Constitution. Proceedings in
progress in the trial court being as absolute abuse of the process of
law and process of court were quashed.
Mian MUHAMMAD NAWAZ SHARIF and others---Appellants
versus
THE STATE and others---Respondents
(P L D 2002 Karachi 152)
Section 402-A, 402-B, and 402-C of PPC were added to the schedule to
the Anti-Terrorism Act, 1997, on 02/12/1999. The present incident took
place on 12/10/1999. The said sections did not exist in the schedule to
ATA, 1997, consequently within the meaning of section 6(b) of ATA, 1997,
offences under section 402-A, 402-B, and 402-C of PPC were not schedule
offences on the day on which the incident took place but they became
triable by virtue of section 38 of ATA, 1997. Provisions of section 38
provide in express terms that a person so tried shall be liable to
punishment as authorized by law at the time the offence was committed.
Punishment of the accused, in circumstances, would only be for the
offence of hijacking as provided on the day on which the offence took
place. Sentences to the accused therefore, could be awarded only for
hijacking under section 402-B, PPC and punishment for hijacking as
provided under section 7(ii), ATA, 1997 could not be provided.
Does Art 12 cover the civil liberties?
Art 12 of the Constitution deals with punishments of

offences and not with civil liberties. Law contained in
section 8 of the Political Parties Act, 1962 deals
merely with the creation of a bar or disqualification
for being or being elected member of provincial and
national assembly. Parliament being authorized
under the Constitution to enact law laying down
disqualifications for being elected and being member
of parliament as well as to enact laws regarding
election to such assemblies. Amending such laws is
within the legislative competence of the legislature
and not in contravention of art 12 of the Constitution.
(PLD 1976 Lah 1504)
Fundamental Rights
Art. 13 to Art. 20
Art 13 Protection against double
punishment and self-incrimination
The article raises to a Constitutional status the
principles contained in
(a) Section 403 of Cr.P.C. (autreofois convict and

autreofois acquit) known as protection against
double jeopardy, and
(b) a part of section 132 the Evidence Act, 1972

Protection against double jeopardy
Sec. 403 of Cr.P.C. provides that a person who has once been
tried by a competent court for an offence and convicted or
acquitted of such offence, shall while such conviction or acquittal
remains in force, not be liable to be tried again for the same
offence nor on the same facts for any other offence for which a
different charge from the one made against him might have been
made under section 236 or for which he might have been
convicted under section 237. This is also known as rule against
double jeopardy.
The principle also exists, in modified form, in section 26 of the

General Clauses Act, 1897 which provides that where an act or
omission constitutes an offence under two or more enactments,
then the offender shall be liable to be prosecuted and punished
under either or anyone of those enactments but shall not be
liable to be punished twice for the same offence.
Double jeopardy
Same Offence. The important words in the Article are “the same offence.”
The article does not, therefore, bar subsequent trial for a ‘distinct’ or
‘different’ or ‘other’ offence as described in sub-sections (2) and (3) of
section 403 of Cr.P.C.
Working men forcibly entering office of Manager of Mills insulting, beating,
wrongfully restraining and confining him and forcing him to write an order.
Police Challaned accused workmen under section 142, 323, 341, 342 and
504, PPC but charges later on withdrawn by the Govt. Manager of Mills
meanwhile lodged complaint before National Industrial Relations
Commission in respect of the same incident for an offence under section
161() read with sec. 53 of Industrial Relations Ordinance. Workmen were
convicted there for. Ingredients of offence under PPC for which accused
workmen were charged and prosecuted, held, materially different from
ingredients constituting offence for which they were prosecuted and
convicted by the Commission. Mere fact that two prosecutions arose out of
the same incident or some facts therein were common makes no difference.
Prosecution and conviction of the accused workmen by the Commission,
held, not violative of Art 13(a) of the Constitution. (PLD 1977 Kar. 145)
Double jeopardy
Two enquiries respecting same matter pending against petitioner,
one being departmental with Consolidation Officer and other
with Anti-Corruption Department respecting his criminal liability
could go side by side. Petitioner relying on art 13 of the
Constitution and sec 403 of Cr.P.C. contended that since another
enquiry was already pending against him respecting same matter
before Consolidation Officer, same could not be probed into by
the Anti-Corruption Department. The contention was repelled on
the ground that protection against double punishment would
come into play if accused had already been prosecuted or
punished. Provisions of sec. 403, Cr.P.C. would only be attracted if
the accused had been tried by a court of competent jurisdiction
for an offence and had been convicted or acquitted.
(PLD 1968. Lah 876, PLD 1885 SC 134)

Double jeopardy
Word ‘prosecution’ includes commencing,
conducting, and carrying a suit to conclusion in Court
of Justice. Fresh prosecution for the same offence
barred only when prosecution finally concluded and
ended either in acquittal or conviction. Petitioner in
first instance tried by Military Court, later on lifting
martial law case tried by a Magistrate and lastly
ordered to be transferred to Session Court.
Prosecution in none of such forums pursued to end.
Petitioner’s trial, held, in no way abrogratory to
principles autreofois convict and autreofois acquit or
violative of the art 13 of the Constitution.
(PLD 1977 SC 657)
Double jeopardy
Some hardcore criminals escaped from the custody of two police
constables. They were charged under section 223/224 PPC besides this,
departmental enquiry was also initiated against them. In addition a
judicial enquiry was also ordered against the constables.
They challenged the departmental and judicial enquiries against them
contending that a criminal case against them is pending, therefore, these
enquiries should be stayed till the final adjudication of the criminal case.
Court held that departmental enquiry cannot be connected with criminal
case which is altogether independent proceeding. Slackness on the part
of petitioners could be dealt with under Efficiency and Discipline Rules….
If they feel aggrieved by show cause notice served on them, they have
remedy to assail the said notice before the appropriate departmental
authority. Judicial enquiry which is being conducted against the
petitioners on executive side was also altogether independent
proceeding and it cannot be said to be a case of double jeopardy against
the petitioners.
(PLD 1998 Lah. 211)
Self-incrimination
The rule against self-incrimination as stated in section 132 of
Evidence Act, is that “A witness shall not be excused from
answering any question as to any matter relevant to the matter
in issue in any suit or in any civil or criminal proceeding, upon the
ground that the answer to such question will incriminate, or may
tend directly or indirectly to incriminate, such witness, or that it
will expose, or tend directly or indirectly to expose, such witness
to a penalty or forfeiture of any kind:
Proviso.
Provided that no such answer, which a witness shall be
compelled to give, shall subject him to any arrest or prosecution,
or be proved against him in any criminal proceeding, except a
prosecution for giving false evidence by such answer.”
The same rule has been adopted in article 15 of Quanoon-e-
Shahadat Ordinance, 1984.
Self incrimination
Protection from self-incrimination. Prohibition
contained in art 13 (b) would attach only to
incriminating material otherwise than through
compulsion. Such protection could be claimed as well
as waived by the accused.
Art 13 (b) by its own force excludes:
(i) voluntary presentation of incriminating material,
(ii) production of non-incriminating material which
may advance investigation or even exonerate
accuse, and
(iii) production of incriminating material otherwise
than through compulsion.
Art. 14 Inviolability of dignity of man,
etc
Inviolability of dignity of man is absolute
Inviolability of Privacy of home is qualified, subject

to law it can be violated.
Protection against torture

Dignity of man
‘Human dignity’ means the status of human beings entitling
them to respect, a status which is first and to be taken for
granted. (Mette Lebech, Faculty of Philosophy, National
University of Ireland, Maynooth).
The idea that it is improper to degrade another human being

comes from the current of thought often described as
‘dignitarian’, and best represented by the first article of the
German Constitution, which states: ‘The Dignity of Man
shall be inviolable. To respect and protect it shall be the duty
of all state authority.’
This approach has been widely adopted in the transition

democracies including Pakistan.
Dignity of man
Since inviolability of dignity of man is absolute, therefore,
any law that violates the dignity of man will be
unconstitutional.
What is dignity of man? What is human dignity and what
violates it is a question of fact to be determined in
accordance with the view of contemporary society. For
example, hanging to death, public whipping, etc could be
considered as cruel, inhuman and violative of the dignity of
man in west but in Islamic societies these punishment are
valid and not cruel or inhuman. Human dignity led to the
decision that life prison sentences without even the hope of
parole were unconstitutional, just as the idea led the
Hungarian Constitutional Court to the judgment that the
death penalty itself was unconstitutional.
Privacy of home
Privacy of home is subject to law, therefore, if law
permits an official to enter a house as for
example, for making an arrest, there would be no
violation of the article.
Plaintiff aggrieved by or apprehensive of violation

of rights of easement and privacy on account of
unauthorized construction by the defendant was
given stay order against the said construction.
(1989 CLC 193)
Violation of dignity of man and
privacy of home
Female charged to be prostitute or to keep or
manage brothel under Hudood Ordinance, 1979.
Prosecution case solely relied on spy information
which could not be substantiated at trail; no body
from the local resident came forward to support the
prosecution. No money was recovered from the
personal search of the female accused or the male
accused at time of their arrest not a warrant from
Ilaqa Magistrate was obtained. Court held dignity of
man and privacy of home were violated by
investigation officer. (2001 PCr. LJ 1243)
Confession obtained through torture.
Accused not only pressurized mentally and

physically but police also hypnotizing and luring
accused into subscribing confession as much as he
was put into cells of a fort which though notified
as a sub-jail which was thickly dark and dingy,
depicting ghastly picture of grave. None could
maintain balance of mind, confession made in
such circumstances was held not to be voluntary
and violative of art 14(2). (PLD 1978 Pesh 38)
Art. 15 Freedom of movement, etc
Right to remain in Pakistan is absolute
Right to enter, move freely and settle in any part of

Pakistan is subject to reasonable restriction imposed by
law.
The main, if not the sole purpose behind the safeguard in

this article is to remove all territorial barriers within the
country for citizens of Pakistan. It is designed to be a check
against provincialism, regional discrimination and all
parochial considerations. Subject to reasonable restriction
imposed by law in the public interest, a citizen is free to
move about, settle and reside in any part of Pakistan.
Petitioner, a professor was selected and allowed to
participate in a conference abroad; was given NOC by the
university to participate in the said conference. On returned
was asked by the university to produce her passport, she
declined. When pressurized, she filed a writ petition.
Court held, passport was a document which was issued to
every citizen as a matter of his right to enjoy freedom of
movement. Except when under the relevant rules passport
was necessary to be shown as entry or exit to and from a
country or unless it was required under the law for
investigation of crime or any other purpose specified by law,
a citizen was entitled to keep same with him as personal
property. Petitioner could not be forced to hand over her
passport to the authorities especially when authorities were
not armed with any provisions of statutory rules or law
under which they could inspect the passport of the
petitioner. (PLD 1996 Kar 446)
Refusal of passport
Citizen’s right to travel abroad is an essential
aspect of liberty. Before a person is finally refused
grant of passport on certain grounds based on
materials in possession of relevant authorities,
has to be given opportunity of hearing. When the
petitioner is refused grant of passport without
providing him an opportunity of hearing, the
order of refusing issuance of passport to the
petitioner is illegal and violative of the
Constitution. (PLD 1978 SC 504, PLD 1981 Kar 98)
Placing name on ECL.
Petitioner was alleged to be a member of a Liberation Front. His
name was placed on ECL on the ground that he obtained passport. No
material was recorded to show that he was involved in a criminal
case and was trying to escape a criminal liability.
Govt can prohibit citizens under sec 2 of Exit From Pakistan (Control)
Ordinance, 1981 from proceeding abroad. Such powers are wide
enough whereby it would not be necessary for Govt to afford an
opportunity of show cause against such order and to specify grounds
on which the order was made. Such powers, however, should not be
exercised wildly, arbitrarily or capriciously, but should be exercised
in accordance with constitution. Such powers are to be examined
with great caution and care and judicious application of mind. Mere
apprehensions that a citizen could be involved in a criminal case, was
not sufficient to place his name on ECL and deprive him from his
fundamental right of liberty.
(PLD 1977 Lah 657, 1998 MLD 490)
Right of citizen to travel abroad is a fundamental right
guaranteed by constitution of Pakistan, abridgement of
such right by State through legislative measures has to be
tested on touchstone of the Constitutional provisions.
Section 2 Exit From Pakistan (Control) Ordinance, 1981
failing to provide any guidelines or reasonable classification
for taking action against a person and prohibiting him from
travelling abroad and denying him valuable right of being
heard and of knowing the reasons of such action, was ex
facie discriminatory and capable of being administered in a
discriminatory manner. Since no reasons are assigned to
aggrieved person, the remedy of review under sec. 3 of the
Ordinance by making representation becomes redundant.
Validity of the Ordinance cannot therefore sustain on the
touchstone of constitutional provisions.
Reasonable restriction:
The state has the power to impose reasonable restrictions on
the right of freedom of free movement of a citizen where such
restriction is necessary in the interest of general public. Thus the
law restricting the movement of prostitutes in a part of town,
(PLD 1958 Lah 929, PLR 1959 (1) W.P.) or restriction of person,
under Goonda Act, are reasonable restrictions.
The question whether a law imposes reasonable restrictions on

the freedom of movement and residence of a person is
justiciable, and in determining this question the court has to
look at the nature and extent of the restriction, the manner in
which it is imposed, the nature of right alleged to have been
infringed and the underlying purpose of the restriction imposed.
(PLD 1958 SC (Pask 41), PLD 1957 Lah 676)
Art. 16 Freedom of assembly
To claim the protection of article 16, the assembly must fulfill two
qualifications:
 Assembly members must not wear arms

 Assembly must be for peaceful purpose
The fundamental right to assembly can be restricted by laws which have

their object the maintenance of public order. The restriction imposed
must be reasonable and it is for the Court to decide in each case that
whether the restriction is reasonable or otherwise. The Court will have to
take into consideration the conditions prevailing at the time, the nature,
extent and the duration of restriction, and all the surrounding
circumstances. (PLD 1975 Lah 213, PLD 1965 Lah 642).
For example, freedom of assembly may be restricted to a greater extent

in times of emergency than in normal times.
Assembly must be peaceful
It is not the fundamental right of a citizen to carry
arms to an assembly even if he holds a license for
their possession, or to join an assembly the object
of which is not peaceful. Therefore section 141 and
153 of PPC which provides for punishment of
members of an unlawful assembly, or sections 124-
132 of Cr. P.C. which authorize the use of force to
disperse an unlawful assembly cannot be said to be
violating the fundamental right of assembly.
Similarly, powers of district administration under
sec. 144 of Cr. P.C. are not unconstitutional, if used
in good faith and for the protection of public
interest.
Public Order: Public order is not defined anywhere, but
danger to property, human life and safety and disturbance
of public tranquility (as used in sec. 144 of Cr.P.C.) fall
within the purview of reasonable restriction imposed by
law in the interest of ‘public order.’ (PLD 1957 Lah 213)
Regulating use of public places: Without abridging the

right of assembly, the Govt may reasonably and without
discrimination regulate the use of places wholly within its
control by requiring permits for public assemblies in the
street or parks; but any requirement of permit would
violate the constitution where absolute discretion is vested
in a public official deny a permit.
Art.17 Freedom of association
 Every citizen has the right to form association or union subject to
reasonable restriction imposed by law in the interest of sovereignty or
integrity of Pakistan, public order of morality
 Every citizen, except those who are in the service of Pakistan, have
the right to form or become a member of any political party subject to
reasonable restriction imposed by law in the interest of sovereignty and
integrity of Pakistan. Such law shall provide that where a political party is
operating prejudicially to the sovereignty or integrity of Pakistan, the
federal govt may make a declaration to that effect. If such declaration is
made, then within fifteen days the federal govt shall refer the matter to
Supreme Court and whose decision shall be final on such reference.
 Every political party shall account for the sources of its funds in
accordance with law.
Sub-clause (1) does not mention public servant. Therefore, public
servants are not prohibited from making an association or union. But
they are prohibited from making a political party as sub-clause (2) clearly
mentions them.
Reason/need of union
Alone we beg, together we demand.
Alone I cry, together we shout.
What a person may do alone, he may do it better with

assistance and cooperation of others. This is why
individuals have the right to organize themselves into
union and parties to advance causes and circulate
their views. It is only when they combine for illegal
purposes, that the law prohibit their associations. It is
for this reason that the right to from association or
political party has been made subject to reasonable
restriction imposed by law.
Trade Unions: Formation of trade union is governed by the Trade
Unions Act, 1962
Political Parties: The formation of political parties in Pakistan is

governed by the Political Parties Act, 1962. Section of the Act provides
that no political party shall be formed with the object of propagating
any opinion, or acting in a manner prejudicial to the Islamic Ideology, or
the integrity or security of Pakistan and that no person shall from,
organize, set up or convene a foreign aided party, or in any way
associated with any such party.
Art. 17 confers inherent right on citizen of country to form association

or unions subject to reasonable restrictions imposed by law………………
Order completely banning the activities of petitioner union was wholly
void being in conflict with art. 17(1), therefore, was set aside.
(PLD 1997 SC 781)
Graduation Condition for becoming
member of legislature
PAKISTAN MUSLIM LEAGUE (Q) AND OTHERS
V/S
CHIEF EXECUTIVE OF ISLAMIC REPUBLIC OF PAKISTAN AND OTHER (P L D 2002 SC 994)
It was contended that:

 condition of graduation is unreasonable and irrational in the
light of prevailing literacy rate in the country;
tended to create an elitist class;
curtailed the choice and consent of the governed;
took away the right of adult franchise and universal suffrage.
Provisions of Art 8-A of Conduct of General Elections Order, 2002 be

declared violative of the Fundamental Rights as contained in art 17 and
25.
Court held that educational qualification will not only
raise the level of competence and change political
culture but will also be an incentive to education. All
citizens are equal before law and are entitled to equal
protection of law but state is not prohibited to treat
its citizens on the basis of reasonable classifications.
In the light of equal protection and reasonable
classification as explained above Conduct of General
Elections Order, 2002 is reasonable and not arbitrary
being a step toward transformation of political culture
and applicable to all graduates.
Constitutional petition (2008)
Graduation Condition, void
Muhammad Nasir Mahmood and another … PETITIONERS
VERSUS
Federation of Pakistan through Secretary Ministry of Law, Justice and
Human Rights Division, Islamabad. … RESPONDENT
The provisions of Article 8-A of the Conduct of General Election Order, 2002
(Chief Executive’s Order No. 7 of 2002) and clause (cc) of subsection (1) of
section 99 of the Representation of the People Act, 1976, which lay down
that a person shall not be qualified to be elected or chosen as a member of
Majlise-Shoora (Parliament) or a Provincial Assembly unless he is at least a
graduate possessing a bachelor degree in any discipline or any degree
recognized as equivalent by the University Grants Commission under the
University Grants Commission Act, 1974 or any other law for the time being
in force are declared to be void prospectively on account of their being
inconsistent with Articles 17 and 25 of the Constitution.
Art. 18 Freedom of trade, business
or profession
Every citizen of Pakistan is entitled to engage in any lawful
profession and occupation and to conduct any lawful trade
or business, but the State may, by law:
 Prescribe qualifications for the practice of a
profession, occupation, trade or business;
 Regulate any trade or profession by a licensing
system;
 Regulate any trade, commerce or industry in the
interest of free competition; and
 Assume for itself or grant to a government
controlled occupation, the monopoly, complete
or partial, of any trade, business, industry or service.
The world ‘lawful’ before the words ‘profession’
and ‘trade’ in the principal paragraph has the
import of enabling the State to completely ban a
profession, occupation, trade or business by
declaring it unlawful. As unlawful means
anything forbidden by law. The legislature may
forbid, by law, any profession, occupation, trade
or business which is immoral e.g. prostitution,
trafficking in women, or which is danger and
injurious to public health e.g. sale of narcotics,
adulterated food, etc.
Appointment to Public Office
Appointment to public office should be through a transparent process by
advertising the posts in newspaper of wide circulation enabling all and
sundry possessing requisite qualifications to try their luck by submitting
applications as required and an independent selection committee
comprising of subject specialists was to be convened to pick up candidates
strictly on merit. After undergoing rigours of test and interviews, selected
candidates have to prove their fitness on medical grounds and it was only
then the induction in service could be termed to be clean and honorable
in accordance with art 18 of the Constitution.
(1999 Kar 472, 1991 SCMR 483)
Where government, statutory bodies or public authorities made initial

recruitments, both ad hoc and regular, to posts and offices without
properly advertising the vacancies and later on converted the ad hoc
appointments into regular appointments, it was held that the practice is
violative of art 18 which guarantees every citizen the freedom of
profession. (1996 SCMR 1349)
Commissioner issued order that no stamp-vendor should be
allowed to work, at any place in any court or office in the
district as stamp-vendor or petition writer. Court held that
such order was of no legal effect and being inconsistent with
fundamental right to freedom of trade, business or
profession as guaranteed in art 18. (1987 CLC 1608)
Declaration of zones and restriction that sugarcane in a

reserved area can only be supplied to a particular sugar mill,
does not violate art 18, as it did not affect right any sugar
cane owner to enter upon his lawful profession and to
conduct his business. (PLD 1987 Kar 225)
Art.19 Freedom of Speech, etc
‘Glory of Islam’ permits the freedom to speak in favour of or for
propagating Islam but no propaganda against Islam is permitted. If
this is the meaning then it may conflict with the provisions of art
20 which grants the right to propagate one’s religion since the
propagators of religion often compare their religion favorably with
others and in the process are apt to criticize other religion.
Freedom of Speech and freedom of Press are the same as freedom

of press is not confined to newspapers and periodicals but also
embraces pamphlets, leaflets and every sort of publication
affording a vehicle of information and opinion. Similarly, the right
to speech is not to public addresses or words of individuals but
necessarily embraces every form and manner of dissemination of
ideas that best-fitted to bring such ideas and views to the
attention of the people who concerned them most.
Freedom of speech and Censorship
In USA, the chief purpose of constitutional guarantee of freedom of
speech is to prevent restraint and censorship laws. Therefore, no law
can provide for censorship or restraint on the freedom of speech.
The First Amendment says that Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances. This is the
reason that US put reservation to ICCPR and did not sign the
additional protocol.
However, under our constitution the position is different. Laws

providing previous restraint or censorship would be valid provided
that they are held by the court to be reasonable restrictions
imposed by law in the interest of glory of Islam, security of Pakistan,
etc.
Security of State: Under Security of Pakistan Act, 1952 speeches
can be banned which are likely to disturb public peace and
security of State.
Friendly relations with foreign states: Propaganda for a foreign

state at war with a friendly state may fall within this exception.
Public Order: The words promoting enmity b/w classes may be

punished under sec 153-A of PPC Similarly, utterances
deliberately and maliciously intended to outrage the religious
feelings of any class by insulting its religion, is punishable under
sec 295-A of PPC
An order u/sec 144 of Cr.P.C. can be validly made to prohibit

speeches likely to disturb the peace and public order.
Obscenity: Conception of decency and morality have differed not only in
different societies but also in the same society at different times.
Therefore the questions relating to such matters should be approached in
the light of existing and generally accepted notions.
The test: whether a publication has a tendency to deprave and corrupt
those who may happen to read and whose minds are open to immoral
practices. (R. v. Hicklin (1868) LR 3 QB 360.
Thanda Gosht by Saadat Hassan Manto: Obscenity Test
Contempt of Court: Contempt of Courts Act (XII of 1926). Also see art. 204
Incitement of an Offence: abetment of offence punishable under chapter

iv of PPC
Sec. 505 of PPC. Statement conducive to public mischief
Public Safety and Maintenance Order Act

Defamation: Omission of the word ‘defamation’ from art. 19 and its
substitution by words ‘commission of’ (by 4th amendment, 1975) has
enlarged the freedom of press but it does not provide a license to the
Press to publish such material which is prejudicial to the interest of any
person or may cause harm or damage to reputation, honour, and prestige
of a person….Press must take due care and caution before publishing any
material, verify its correctness from concerned quarters and keep
themselves within the bounds and ambit of provisions of art.19.
(PLD 2002 SC 515 C)
As a general rule, defamatory utterances fall not within the constitutionally

protected speech and writing. Freedom of speech and press does not
establish an exemption from the common law liability for libel and slander.
(1947 Lah 383)
Law of libel and slander (sec. 499 and 500 of PPC) are protected under art.
19
Art. 19-A Right to information
Freedom of speech and expression of opinion is

the hallmark of democracy and responsible
governance. Government could be held
responsible only through the informed opinion.
If people have the right to information of public
importance and governmental affairs only then
they could have informed opinion and hold the
government responsible effectively.
Art. 20 Freedom to profess religion
and to manage religious institutions
This article provides safeguard:
 to freedom of man to profess, practice and propagate any

religion and
 to establish, maintain, and manage religious institutions in

accordance with the religious belief of the denomination or
sect concerned.
But this right is subject to law, public order and morality. So long as
religious beliefs are held, professed, and practiced in private, no question
of public order can arise but when they are practiced and propagated in
public, by speeches, processions and placards, are accompanied by
denunciation of other religions, they are bound to clash with the rights of
others and thus lead to breaches of peace. It is for these considerations
that practice and propagation of religion is made subject to law.
Ahmadies/Qadianis are allowed to practice their faith and enjoy
freedom under art. 20 like any other religious minorities….however
they are not allowed to impurify Muslim faith and hijack Islam by
passing off as Muslims by use of Shaair Islam or Kalima Tayyaba
which are fundamentals of Islam. (NLR 1991 SD 763.)
Freedom to practice and propagate religion is subject to regulation

for the protection of the society. Power to regulate is to be
exercised in a way that it does not infringe the protected freedom.
State while acting through its local authority can, therefore, by
general and non-discriminatory legislative order regulating the
times, places and the manner of procession while keeping in view
the required safeguards for peace and good order while also taking
care that constitutional guarantees are not invaded, regulate the
practice of religion. (PLD 1983 SC 172, 1999 CLC 855)
Petitioner contended that provincial government be
directed to impose ban qua the book ‘God’s Special
Agents’ and that the respondent be restrained from
preaching the program of Christianity in Pakistan.
Court held, every citizen had the right to profess,
practice and propagate his religion….petitioner failed
to point out as to how the action of respondent
offend against any particular law, public order or
morality so as to exclude the protection of art 20…
Benevolence and tolerance is the hallmark of Islam
and provisions of articles 20, 36 and 227(3) of the
Constitution are the reflection thereof.
(PLD 2005 Lah 354).
Fundamental Rights
Article 21---28
Art 21. Safeguards against taxation for purposes of
any other particular religion
This safeguard is only against a special tax i.e. tax

levied for the promotion and propagation of a
particular religion. A person cannot be compelled to
pay tax the proceeds of which are to be spent on
the propagation of a religion other than his own. A
person who belongs to the same religion for the
propagation of which the proceeds of the tax are
to be spent can, therefore, be taxed.
Art 22. Safeguard as to educational institution
in respect of religion
Under art 22 every religious community has a constitutional right
to provide for its members religious instructions in its religious
institutions, provided that:
the institution is wholly maintained by such community; and
no pupil belonging to a different religion/community attending
such an institution is required to receive religious instructions or
take part in any religious ceremony or attend any religious
worship relating to a religion other than his own.
If for example, an institution is wholly maintained by Muslim

Community, it may provide religious education in Islam for its
own Muslim pupils, but Christians or Hindus who attend the
institution cannot be required to receive such education. The
institution may, however, make provisions for education of
Christian and Hindus pupils in their won religion.
Safeguard as to educational
institution in respect of religion
If an educational institution received aid from
public revenues, it cannot refuse admission to a
student on the ground of his race, religion, caste
or place of birth.
However, public authorities are not prevented

from taking provisions for the advancement of any
socially or educationally backward class of
citizens.
State aided Educational institutions
and State owned Institutions
It was contended that provisions of art (22) (3)(b) apply to
educational institutions receiving aid from the public
revenues and do not apply to private institutions receiving
no aid from the public revenue nor to the Government
institutions which are owned, run and managed by the
government. Government institutions are by no means
aided by Government; government does not aid itself. The
prospectus of the college to which petitioner seek
admission itself says ‘Prospectus of Government Medical
Colleges in Punjab’. Therefore, the apron the article 22 (3)
(b) under which the respondents seek to hide is not
available to them.
(Mussarat Uzma Usmani v. Government of Punjab PLD
1987 Lah 178)
No distinction b/s state aided and
state owned institutions
The words ‘educational institutions’ employed in art 22 (3) (b) are
plain, free from ambiguity and have been used to convey their
ordinary sense and according to common meaning in English
Language, without recognizing the distinction between ‘State
owned’ and ‘State aided’ institutions. It is well settled rule of
construction of statutes and of Constitutional instruments too, that
unless the words in an enactment are applied to a particular
science, they are to be interpreted as understood in common
language and in their popular sense…..Likewise the expression
‘receiving aid from the public revenue’, figuring in art 22(3) (b), is
not alive to the distinction between the educational institution
wholly run by the State and private institutions receiving aid from
the State….the words ‘receiving aid from the public revenue’ have
been used in comprehensive sense and cover all those institutions
which are maintained and run out of the finances doled out from
the public revenue, irrespective of their ownership.
(Naila Begum v. Government of Punjab PLD 1987 Lah 336)
Word ‘only’ occurring in the art 22
Word ‘only’ in the article cannot be ignored and
plays an important role…. Discrimination to fall
within the mischief of art 22 (3) (b), should be on the
ground of race, caste, religion of place of birth alone.
In matter of admission to educational institutions,
grounds, other than those stated in art 22 cannot be
taken into consideration and there is no deprivation
of fundamental rights, if admission is denied for the
reasons extraneous to art 22 or the ground of race,
caste, religion or place of birth, coupled with some
other grounds. (PLD 1987 Lah 336)
Art 22 (3) has to be interpreted without the
limitation inherent in art 25 (2).
It was held in construing the Constitution, or any other statutory
instrument, Court has to take not only particular part by itself, but look
to the whole of it, giving effect to all parts and take efforts to reconcile
inconsistency therein, if any. As a rule two provisions must be read
together in a manner which harmonizes them and gives effect to both
the provisions. A comparison of the language of art 22(3)(b) with that
of 25(2) reveals that the later protects all citizen against discrimination
on the ground of sex while the former gives protects all citizens against
a particular species of wrong namely, denial of admission into certain
types of educational institutions on the ground of race, caste, religion
and place of birth…..word ‘sex’ has been deliberately omitted from art
22(3)(b), there is no reason to read therein the word which the
framers of the constitution did not choose to incorporate…..Therefore
the art 22(3)(b) has to be interpreted without the limitation inherent in
art 25(2).
Court further held that the government of Punjab
could discriminate in admissions to medical school with
respect to sex when coupled with other admission
considerations. It rejected the argument that such
discrimination was prohibited by Article 25(2) of the
Pakistan Constitution, which protects all citizens from
discrimination on the ground of sex. It found that
Article 25(2) was a general provision, which must give
way before the special provision of Article 22(3)(b) of
the Constitution, which prohibits restrictions on
admission to educational institutions with respect only
to race, religion, caste, or place of birth.
(PLD 1987 Lah 336)
Taking steps for backwards/discrimination
Because of uneven economic development and lack of appropriate
educational facilities in certain parts of country, residents of those areas
came to be so handicapped that they were unable to compete with their
more fortunate counterparts in the developed areas on the basis of
straight and open competition. Relatively poorer performances of such
candidates in examination did not reflect an inherent lack of intelligence
or capabilities, but reflected only absence of facilities available to them,
which could harass their talents. To attain objective of genuine equality of
opportunities rather than mere nominal equality in accordance with the
true spirit of Islam, Constitution makers stipulated enabling provisions to
undertake affirmative action for benefit of under-privileged people. While
art 22(3) of the Constitution has forbidden discrimination in admission to
State-aided educational institutions on ground of race, caste, religion or
place of birth, clause (4) of the said article has enabled public authority to
make provisions for advancement of any socially or educationally
backward class of citizen. (2001 SCMR 1161, 2003 PLC (C.S.) 304 (c))
Art 23. Provision as to property
Property: Property, as a legal concept, is the sum of bundle of
rights over thing as well as the thing itself. But the word
property is of very wide import and including tangible and
intangible property. It includes not only real and personal
property but also incorporeal rights such as patents, copy rights,
lease, etc and everything of exchangeable value which a person
may have. A decree of court is, therefore, a property. (AIR 1951
Hyd 1) But a piece of property which is illegal to hold is not
property under this article. (PLD 1958 Lah 706)
This article while guaranteeing the right of property does not

guarantee that the concept of property shall ever remain the
same. What is today regarded as legitimate object of property
may cease to be so regarded tomorrow.
(AIR 1958 Nag 58)
Restriction must be reasonable
Restrictions on legislature’s powers and actions
taken thereunder are laid down in the
constitution itself. Right to acquire, hold and
dispose of property can be regulated only through
reasonable restrictions imposed by law in the
public interest. Both validity of law and action
take thereunder become justiciable from
standpoint of reasonableness as well as public
interest. If restriction to acquire, hold and dispose
of property imposed by law is found reasonable.
Court will uphold the same. (2003 CLD 1797 (q))
Rent Restriction Ordinance, 1959
Parties during pendency of constitutional petition before
HC effected a compromise whereby tenants were to vacate
premises and landlord after reconstruction was required to
hand over possession of shop to tenants within specified
period of time. Landlord after reconstruction of shop did
not deliver possession to tenants but rented out the said
shop to a stranger. Tenant’s application for delivery of
possession was accepted by Rent Controller. Appellate
forum and HC maintained order of Rent Controller for
delivery of possession to tenant. Landlord’s assertion that
that provisions of section 13 (5-B), Rent Restriction
Ordinance, 1959 being inconsistent with the rights
conferred by art. 23 of the Constitution were not raised
before the Rent Controller, the appellate forum and the HC.
Even otherwise the provisions of sec 13 (5-B) did not
appear to be violative of the Constitutional provisions.
Record indicated that rent deed in favour of third person
was executed by landlord on specified date which would
show that even before the completion of reconstruction
landlord had decided not to deliver possession of shop to
tenant in terms of compromise and under orders of HC.
Landlord had undertaken to restore possession of shop to
tenant after reconstruction; therefore, he could not be
allowed to resile from terms of compromise on basis
whereof he had obtained possession of premises in question,
from tenants. Orders passed by HC, also by appellate forum,
being just and fair. Leave to appeal refused.
(1997 SCMR 517)

Rent Restriction laws and laws governing the
relationship of landlord and tenant in urban areas
are infringements of the provisions of this article
being the restriction on the right to hold property.
But the restriction being reasonable and in public
interest do not so offend against this provision as
to make the law ultra vires and void.
(AIR 1952 All 703 (FB))
Freezing Bank account
Bank accounts of a trust were frozen at the directions of State Bank of Pakistan on
alleged complicity of trust in terrorist activities. No action against petitioner or his
co-trustee had been taken under the Anti-Terrorism Act, 1997. In the presence of
such special law dealing with suppression of terrorism and conferring power to
freeze accounts reasonably suspected of being used for terrorist activities, resort to
general provisions to issue any direction to banking company in public interest would
be entirely unwarranted. When resort to general law would deprive affected party of
right to seek review or appeal to High Court, then such action would be treated as
mala fide in law……No material of alleged suspicion of financing terrorist activities
had been conveyed nor petitioner had been afforded an opportunity to confront the
same. Such directions under sec 41 of Banking Companies Ordinance, 1962 could not
withstand test of reasonableness contemplated by art 23 and could not be sustained
on touchstone of art 24 as no compensation for deprivation of use of property had
been offered to the trust…. Such direction could not be upheld on the yardstick of art
23 as right to use or dispose of property has not been subjected to reasonable
restriction imposed by law in the public interest. Impugned order has been issued
beyond purview of lawful powers of State Bank of Pakistan.
(PLD 1999 SC 1026, 2002 CLD 102)
Right is subject to law, not
uncontrolled right
Development authority refused mutation of plot to
petitioner on the ground that it was allotted for residential
purpose but the petitioner used it for commercial purposes
(Marriage Hall).
Petitioner contended that refusal to mutate amounts to
violation of art 23. Court held, Right to own or dispose of
property under art 23 is subject to law and not an
uncontrolled or unregulated right. Petitioner committed
breach of terms of lease by putting residential plot to
commercial purposes and the Authority as a lessor was at
liberty to take action against the said breach.
(PLD 1975 Kar 313 ref. 1989 MLD 4422)
Art 24. Protection of property rights
Person: person includes citizens and foreigners
whether natural or artificial i.e. corporations
(AIR 1961 SC 954)
Before the State can deprive a person of his property,
it has first to arm itself with a law. Even where the law
authorizes the Executive to deprive a person of his
property under certain circumstances Executive is
bound to follow strictly the procedure which is laid
down by the law for acquiring of the property. Where
a person is deprived of his property under the
authority of law and according to provisions of law, he
has no ground for complaint under the Constitution.
Acquisition of land: Private lands are acquired under the provisions of Land
Acquisition Act, 1894 for public purpose without the consent of the owner
and the paramount consideration behind the scheme appears to be the
welfare of the people at large. Object behind the legislative dispensation is
not to deprive the land owners of their constitutional rights to acquire, hold
and dispose of property.
Public purpose: The question whether property is being acquired for public
purpose is a justiciable issue and it is for the court to decide whether the
acquisition is for a purpose which may properly held to be a public purpose or
not. Because if the real purpose of the acquisition be not a public purpose, the
acquisition will be invalid.
(PLD 1958 Dacca 280)
There can be no exhaustive definition of ‘public purpose’ and the answer to
question whether a purpose is public or not, will defend on the object to be
achieved by the acquisition and the place that object occupies in the current
policy of ideology of State. If the acquisition is in the general interest of the
community and not intended to promote private interests of a particular
individual or set of individuals, it will be treated to be for a public purpose.
(PLD 1959 Dacca 115, AIR 1952 SC 252)

Public purpose has precedence over
individual rights
Petitioners who were occupants of shops and houses adjacent to
area sought to be acquired for construction of flyover, had
challenged the construction and contended that they being
lessees of Cantonment Board for ninety years through
agreement, were entitled to easement rights and said rights could
not be interfered with through construction of flyover which
would be violative of the constitutional provisions. Authority had
not only examined project from economic angle but also had
taken into consideration its environmental aspect…. If a project or
scheme was actuated by laudable consideration of public welfare,
if the same led to general convenience of public, if it engendered
commercial activities to the benefit of public at large and if its
environmental impact was considered to be positive then such
project must have precedence over individual rights.
(PLD 1969 SC 223, 1992 MLD 2259, etc)

Refusal to issue duplicate saving certificates
Investor who was predecessor-in-interest of the petitioner, purchases Special
Saving Certificates (bearer) but same were robbed and the investor
immediately informed the concerned National Saving Authorities about the
robbery and a criminal case was registered in that respect.
Investor requested the authorities that the robbed certificates be cancelled
and fresh/duplicate certificates be issued to her. But her request was turned
down in view of Rule 14 (3) of Special Saving Certificate Rules, 1990 which
forbidden the issuance of duplicate certificates.
SSCR, 1990 had not been framed under any statutory authority and could be
treated as mere administrative instructions. Though investor could not be
entitled to duplicate certificates she was well within her right to claim the
return of investment made by her with profits, particularly when the robbed
certificates had not been encashed by anyone. Authorities had not sustained
any pecuniary loss as they were holding investment made by investor which
was in the nature of trust with them. Authorities were bound to refund the
amount of investment with profits earned thereon….Successor-in-interest
could not be deprived of their property in view of guarantees enshrined in art
23 and 24 of the Constitution. (2003 CLC 362 (a))
Payment of duty which is exempted
Petitioners paid excise duty without the knowledge that the
same has been exempted under a notification; later on they
claimed the refund of the same. Plea of refund was rejected
on the ground of limitation (time bar). Withholding of
citizen’s money by public functionary on the plea of
limitation or any other technical plea if it was not legally
payable by him was depreciated. Supreme Court remanded
the case to Collector of Customs with directions to examine,
as to whether the importers (petitioners) had fulfilled the
conditions laid down in the notification in order to avail
exemption. If they had fulfilled the conditions, the denial of
refund of the amount involved would be violative of art 24
(1) of the Constitution. (PLD 1998 SC 64)
Exceptions
The rule governing acquisition or taking possession of property only for a
public purpose and on payment of compensation does not apply to:
(a) a law under which a person may be deprived of property with a

view to preventing danger to life, property or public health;
(e.g. sec 133 of Cr.P.C. which provides for removal of public nuisance) or
(b) any law permitting the taking over of property which has been
acquired, or come into possession, of any person by unfair means or in
contravention of law; or ( e.g. Section 550 of Cr.P.C.)
550. Powers to Police to seize property suspected to be stolen. Any police-
officer may seize any property which may be alleged or suspected to have
been stolen, or which may be found under circumstances which create
suspicion of the commission of any offence. Such police-officer, if
subordinate to the officer in charge of a police-station, shall forthwith
report the seizure to that officer.
(Anti-Terrorism Act, 1997 Sec. 11. Power to forfeiture of materials used in
terrorism, 11-O. Seizure and detention)
Exceptions
(c) any law relating to acquisition, administration or disposal of
property which is deemed to be enemy or evacuee property; or
[e.g. The Enemy Property (Continuance of Emergency Provisions)
Ordinance, 1977] relating to the control of trading with enemy and control
of enemy firms, and the administration of the property belonging to them.
Example of law for Evacuee Property: Evacuee Trust Properties
(Management and Disposal) Act, 1975 (Act XIII of 175)
The Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (XIV
of 1975)
(d) to any law where the property of another person may be taken
over for the management for his benefit ( e.g. Guardian and Wards Act,
1890); or
(e) any law providing for acquisition of property for certain purposes
(f) any law made in pursuance of art 253 (e.g. Land Reforms Act, 1977)
Compensation when claimable?
Laws falling under sub-clause (e) of article 24(3) will
probably be held as species of laws falling under
clause (2) because the object of the laws mentioned
in sub-clause (e) (i, ii, iii) are public purposes but
clause (2) not being applicable to cases in clause (3), it
seems that compensation will not be claimable for
such acquisition as of right.
When compensation is payable under clause (2), the
adequacy or inadequacy of it cannot be questioned in
any court though the question whether the provisions
of art (24) (2) have been complied with or properly
interpreted fall within the purview of judicial review.
Compensation must be fair
Though the word ‘compensation’ is not preceded by the
adjective ‘just’ like the US provision, it can only mean full
and fair money equivalent of the property.
(PLD 1965 Lah 327, PLD 1957 SC (Pak) 9))
Therefore, a law will be unconstitutional if it does not

provide for compensation in this sense, or its provisions
relating to acquisition are wholly piratical, confiscatory or
illusive. A law in such case will be invalid on the ground that
principle adopted by it for determining compensation is not
a principle of compensation at all.
(AIR 1952 SC 252, AIR 1957 All 297)
Art 25. Equality of citizens
Equality before law: According to Black’s Law Dictionary:
The status of condition of being treated fairly according to

regularly established norms of justice…..the notion that all
persons are subject to ordinary law of the land administered by
the ordinary law courts, that officials and others are not exempt
from the general duty of obedience to law and that discretionary
governmental powers must not be abused….
A number of distinct meanings are normally given to the

provision that there should be equality before law. One meaning
equality before law only connotes the equal subjection of all to a
common system of law…. another theory asserts that equality
before law is basically a procedural concept, pertaining to the
application and enforcement of laws and the operation of a legal
system.
Equal protection of law: Equal protection of law means that the
legislation that discriminates must have a rational basis for doing so. And
if the legislation affects the fundamental right (such as right to vote, etc)
or involves a suspect classification (such as race, sex, etc), it is
unconstitutional unless it withstand strict scrutiny. Black’s Law Dictionary
Equal protection does not require that all persons be dealt with
identically, but it does require that a distinction made have some
relevance to the purpose for which the classification is made. (Baxstrom
v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763 (1966).
No person can be put beyond the pale of law and no bill of outlawry can
be passed against him. In this sense protection of law of law means the
protection of law by which the citizens concerned are governed as
different classes of citizens may have different laws applicable to them.
They are entitled to protection of these laws which must not offend
against the first part of the article and make them unequal before law.
(A.K. Brohi)
A law that confers uncontrollable
powers on public officials
All laws imply classification, for when it applies to a set of
circumstances, it creates thereby a class, and equal protection of
law means that this classification should be reasonable. Where the
law confers wide and uncontrollable powers on an official so that
he is entitled arbitrarily to interfere with private rights
guaranteed by the Constitution and law it will be void on the
ground that it enables him to discriminate at his sweet will.
Sec 8 of the West Pakistan Maintenance of Public Order Ordinance,

1960 was held to be void for the said reason. (PLD 1965 Lah 642)
West Bengal Criminal Law Amendment (Special Courts) Act, 1949---

constituted Special Courts to try special kinds of offences and
empowered executive to direct particular cases to be tried by
Special Courts---was held to be inconsistent with equal protection
law. (AIR 1953 SC 404)
Special Courts under ATA, 1997: Special category of
offences involving elements of terrorism and sectarian
violence where no choice is left to the executive to
send a case of schedule offences to any other court.
To treat terrorist acts differently than the ordinary
offences to be dealt with by a different forum is
reasonable classification which does not offend the
equality before law and equal protection of law……
constitution of special courts and special tribunal for
the purpose of speedy trial of heinous crimes cannot
be invalidate on the touchstone of art 4 and 25 of the
Constitution. (1998 MLD 1411)
Different situation, different treatment:
Reasonable classification; No violation
Prospectus of Bolan Medical College for the year 1989-90,
para 30. Candidate’s application for admission was rejected
for having got her entire education outside the province
while specified candidates having got their education
outside the province were given admission.
Court held that mere fact that specified candidates got

their education outside the province would not make
discrimination unless it was shown that the reasons
advanced by them were identical with that of aggrieved
candidate. In order to make discrimination it must be
shown that the parties were placed in the same situation
but they were treated differently, which factum was
lacking in the case. (1995 SCMR 334 (c))
Similar situation, different treatment: Not
Reasonable classification; violation
Three Flour mills owners (petitioners) were duly
included by the provincial govt to whom quota of
flour was to be issued. Nine other flour mills, of the
lists, were issued quota flour but the petitioners
were not which caused the petitioners loss of
millions of rupees. Court held, where numerous
other business concerns were involved in similar
business and production but petitioners were
prevented from carrying on their business while
other rival business concerns similarly circumscribed
were facilitate to go into production such conduct
was discriminatory on the part of Authorities and in
violation of art 25.
Reasonable classification
Shirin Munir v. Government of Punjab, (PLD 1990 Supreme Court
295) where female students applying to medical colleges in Punjab
were denied admission on the ground that seats reserved for
females were filled up. Instead, the male students, who were below
in merit list than the females, were given admission. The girls
petitioned the Lahore High Court on the basis of discrimination,
which decided in their favour. On appeal Supreme Court held that:
No discrimination on the basis of sex alone can be permitted except

on the ground of reasonable and intelligible classification….where
co-education is permitted….the fixation of the number on the
ground of sex will directly be opposed to the requirement of article
25(2) unless it is justified as a protective measure for women and
children under article 25(3). In other words the number of girl
students can be fixed as the minimum but not as the maximum
Arbitrarily reserving a specified job for men
only:
The case of Naseem Firdous (Naseem Firdous v.

Punjab Small Industries Corporation (PLD 1995
Lahore 584)) is another example where Lahore High
Court stroke down gender equality norm of article 25
in conjunction with article 27. The petitioner was
working in the Punjab Small Industries Corporation
since 1977 and reached to the post of Assistant
Director (Design). In 1983 she was prevented from
applying for the post of Director on the ground that
job was for ‘male only’ applicants. Court declared the
advertisement (requiring male applicants only), which
was alleged to be justified by article 27, to be
contradictory to article 25 and hence illegal.
Art 25-A. Right to education
In accordance with provisions of international

human rights law (e.g. art 26 of UDHR, art 13 of
ICESCR, etc) Islamic Republic of Pakistan inserted
this article ensuing free education as fundamental
right.
Art 26. No discrimination in respect
of access to public places
Art 25 envisages the general principle of equality before law
while art 26 and art 27 provide for the specific application of
that general principle of equality.
Public place: It is immaterial whether the public place
belongs to the government or a local authority or is being
managed by private individual.
Places of religious worship as are exclusively used by
religious communities for religious purposes only are not
public places as are accessible to all citizens through art 26.
Special provisions may be made for women and children e.g.
hours may be fixed for women during which men visitors are
not allowed or children are not allowed unless accompanied
by their parents.
Art 27. Safeguards against
discrimination in respect of services
Quota system: object of creating reserved seats for different
classes/segments in colleges and in employment is to give legal
protection to the people who are genuine residents of the area
in order to bring them at par with those of developed areas of
the country.
Object of the quota system is defied if the candidates are not

the bona fide/ permanent residents of the area but somehow
manipulate to obtain the domicile/local certificate from such
district and become eligible for reserved seats, affecting the
rights of genuine residents of the area. (PLD 2001 Quetta 72 (a))
Allocation of quota of posts to MPAs, MNAs and Ministers for
recruitment is offensive to the constitution. (1993 SCMR 1287)
Preserving quota by executive after
the expiry of protection period
Preserving quota system by executive orders, even
after the expiry of protection period available under
the Constitution, amounted to amending the
constitution through circulars, policy letters, etc
prescribing the quota in service of Pakistan are ultra
vires, illegal and against the injunctions of Islam.
(1997 CLC 1308)
Reserving posts for member of either sex in the

interest of service which cannot be performed by
member of other sex: for example Lady Health
Workers, female doctors, female teachers in women
educational institutions.
Art 28. Preservation of language, script and culture
Subject to art 251: Art 251 provides that national language

of Pakistan is Urdu and arrangement shall be made for its
being used as official language within fifteen years from the
commencing date. In the meanwhile English may be used
for official purposes. Provincial assembly may, by law,
prescribe measure for teaching, promotion and use of
provincial language, in addition to the national language.
Section of citizens? It can be questioned as to whether this

right can be excised by an individual as art 28 mentions
‘section of citizens’?
Similarity b/w art 28 of the Constitution of Pakistan and art
27 of ICCPR
Original Jurisdiction of Supreme Court of Pakistan:
184. (1) The Supreme Court shall, to the exclusion of every other court, have original jurisdiction in any
dispute between any two or more Governments.
Explanation.—In this clause, “Governments” means the Federal Government and the Provincial
Governments.
(2) In the exercise of the jurisdiction conferred on it by clause (1), the Supreme Court shall pronounce
declaratory judgements only.
(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a
question of public importance with reference to the enforcement of any of the Fundamental Rights
conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature
mentioned in the said Article.
The article does not say as to who shall have the right to move the Supreme Court (SC) nor does it say
by what proceedings the SC may be so moved or whether it is confined to the enforcement of
fundamental rights of an individual which are violated or extends to the enforcement of the rights of a
group or class of persons whose rights are violate.
Constitutional petition under art 184(3) can be maintained subject to establishing by the petitioner
that question of public importance with reference to the enforcement of fundamental rights has been
made…. Maintainability of the petition under the art is to be examined by the court not on the basis of
who filed the same but if the controversy involves a question of public importance with reference to
the enforcement of fundamental right, the petition will be sustainable. (PLD 2006 SC 394 (c))
Public interest litigation is not enforcing right of one individual against another as happens in case of
ordinary litigation, rather such litigation is intended to promote and vindicate interest involving
violation of Constitutional or legal rights of large number of people, who are poorer, ignorant or in
socially or economically disadvantageous position. (PLD 2002 Kar 359 (b))
Violation of Constitutional and fundamental rights in circumstances which raise serious questions
regarding the effectiveness of and availability of safeguards (for the fundamental rights) must be
regarded as matter of great public importance.
(PLD 2001 SC 549 (e))
Word dispute in art 184 is wide enough to include all the disputes, jurisdictional, administrative and
fiscal.
It was contended that Peoples Work Program concentrating mainly on Education, Health and
Sanitation, Water Supply and Rural Roads did not fall within the jurisdiction of the federal
government. Because, it was further contended that, under the Constitution Executive authority of
the Federal Government extends only to such matters as enumerated in the Federal Legislative List
and or the Concurrent Legislative List in respect whereof the Parliament was empowered to make
laws (art 97). It was further contended that none of the aforementioned components of the program
was included in either of the two lists contained in Fourth Schedule of the Constitution, therefore,
theses components fall within the ambit of Provincial Government and the launching of the program
by the Federal Government was ultra vires of the Constitution. (art 142 (c))
It was held that grievance agitated by the petitioner essentially raised a dispute of the nature
envisaged in art 184 of the Constitution i.e. dispute between the Federal Government on one hand
and the Provincial Governments on the other. Such a dispute is determinable by the Supreme Court of
Pakistan which has exclusive jurisdiction under art 184. (1989 CLC 1387)
The Supreme Court has exclusive jurisdiction in inter governmental disputes The provision is based on
the principle that all disputes, whether of law or fact, must be determined by the SC if the parties to
the disputes happen to be Federal Government and, or, Provincial Governments, it is in the highest
degree undesirable that the Federation and Provinces should be fighting out their battles in the
subordinate courts like common litigants. (PLD 1956 FC 72)
Dispute as to ownership of land between Pakistan Railways and Karachi Development Authority
Dispute between as to land ownership between Pakistan Railways and KDA could not be treated a
dispute between the Federal Government and Provincial Government because the KDA being a local
authority and separate from Provincial Government was not a Department of the Government.
Provisions of Art 184 could not be attracted. (PLD 1986 Kar 130)
As contained in clause (2) of art 184, in the exercise of this jurisdiction, the Court can pronounce only
declaratory judgments and not an order or decree that is executable under art 187. This shows that
such disputes are to be brought before the Court for its opinion and determination of rights and
liabilities. However, during the hearing executable orders such as order for production of documents,
attendances of witnesses, etc may be passed.
SC can exercise its powers to issue the writ only when element of ‘public importance’ is involved while
art 199(1)(c) has a wider scope as there is no such limitation.
Trappings of art 199 (1)(a) and (c) need not be read into art 184(3). Exercise of power of SC u/art
184(3) is not dependent only at the instance of the ‘aggrieved party’ in the context of adversary
proceeding. Traditional rule of locus standi can be dispensed with and procedure available in public
interest litigation can be made use of, if it is brought to the Court by the person acting bona
fide. Provisions of art 184(3) have provided abundant scope for the enforcement of the Fundamental
Rights of individual or group or class of persons in the event of their violation and it would be for the
SC to lay down contours generally in order to regulate the proceedings of group or class actions from
case to case.
The opening words ‘without prejudice’ in art 184(3) mean only not affecting, saving or excepting and
the expression ‘without prejudice to the provisions in art 199’ means no more than to save the
provisions of art 199 without, superimposing itself on the power of the Supreme Court to decide a
question of public importance relating to enforcement of Fundamental Rights. The aim of art 184(3) is
to leave the power of High Court intact. It is for the party which is affected to choose which of the two
forums it wishes to invoke, and if it be the SC then the power exercisable is subject to the limitation of
art 184(3) i.e. the element of public importance must be involved in the enforcement of Fundamental
Rights.
The impression that the opening of sub-clause 1(a) and (c) of art 199 be read into art 184 (3) appears
to be without substance as there are no words in art 184(3) to incorporate them except the words
“make an order of the nature in the said article”, which are specifically referable to the nature of order
in sub-clause (c) of clause 1 of art 199 giving such directions as may be appropriate for the
enforcement of any of the Fundamental Rights. Therefore, it will not control or regulate, in any way,
the exercise of power so as to make it exercisable only at the instance of the ‘aggrieved party’ in the
context of adversary proceedings.
Where grant of relief prayed for did not require enforcement of any of Fundamental Right mentioned
in chapter 1 part of II, the petition was not maintainable under article 184(3) (PLD 1994 SC 621, NLR
1994 SCJ 612). Therefore, violation of art 4 and 5 which do not fall in chapter 1 of part II containing
Fundamental Rights would not attract the exercise of jurisdiction by SC u/art 184(3). (1995 SCMR 202)
When the condition, that a fundamental right is being enforced, is justified then the only limit on the
power of the SC to pass order is that the order should be ‘appropriate’. (1993 SCMR 1781)
So the Court may decline relief if its grant, instead of advancing the cause of justice, would perpetuate
injustice or where the Court feels that it would not be just and proper. (PLD 1993 SC 473 –PLJ 1993 SC
438)
Ismail Qureshi and Others V. M Owais Qasim Secretary General of Islamic-e-Jamit Talaba 1993 SCMR
1781)
Court held that those who “indulge in politics” in the educational institutions being a very small
minority violate several fundamental rights of a vast majority of the students, their parents and
guardians, besides of those who are otherwise directly or indirectly linked or connected therewith.
The court even directed that at the time of admission to an educational institution, the student and
his parents/guardian shall give an undertaking that the student shall not “indulge in politics”; failing
which, he shall not be allowed admission. The court noticed that the dignity of the teachers, the
institution and the majority of students community has been severely adversely affected, besides
infringement of several other fundamental rights including those relating to movement, expression,
speech, freedom of assembly and above all the dignity of the teachers and a large majority of the
students gets violated in one or the other set of circumstances.
Enforcement of Fundamental Rights through Order or declaratory judgments?
If a question of public importance relating to the enforcement of Fundamental Rights is involved the
SC may make an order of nature mentioned in art 199. The restriction of passing declaratory
judgments is confined to clause (1) of art 184.
Appellate Jurisdiction of Supreme Court:

Art. 185. (1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine
appeals from judgments, decrees, final orders or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgmens, decree, final order or sentence of a
High Court—
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced
him to death or to transportation for life or imprisonment for life ; or, on revision, has enhanced a
sentence to a sentence as aforesaid ; or
(b) if the High Court has withdrawn for trial before itself any case from any court subordinate to it and
has in such trial convicted the accused person and sentenced him as aforesaid ; or
(c) if the High Court has imposed any punishment on any person for contempt of the High Court; or
(d) if the amount or value of the subject-matter of the dispute in the court of first instance was, and
also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified
in that behalf by Act of 1[Majlis-e-Shoora (Parliament)] and the judgment, decree or final order
appealed from has varied or set aside the judgment, decree or final order of the court immediately
below ; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question
respecting property of the like amount or value and the judgment, decree or final order appealed from
has varied or set aside the judgment, decree or final order of the court immediately below; or
(f) if the High Court certifies that the case involves a sub-stantial question of law as to the
interpretation of the Constitution.
(3) An appeal to the Supreme Court from a judgment decree, order or sentence of a High Court in a
case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal.
Clause 2—sub-clauses (a), (b) and (c) of article 185 provides for appeal to Supreme Court in criminal
cases while sub-clauses (d), (e) and (f) Clause 2 provides for appeal in civil cases. Clause 3 provides for
appeal by leave.
Appellate Jurisdiction of Supreme Court
of Pakistan
(i) Appeal in Criminal Cases
Appeal to the Supreme Court lies against the Judgment, final order or sentence of High Court in
following Criminal Cases:
Sub-clause (a). If the High Court reversed the final order of acquittal and sentenced the accused to
death or transportation for life or imprisonment for life or in the exercise of revisional jurisdiction has
sentenced him as aforesaid.
Sub-clause (b). If the High Court withdrawing a case from subordinate court has tried the accused and
sentenced him as said in clause (a).
Sub-clause (c). If High Court has imposed any punishment (imprisonment or fine) on any person
for contempt of the High Court.
Art 185 does not enable a person to file an appeal as of right from the judgment of the
HC confirming a death sentence by a Session Judge. It is competent only where the HC has set aside
acquittal and passed sentence of death or imprisonment for life.(1997 SCMR 1)
But where the sentence of death is submitted to High Court for confirmation and the High Court
exercises no power other than provided by section 376 of Cr.P.C and does not confirm a sentence, but
upon the same conviction or an altered conviction passes any other sentence warranted by law, and
that sentence is transportation for life, an appeal may lie to Supreme Court as of right. (1971 SCMR
403, PLD 1963 SC 226)
Sentence of Transportation for life is omitted by Law Reforms Ordinance, XII of 1972, S. 2.
Diminished liability on account of grave and sudden provocation
(Abdul Haque v. The State and another1996 SCMR 1566.)
The Pakistan Penal Code, 1860 (PPC), in its original form, contained provisions whereby causing the
death of a person due to grave and sudden provocation was defined as culpable homicide not
amounting to murder. The relevant provision, contained in Exception 1 to Section 300 PPC, stated:
Culpable homicide is not murder if the offender, while deprived of the power of self-control by grave
and sudden provocation, causes the death of the person who gave the provocation or causes the
death of any other person by mistake or accident.
Accused killed the deceased in the court room when the latter threatened to sexually assault all the
women of the accused’s tribe on his release. Accused convicted and sentenced to death. He preferred
appeal against the death sentence.
Majority of the High Court judges were of the view that section 300 of PPC (amended) does not have
any exception therefore, the plea of diminished liability on account of grave and sudden provocation
was not available to the accused.
A three member bench of the Supreme Court felt that the plea of diminished responsibility under
grave and sudden provocation had been well-recognized in the sub-continent for more than a
hundred years and there was good reason that a person who committed culpable homicide out of
compulsion, ethical or otherwise, not brought about by himself, could not be placed on the same
footing as a cold-blooded murderer or hired assassin. Serious question for consideration arose that
whether the Criminal Law (Second Amendment) Ordinance, 1990 was intended to do away with the
preferential treatment which has always been accorded to a person who took another’s life under
circumstance where he had lost self-control.
Such question being of great fundamental importance not only for the reason that it would effect a
large number of pending cases, but also because it had bearing on the attitude and reflexes of the
people under the most testing circumstances when their natural reactions compel them to act in a
certain manner. Question needed to be considered by a larger Bench and was directed to be placed
before Chief Justice for necessary orders.Five members bench of SC held that a provocation plea is not
available if murder is liable to qisas. However, it is available as a mitigating circumstance for a murder
considered under section 302 (b) of PPC (Tazir).
Appeal against acquittal

In appeal against acquittal Supreme Court would not on principle ordinarily interfere and instead
would give weight and considerations to the findings of acquittal. This approach is based on the fact
that acquittal carries with it two well established presumptions; one initial, that, till found guilty the
accused is innocent; and two that after the trial a court below the assumption of innocence is
confirmed.
However, the assumption will not carry the second assumption and will also lose the first one if the
points having conclusive effect on the end result of the court below; (a) disregarded the material
evidence; (b) misread such evidence; (c) received such evidence illegally. If the conclusion reached by
the court below was such that no reasonable person would have conceivably reach the same and was
impossible then the SC would interfere on overwhelming proof resulting in conclusive and irresistible
conclusion and that too with a view only to avoid the grave miscarriage of justice and for no other
purpose.
(PLD 1985 SC 11)
(ii) Appeal in Civil Cases:
Sub-clause (d). If the amount or value of the subject matter both in the court of first instance and in
the appeal to SC is not less Rs. 50,000 or such other sum as may be specified by an Act of Parliament
and the judgment, final order or decree appealed from has varied, or set aside the judgment, order or
the decree of the court immediately below it.
Sub-clause (e). If the judgment, final order or decree involves, directly or indirectly, some claim or
question respecting the property of the like amount (Rs. 50,000) and the judgment, final order or
decree appealed from has varied or set aside the judgment, final order or decree of the court
immediately below it.
Sub-clause (f). If the HC certifies that the case involves a substantial question of law as to the
interpretation of constitution. (Does not specifically require that the value of the property must be Rs.
50,000 or more).
(iii) Appeal by leave: Clause (3)
Clause 3 of art 185 says that an appeal to Supreme Court from the judgment, decree, order or
sentence of High Court in a case to which clause (2) does not apply shall lie only if the SC grants leave
to appeal.
Clause (3) of the Art 185 must be read with art clause (3) of 212 of the Constitution which provides for
appeal by special leave from Administrative Courts and Tribunals if the Supreme Court is satisfied that
the case involves a substantial question of law of public importance.
Decision of the Cabinet whether deemed to be the decision of Government?

Suppression of Cooperative Society by Martial Law Administrator with the option with to Govt revive
the same at any time
Govt decided to revive the Society from 1st Aug, 1986 but no requisite steps were taken to revive the
society. High Court directed the govt to revive the Society within specified period.
In petition for leave to appeal the main ground was that no notification or order was issued under the
signature of the Govt functionary on the basis of the decision of the Cabinet.
Question for determination was that whether the decision of the Cabinet was synonymous with the
decision of Govt keeping view the provisions of art 129 and 139 of the Constitution.
Question raised involved the interpretation of the Constitution. Leave to appeal was granted to
examine, inter alia, whether the decision of the cabinet could be treated as decision of the govt within
the meaning of para 3 of Martial Law Order NO. 856 whereby Model Town Cooperative Society was
dissolved. (1997 SCMR 186)
Can a Civil Court strike down a law?
Leave to appeal was granted to consider whether in view of art 2-A, 204-B, 227 and 268 and section 3
and 4 of the Enforcement of Sharia Act, 1991, civil courts have the power to examine, review,
interpret and strike down, if necessary, any provision of the Muslim Family Laws Ordinance, 1961,
which was allegedly contrary to the Injunctions of Islam as laid down by Holy Quran and Sunnah and
also to consider contrary contention that section 4 of MFLO was the result of Ijtehad and
interpretation of principles of Islam and therefore could not be termed as un-Islamic. (PLD 1993 SC
595, 1993 SCMR 1718)
Discovery of New Evidence
Supreme Court, as a rule, does not undertake an enquiry as a court of first instance, nor permit
additional evidence to be placed in appeal where there was sufficient opportunity for the appellant to
place all the relevant material before the HC. Where the evidence having material bearing on the
merits of the case is subsequently discovered there are three courses open to the party to the
litigation i.e. he may:
(i) apply for admission of the fresh material as additional evidence before the judgment is
pronounced;
(ii) apply for the review of the judgment after it is pronounced; and
(iii) appeal from that judgment.
The appellant resorting to third option must disclose as to why he could not have applied for the
review of the judgment on the ground of the discovery of new evidence. In an appeal it is now
well settled that additional evidence should not be admitted in order merely to enable one of the
parties to litigation to fill in gaps in the evidence. (PLD 1969 SC 60)
Advisory Jurisdiction of Supreme Court of Pakistan and

Review of Judgments or Orders by it:
Article 186. (1) If, at any time, the President considers that it is desirable to obtain the opinion of the
Supreme Court on any question of law which he considers of public importance, he may refer the
question to the Supreme Court for consideration.
(2) The Supreme Court shall consider a question so referred and report its opinion on the question to the
President.
Analysis of Article 186
Whether question is of public importance is for the President to determine and a reference to the SC is
in his discretion. But once a question is referred, the Court is under obligation to consider it and give a
reply.
SC must not go beyond the reference: When a reference is seeking interpretation of particulars
provisions of a bill a party cannot say that doubts also arise about other provisions of the bill. SC must
not go beyond the reference to discuss other provisions. (AIR 1968 SC 956)
The question must be precise and specific and the court may refuse to answer a question which is too
general. For example, the Governor General’s Reference to Federal Court in 1955 was comprised of four
questions. One among them was “What are the powers and responsibilities of Governor General in
respect of the Government of the country before the new Constitutional Convention passes the necessary
legislation?” to which Federal Court replied that the question is too general and need not be
answered. (PLD 1955 FC 435)
Is opinion of Supreme Court of binding nature?

The opinion of the court is in nature of advice, not binding on the referring authority, and is not judicial
decision within the meaning of art 189 of the Constitution. It does not prevent the court from giving a
contrary decision in a subsequent case coming to it in the normal course.
Opinion of the Supreme Court is just opinion with explanation on the question of law and is not of
binding nature and it is up to the President or the Federal Government to act upon it or not. (Al-Jehad
Trust Case, PLD 1997 SC 84 (b))
Opinion of the court on the reference by the President is not a judicial decision between the parties but
the Court undertakes an extensive judicial exercise during which the arguments advanced by the
Advocates appearing on behalf of the parties summoned by the court are evaluated and appreciated
and then opinion is formed therefore, it had a binding effect.
(PLD 2005 SC 873 (b))
From the language of articles 189 and 190, it is concluded that opinion expressed by SC in reference
under art 186 is required to be esteemed utmost by all organs of the State, therefore, it would be unfair
to say that opinion expressed by SC on the Presidential reference u/art 186 has no binding effect. (PSC
2006 (SC Pak) 9 (ccc))
President to act on the advice of Prime Minister
Advisory jurisdiction of the Supreme Court can be invoked by the President on the advice of the Prime
Minister…….Article 90 of our 1973 Constitution envisages that the Executive Authority of the Federation
shall vest in the President and shall be exercised by him either directly or through officers subordinate to
him in accordance with the Constitution. Article 99 provides that all Executive actions of the Federal
Government shall be expressed to be-taken in the name of the President. In exercise of powers
conferred by both these Articles, the Federal Government has made Rules of Business of 1973;
under Schedule V-B, Rule 15-A(1) list is made of cases requiring orders of President on the advice of the
Prime Minister, Entry No. 54 specifically mentions Reference to the Supreme Court on any question of
law to be filed under Article 186, which is to be done on the advice of the Prime Minister. (Al-Jehad
Trust Case, PLD 1997 SC 84 (b))
Presence of the parties
It is also objected to by the learned counsel, that reference is not competent because it is not inter
se the parties. This Court in exercise of advisory jurisdiction under Article 186 of the Constitution, has to
express its opinion on constitutionality of the Hisba Bill, therefore, presence of the parties is not called
for. Advisory jurisdiction of this Court is definitely different and distinct from the jurisdiction under
Articles 184 and 185 of the Constitution.
Scope of the art is wide
We feel no hesitation in holding that Constitution makers by using the expression ‘any question of law’
in Article 186 of the Constitution had widened its scope and had also covered disputes which are likely to
arise. We may observe that if such construction is not placed on the expression ‘any question of law’
there is apprehension that the provision of advisory jurisdiction will become redundant.
Other provisions of the bill
It is equally important to note that once some of the Sections of a Bill have been declared
unconstitutional, it would not mean that leftover Sections of the Bill have been declared in accordance
with the Constitution. Their Constitutionality remains open to be questioned, which can be upheld or
struck down as or when challenged before a competent forum.
Can President refer a question about a Provincial law?
Objection that President is only competent to refer under art 186 a question of law which relates to
Federal Law and not with respect to Provincial law is not sustainable in the view of comprehensive and
broad language employed in art 186.
(2006 PSC (SC Pak) 9 (kkk))
Review of Judgments or Orders by the Supreme Court
Art. 188. The Supreme Court shall have power, subject to the provisions of any Act of 1[Majlis-e-Shoora
(Parliament)] and of any rules made by the Supreme Court, to review any judgment pronounced or any
order made by
Under art 188 SC has the power to review any judgment pronounced or order made by it. The power of
review is to be exercised subject to an Act of Parliament and of any rules made by the SC itself. Order
XXVI of the SC Rules, 1980 provides for review.
Order XXVI, Rule 1 of Supreme Court Rules, 1980 (amended in 2008) provides that Subject to the law
and the practice of the Court, the Court may review its judgment or order in a Civil proceeding on
grounds similar to those mentioned in Order XLVII, rule I of the Code and in a criminal proceeding on the
ground of an error apparent on the face of the record.
Grounds for review
Order XLVII, rule I of the Civil Procedure Code provides grounds for the review as under:
(i) discovery of new and important matter or evidence which, after the due diligence, was not within the
knowledge of the party seeking review or could not be produced by it at the time when the decree was
passed or order made, or
(ii) on account of some mistake or error apparent on the face of the record, or
(iii) for any other sufficient reason.
Who may apply for review: Application for review can only be made by a party aggrieved as required in
order XLVII of the Civil Procedure Code.
When Review may not be granted?
 If Court has taken a conscious and deliberate decision on a point of law or fact while disposing of
a petition or an appeal, review of such judgment or order cannot be obtained on the ground
that court took an erroneous view or that another view on reconsideration is possible.
 Review also cannot be allowed on the ground of discovery of some new material, if such
material was available at the time of hearing of appeal or petition but not produced.
 Ground not urged or raised at the hearing of the petition or appeal cannot be allowed to be
raised in review proceedings.
Only such errors in the judgment/order would justify review, which are self-evident, found floating on the
surface, are discoverable without much deliberation and have a material bearing on the final result of
the case.
(PLD 1963 SC 163, 1984 SCMR 568)
Promulgation of new law: New law having been promulgated long after the announcement of
impugned judgment of Supreme Court, change of law in circumstances, could not justify review of the
judgment passed on the basis of law prevailing at the time of judgment. (PLD 1997 SC 865 (e))
Review is not granted on the mere ground that one party or another conceives itself to be dissatisfied
with the decision of the SC. (1969 SCMR 10,247)
Error on the face of the record Respondent succeeded in getting relief contrary to law as well as
provisions of SC Rules, 1980 and the consistent practice prevalent for the hearing of the petition for
leave to appeal, being a person fugitive from law, he had not surrendered to the order of imprisonment
passed by Accountability Court, therefore he was not entitled to the relief which had been granted to
him. Order of the Court though mentioned that respondent had surrendered but record was silent
whether he was taken into custody or not. Judgment under review suffered from error on the face of the
record. Review granted.
(PLD 2005 SC 270 (c))
Accused not having found guilty of the contempt of court by the majority, the portion of the SC Order
that “the respondent is discharged in view of the mitigating circumstances of the case though found
guilty of contempt of court” did not correctly reflect the opinion of the majority and in consequence
needs to be corrected. Court’s order was reviewed accordingly.
(1995 SCMR 159)
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ABDUL WALI KHAN UNIVESITY
MARDAN
Abdul Wali Khan University Mardan Pakistan. http://www.awkum.edu.pk/

Constitutional Law of Pakistan
AMENDMENTS, ITS PROCEDURE AND BRIEF
SUMMARY
Abdul Wali Khan University Mardan Pakistan. www.awkum.edu.pk

Procedure for amendment
Procedure for amendment to the Constitution is laid down in part

XI of the Constitution which has two articles; 238 and 239.
Article 238 declares that constitution can be amended subject to

part XI which means that Constitution can not be amended in any
other way except the one provided by article 239.
Furthermore, ‘subject to this part’ also means that there is no
limitations on the power of parliament to amend the constitution
because part XI does not put any. However, it is mandatory to
follow the procedure laid down by article 239 for amending the
constitution.

Article 239 lays down the procedure for amending the constitution as follows:
(1) A Bill to amend the Constitution may originate in either House and, when the
Bill has been passed by the votes of not less than two-thirds of the total
membership of the House, it shall be transmitted to the other House.
(2) If the Bill is passed without amendment by the votes of not less than two-
thirds of the total membership of the House to which it is transmitted under
clause (1), it shall, subject to the provisions of clause (4), be presented to the
President for assent.
(3) If the Bill is passed with amendment by the votes of not less than two-thirds
of the total membership of the House to which it is transmitted under clause (1), it
shall be reconsidered by the House in which it had or originated, and if the Bill as
amended by the former House is passed by the latter by the votes of not less than
two-thirds of its total membership it shall, subject to the provisions of clause (4), be

(4) A Bill to amend the Constitution which would have the effect of
altering the limits of a Province shall not be presented to the
President for assent unless it has been passed by the Provincial
Assembly of that Province by the votes of not less than two-thirds
of its total membership.
(5) No amendment of the Constitution shall be called in question

in any Court on any ground whatsoever.
(6) For the removal of doubt, it is hereby declared that there is no

limitation whatever on the power of the Majlis-e-Shoora
(Parliament) to amend any of the provisions of the Constitution.]

Summary of Constitutional amendments
There have 25 amendments to the Constitution of Pakistan, so far. For a brief

summary of those amendments please visit the website of Senate of Pakistan on
the following link:
http://www.senate.gov.pk/en/essence.php?id=1053&catid=3&subcatid=182&cattitle
=Legislative%20Documents

Pre-Introduction phase of the Bill Or Drafting a Bill
According to the Rules of Business, 1973 the contents of the proposed legislation, in case of official bill,
shall be determined by the Division concerned. It shall also be responsible for consulting other Divisions
including Finance Division. After it is approved by the Cabinet, in accordance with rule 16, it shall be sent
to the Ministry of Law and Justice to draft the Bill. Ministry of Law and Justice along with drafting the Bill
shall also advice the concerned Division as to the competence of Parliament to make the law on the
subject to which the proposed legislation relates. The Division concerned, after it is drafted by Ministry
of Law and Justice, shall submit it to the cabinet for approval of the draft Bill and obtaining the approval
and signature of the Prime Minister. After it, the Division concerned shall forward the draft along with
the proposals and recommendations of cabinet and PM, if any, to the Ministry of Law and Justice in its
final shape along with statement of objects and reasons duly signed by the Minister-in Charge. The
Ministry of Law and Justice, after being satisfied of all the requirements, transfer the Bill to the
Parliamentary Affairs Division for arranging its introduction in the appropriate House of Parliament.
The Bill shall be introduced, on a specified date, by the Minister in-Charge or any other Minister on his
behalf. The Minister concerned shall in consultation with the Leader of the House, decide as to which of
the following motion should be made with regard to an official Bill after its introduction,–
(a) that it be taken into consideration at once and passed; or
(b) that it be taken into consideration on a date to be specified; or
(c) that it be referred to a Select Committee; or
(d) that it be circulated for the purpose of eliciting opinion thereon;

Pre-Introduction Phase or the Proposed Legislation or Drafting a Bill
Post Introduction Phase or Legislative Procedure in The Parliament
Article 70 of the Constitution lays down the legislative process when a Bill is introduced in the
Parliament which is as follows:
Introduction and Passing of Bills
A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if
it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is
passed without amendment by the other House also, it shall be presented to the President for assent.
If The Bill is Passed With Amendment by The House to Which it Was Transmitted
Clause (2) of article 70 provides that if a Bill transmitted to a House under clause (1) is passed with
amendments it shall be sent back to the House in which it originated and if that House passes the Bill
with those amendments it shall be presented to the President for assent.
Joint Session: In Case Bill Could Not Be Passed
According to clause (3) of article 70, if a Bill transmitted to a House under clause (1) is rejected or is not
passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with
amendments is not passed by that House with such amendments, the Bill, at the request of the House in
which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the
members present and voting in the joint sitting it shall be presented to the President for assent.
Clause (4) of the article 70 says that in this Article and the succeeding provisions of the Constitution,
“Federal Legislative List” means the Federal Legislative List in the Fourth Schedule.
President’s Assent to Bills
Article 75 lays down the procedure of President’s assent to the bills passed by parliament which is as
follows:
President Shall Assent to The Bill or Return The Bill For Reconsideration:
When a bill is presented to the President for assent, the President shall, within ten days:
(a) assent to the Bill; or
(b) in the case of a Bill other than a Money Bill, return the Bill to the Majlis-e-Shoora (Parliament) with a
message requesting that the Bill, or any specified provision thereof, be reconsidered and that any
amendment specified in the message be considered.
Bill to be Presented to President After Reconsideration by Parliament
Clause 2 of article 75 says that when the President has returned a Bill to the Majlis-e-Shoora
(Parliament), it shall be reconsidered by the Majlis-e-Shoora (Parliament) in joint sitting and, if it is again
passed, with or without amendment, by the Majlis-e-Shoora (Parliament), by the votes of the majority
of the members of both Houses present and voting, it shall be deemed for the purposes of the
Constitution to have been passed by both Houses and shall be presented to the President, and the
President shall give his assent within ten days, failing which such assent shall be deemed to have been
given.]
Bill Becomes Law
In terms of the provisions of article 75(3) the bill, it shall become law and be called an Act of Parliament
after President has assented to it.
Clause(4) of the article 75 says that no Act of Parliament, and no provision in any such Act, shall be
invalid by reason only that some recommendation, previous sanction or consent required by the
Constitution was not given if that Act was assented to in accordance with the Constitution.
Legislative Process in
Parliament
Principles of Policy and Fundamental Rights in the Constitution of
Pakistan
Part II of the Constitution of Pakistan, 1973 has One article i.e. art. 7 and two chapters; one
contains Fundamental Rights while the other contains Principles of Policy. Article 7, which
defines the State, is placed in Part II but falls outside of both the chapters, which means it is
applicable to both the chapters. This leads to confusion between the Fundamental Rights and
Principles of Policy. Similarity of contents of chapter 1 and 2 of part II also adds to the
confusion.
Part II of the Constitution

Article 7
Chapter 1
Chapter 2
Chapter 1 Chapter 2
Fundamental Rights Principles of Policy
Article 8-28 Article 29-40
What the Principles of Policy are?

 Principles of Policy are the very object and purpose for which the State is established,
 Aspirations of the Constitution makers and intended to be considered as the guiding

principles of the policy of State.
 the basic principles of the Constitution or

 principles which speak of the ideals that are to be achieved as the cherished goal of
every political party voted to power by the people of the State.
(PLD 1998 SC 1263)
As article 29 (1) enjoins that:
it is the responsibility of each organ and authority of the State, and of each person
performing functions on behalf of an organ or authority of the State, to act in accordance
with those Principles in so far as they relate to the functions of the organ or authority.
So Principles of Policy can be said to be the poles star for those who are to put these polices
into practice, for example, to be followed
 By the executive in their day to day business;
 By legislature when it makes laws, and
 By judiciary in understanding and applying the provisions of law; holding the same place
as principles of equity, justice and good conscience.
Principles of Policy in the Constitution of Pakistan

 Principles of Policy [Article 29]
 Responsibility with respect to Principles of Policy [Article 30]
 Islamic Way of Life [Article 31]
 Promotion of Local Government Institutions [Article 32]
 Parochial and other similar prejudices to be discouraged [Article 33];
 Full participation of women in national life.[Article 34]
 Protection of Family etc. [Article 35]
 Protection of Minorities.[Article 36]
 Promotion of Social justice and eradication of social evils.[Article 37]
 Promotion of social and economic well being of the people;[Article 38]
 Participation of people in armed forces[Article 39]
 Strengthening bonds with Muslim World and promoting international peace.[Article
40]
Inter-relation of Fundamental Rights and Principles of Policy
Fundamental Rights and Principles of Policy as enumerated in chapter 1 and 2 of part II
of the Constitution can be said to be the two sides of the same coin. One without the
other is incomplete and unfulfilled. The fundamental rights ensure political democracy
while the principles of policy strive to achieve economic and social democracy blended
with Islamic provisions.
The objective of the fundamental rights is to provide congenial environment for the
fullest development of the personality of citizens. For the fulfillment of this objective
the individual has been given a good number of freedoms. The objective of Principles of
Policy is to provide the individual with socioeconomic and political justice.
Fundamental Rights and Principles of Policy can be said to be the two sides of the same
coin, however, there are differences between the two.
Difference between Fundamental Rights and Principles of Policy

Fundamental Rights Principles of Policy
i. Nature of Instructions: i. Nature of Instructions:
Negative Positive
ii. Justiciable ii. Non-justiciable
iii. Enforcement
Mechanism: Art 8, iii. Enforcement
184(3), 199 Mechanism: art 29(2)
iv. Primacy iv. No primacy
Nature of Instructions
Fundamental rights Principles of policy
Negative Positive
 The nature of obligations imposed on  The nature of obligations imposed on
the State is negative. It restricts the the state is positive. It requires the
state from taking certain actions i.e. State to take certain actions to achieve
not interfere in the freedoms and the certain objectives i.e. promotion of
liberties of the citizens. local government, protection of family,
 It uses the words like: promotion of socio-economic justice,
 “No person shall be deprived….” etc.
 “No law shall authorize ….”  It uses the words like:
 The essential characteristic of  “Steps shall be taken”
fundamental rights is that they impose  “The state shall endeavor”
limitations, expressed or implied, on
public authorities, interfering with
their exercise. [PLD 1969 SC 387]
Judicial enforceability
 Fundamental Rights have a mandatory  The Principles of Policy are not

character and been placed beyond the mandatory in character nor
power of any organ of State whether enforceable at law. They are guiding
Executive or legislative to act in principles for all the organs of the state
violation of it. They cannot be taken but have no absolute quality attached
away, suspended or abridged, save as to them as is attached to the
provided by the Constitution. Article 8, Fundamental Rights. The courts cannot
for example, restricts the State from declare any law to be void on the
making any law in contravention of the ground of contravention of any of the
Fundamental Rights. A law so enacted, directives.
shall be void. [AIR 1958 SC731]
 An action by the legislature or the
executive in violation of Fundamental These are not enforceable by any judicial
Rights is void in law and the courts are process and no Court would be entitled to
bound to make a declaration declare any legislation as invalid on the
accordingly and to give suitable relief ground that it does not conform to the spirit
to the aggrieved party. of any of the directive principle
 [PLD 1964 SC 673]. [AIR 1954 SC 648].
 Article 29 (2) provides that the

observance of Principles shall be
regarded as subject to the
availability of the resources. So, the
State cannot be held responsible
for not observing a principle of
policy, if it does not have
resources.
Enforcement Mechanism
 Thanks to the provisions of article  The enforcement mechanism for

184(3), the Supreme Court is the Principles of Policy is different. Article
guardian of the Fundamental Rights. 29(3) provides that the president, in
Matters of Fundamental Rights can relation to affairs of the federation,
also be raised before High Courts and the governors of each province in
under article 199. It is the job of the relation to affairs of the province, shall
judiciary to decide that whether a cause to be prepared and laid,
fundamental right is violated or not? respectively, before the parliament
and provincial assembly, a report on
the observance and implementation of
the principles of policy. In, other
words, it is not the job of the judiciary
to see whether the principles of policy
are observed and implemented?
Furthermore, under article 30(2), in contrast to issue of Fundamental Rights, the validity
of an action or of law shall not be called in question on the ground that it is not in
accordance with Principles of Policy, and no action shall lie against the State, any organ
or authority of the State or any person on such ground.
On the contrary, the responsibility of deciding whether any action of an organ or

authority of the State is in accordance with the principles of policy is that of the
concerned organ or authority of the State.
Legal Primacy
 Fundamental rights are judicially  In 1980, the Supreme Court of India

supreme over the Principles Policy. while delivering judgment in the
Fundamental Rights are enforceable. Minerva Mills case made it quite
These have been given a primacy of clear that the precedence or
mention in the constitution. supremacy given to the Directive
Principles of Policy are non- Principles over the fundamental
enforceable which have been rights according to the Forty Second
incorporated in the Constitution after constitutional amendments was
the fundamental rights. These wrong. The courts have accepted
features are a source of legal primacy viewpoint that the directive principles
of the latter over the former. are subsidiary and not supreme over
 In the case of the State of Madras, the fundamental rights.
Vs. Champakam Dorairajan the  The same view has been taken in
Supreme Court of India held, “The Pakistan when the Supreme Court
directive principles of the state policy held that directive principles have to
which were expressly made conform and to run subsidiary to the
unenforceable by a court cannot provisions of Fundamental Rights. So
over-ride the provisions of Part III long as , there is no infringement of
which . . . . are made enforceable by any Fundamental Right, there can be
appropriate writs, orders or no objection to the State acting in
directions under Article 32. The accordance with the directive
directive principles have to conform principle.
to and run subsidiary to the chapter [PLD 1969 SC 387].
on fundamental rights.”
Principles of Policy do not confer vested rights

New District was created bona fide for advance of its educational and other interests
and seats were allocated to the people of said District for admission in Medical Colleges
of the Province in Public interest. Later on, a notification was issued by Government
which amended the Prospectus of the Medical Colleges treating the whole Province as
one District for the purpose of allocating seats in Medical Colleges. Validity of the
Notification was challenged in the Court.
Petitioner’s submission was that because the separate district of Malir was created in
pursuance of the provisions of Article 37, that Article in conjunction with the action
taken in pursuance thereof ought to be taken as having created some right in petitioner.
Court held that the submission is misconceived because once an action is taken or a law
promulgated by an organ or authority of the State in pursuance of the provisions of
Article 37, it is that action or that law only which must be examined to see whether any
right has thereby been created in any person. There is nothing in the Notification
creating Malir District conferring any right on the petitioners.
Court further held that Principles of Policy though described as Fundamentals to the
governance of the State, yet they have not been made enforceable by any Court.
Therefore, the question of creation of any right, vested or otherwise, in the petitioner
by Article 37 of the Constitution does not arise.
[PLD 1996 Karachi 1].
Principles of Policy: aid in interpretation of the Constitution

 Sindh High Court further held that the provisions of Article 37 and 38 are not directly
enforceable but are enforceable indirectly as aids in interpretation of other provisions of
the Constitution and of legislation. For this view it relied on the Miss Benazir Bhutto v.
Federation of Pakistan PLD 1988 SC 416 which held that “the directive principles of State
policy are to be regarded as fundamentals to the governance of the State, but they are
not enforceable by any Court.”
[PLD 1996 Karachi 1
 Principles of Policy contained in Article 29 to 40 of the Constitution when combined with

Article 184 (3) and Article 2A do provide lawful vehicle for interpretation, definition,
refinement and enforcement of fundamental rights contained in Chapter I, Part II.
Articles 8 to 28.
[NLR 1993 SCJ 749].
Principles of Policy as aid in interpretation; Provision of unpolluted water:

Example
Provision of unpolluted water; basic necessity of the people and primary duty of the
government covered by the principle of Promotion of social and economic well being of
the people as enshrined in Article 38 of the Constitution.
Article 9 and 14 of the Constitution guarantee the right to life and human dignity. Word
"Life" could not be confined to mere vegetable or animal existence, but it included the
right to all amenities and facilities which a person born in a free country was entitled to
enjoy with dignity. Right to life also includes the right to live in a pollution free
environment.
[2004 CLC 1353].
In hilly areas where access to water was scarce, difficult or limited, the right to have
water free from pollution and contamination was a right to life itself; that would not
mean that person residing in other parts of the country where water was available in
abundance, would not have such right. Right to have unpolluted water, was the right of
every citizen wherever he lived. Wide meaning should be given to the word life to
enable men not only to sustain life but to enjoy it……. Authorities constituted under
Pakistan Environmental Protection Act, 1997 were equally responsible to prosecute
concerned industries for willfully violating provisions of the said Act. Under provisions of
Article 38 (d) of the Constitution, it was the primary duty of Government to provide
people basic necessities of life which included unpolluted water for their consumption
[2000 YLR 2077].
Principles of Policy indicate the foundational principles of the Constitution
 Principles of Policy are not mere show words, they lay down the very object and
purpose of establishment of the State. These principles having become part of the
Constitution tell clearly that these are the foundational principles of the Constitution.
The achievement of the ideals set forth in Chapter 2 of Part II of the Constitution, is the
cherished goal of every political party voted to power by the people.
PLD 1998 SC 1263
 Under Article 29 it is the responsibility of each organ and authority of the state, and of
each person performing functions on behalf of an organ or authority of the state, to act
in accordance with principles of policy, in so far as they relate to the functions of the
organ or the authority. However, Article 29 also provides that as for as the observance
of any particular principle of policy is concerned, it may be dependent upon resources
being available for the purpose.
PLD 2005 Lahore
In what sense Principles of Policy can be considered as rights?

In what sense the Principles of Policy can be considered rights when they confer no legal
rights, create no legal remedies, are not justiciable, and they are not fundamental
rights?
Sindh High Court observed in in (PLD 1990 Karachi 342) that:
 "Although the Directive Principles of State policy confer no legal rights and create no
legal remedies, they appear to be like an instrument of instructions, or general
recommendations addressed to all authorities in the State reminding them of the basic
principles of the new social and economic order which the constitution aims at building."
 The honorable Court further observed that these fundamental axioms of State policy,
though of no legal effect, have served as useful beacon lights to Courts. It is incorrect to
categorize them wholly as rights, duties, obligations or even as principles as the terms
are understood in common parlance although they partake the nature of each one of
them. They are rights which the individual enjoys in his collective capacity by virtue of
being a member of the Welfare State. They are not rights in the sense that they are
inherent and the individual can demand as a matter of right, but rights which are
conferred by the State on the individual for the specific objective of promoting social
wellbeing.
Similarly, they are duties devolving upon the State only to the extent that they have to establish
a social order in which social, economic, and political justice would prevail. They are not duties
in the legal sense, duties for the non performance of which the state shall be answerable in the
Courts of law, but in the moral and constitutional sense.
The federal legislature in Pakistan is Parliament (also known as Majlis-e-Shoora which literally means an
advisory council or consultative council). Parliament in Pakistan, according to article 50, is comprised of
President and the two houses known as National Assembly and Senate. Representation to various
federating units in the National assembly or the lower house is given on the basis of population; the
more populous a federating unit is the more it has seats in the National Assembly. The Senate, in
accordance with the principles of federation, represents the federating units on the basis of equality.
Small and large federating units have equal number of seats. In other words, Baluchistan the least
populous province has equal number of senators to that of Punjab, the most populous province.
National Assembly
According to article 51 there shall be three hundred and thirty six for members in the National
Assembly, including seats reserved for women and non-Muslims.
Who can vote?
A person shall be entitled to vote if—
(a) he is a citizen of Pakistan;
(b) he is not less than eighteen years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent court to be of unsound mind.
Who can be voted as Member of Parliament
A person to be elected to the parliament must be:
(a) A citizen of Pakistan
(b) In the case of National Assembly, not less than 25 years of age and enrolled in the electoral list in any
part of Pakistan if he or she is contesting election on a general seat or a seat reserved for non-Muslims.
If she is contesting election on a seat reserved for women then she must be enrolled in the electoral list
in the province concerned.
(c) In the case of Senate, not less than 35 years of age and enrolled in the electoral list in the province or
Federal Capital as the case may be, from where he or she is contesting election.
Furthermore, he or she must fulfill the requisites of article 62 in order to be a member of Parliament.
Allocation of seats in National Assembly to Federating units
According to article 51, clause (3) the three hundred and thirty six seats in the National Assembly ,
except the seats mentioned in clause (4) of article 51 i.e. the seats reserved for non-Muslims, shall be
allocated to each Province and the Federal Capital as under :—
Allocation of Seats to Federating Units in National Assembly of Pakistan
Notwithstanding the allocation of seats by clause 3 as in the above table or any other law for the time
being in force, the members of the National Assembly from the Federally Administered Tribal Areas to
be elected in the general elections, 2018 shall continue till dissolution of the National Assembly and
thereafter this clause shall stand omitted.
Bifurcation of seats in National Assembly in Different Categories: General seats, Women Seats and Total
Seats
Constituencies for General seats

The constituencies for the general seats shall be single member territorial constituencies and the
members to fill such seats shall be elected by direct and free vote in accordance with law.
Constituencies for seats reserved for women
Each Province shall be a single constituency for all seats reserved for women which are allocated to the
respective Provinces under clause (3) of article 51.
Article 51 clause (6) sub-clause (d) provides that members to the seats reserved for women which are
allocated to a Province under shall be elected in accordance with law through proportional
representation system of political parties’ lists of candidates on the basis of total number of general
seats secured by each political party from the Province concerned in the National Assembly. However, for
the purpose of this paragraph the total number of general seats won by a political party shall include the
independent returned candidate or candidates who may duly join such political party within three days
of the publication in the official Gazette of the names of the returned candidates.
Seats Reserved for non-Muslims
In addition to the number of seats referred to in clause (3), there shall be, in the National Assembly, ten
seats reserved for non-Muslims. The constituency for all seats reserved for non-Muslims shall be the
whole country.
According to article 51 clause (6) sub-clause (e) members to the seats reserved for non-Muslims shall be
elected in accordance with law through proportional representation system of political parties’ lists of
candidates on the basis of total number of general seats won by each political party in the National
Assembly and the total number of general seats won by a political party shall include the independent
returned candidate or candidates who may duly join such political party within three days of the
publication in the official Gazette of the names of the returned candidates.
Allocation of seats in the National Assembly on the basis of population
According to clause 5 of article 51, the seats in the National Assembly shall be allocated to each province
and the Federal Capital on the basis of population in accordance with the last preceding census officially
published.
Provided that for purposes of the next general elections to be held in 2018 and bye-elections related
thereto, the allocation shall be made on the basis of provisional results of the 2017 census which shall
be published by the Federal Government.
Allocation of Seats in the National Assembly to Federating Units
Duration of National Assembly
According to article 52 the National Assembly shall, unless sooner dissolved, continue for a term of five
years from the day of its first meeting and shall stand dissolved at the expiration of its term.
The Senate of Pakistan

Composition of Senate
According to the provisions of article 59 of the Constitution of Pakistan, 1973 the Senate shall consist of
ninety-six members, of whom,
 fourteen shall be elected by the members of each Provincial Assembly
 two on general seats, and one woman and one technocrat including aalim shall be elected from
the Federal Capital in such manner as the President may, by Order, prescribe;
 four women shall be elected by the members of each Provincial Assembly;
 four technocrats including ulema shall be elected by the members of each Provincial Assembly;
and
 four non-Muslims, one from each Province, shall be elected by the members of each Provincial
Assembly. Provided that this paragraph shall be effective from the next Senate election after the
commencement of the Constitution (Eighteenth Amendment) Act, 2010.
Representation of Provinces and Federal Capital in the Senate of Pakistan

Members of the Senate to be Elected by Each of the Four Provinces and Federal Capital
Proportional Representation System
Election to fill seats in the Senate allocated to each Province shall be held in accordance with the system
of proportional representation by means of the single transferable vote.
Specimen of the Single Transferable Vote for Proportional Representation System
The Term of the Senators
According to article 59, clause (3) the Senate shall not be subject to dissolution but the term of its
members, who shall retire as follows, shall be six years :
> of the 14 members elected by a provincial assembly seven shall retire after the expiration of the first
three years and seven shall retire after the expiration of the next three years;
> of the four members elected from Federal Capital,—
(i) one elected on general seat shall retire after the expiration of the first three years and the other one
shall retire after the expiration of the next three years; and
(ii) one elected on the seat reserved for technocrat shall retire after first three years and the one elected
on the seat reserved for women shall retire after the expiration of the next three years;
> of the four women members elected by a provincial assembly, two shall retire after the expiration of
the first three years and two shall retire after the expiration of the next three years;
> of the four members elected by provincial assembly on technocrat seat, two shall retire after the
expiration of the. first three years and two shall retire after the expiration of the next three years; and
> of the members elected on non-Muslims seat, two shall retire after the expiration of first three years
and two shall retire after the expiration of next three years:
Provided that the Election Commission for the first term of seats for non-Muslims shall draw a lot as to
which two members shall retire after the first three years.
Retirement Plan of the Senators
Although paragraph (b) of clause (1) and paragraph (b) of clause (3) of article 59 are omitted through
25th Constitutional amendment the existing members of the Senate from the Federally Administered
Tribal Areas were allowed by clause 3-A of article 59 to continue till expiry of their respective terms of
office. On the expiry of their terms of office clause 3-A shall also omit.
Clause (4) of article 59 provides that the term of office of a person elected to fill a casual vacancy shall
be the unexpired term of the member whose vacancy he has filled. For example the natural term of
office of a senator is six years, however, if his seat is vacant after two years due to resignation,
disqualification or death and another person is elected to fill that vacant seat. His term of office shall be
4 years i.e. the unexpired term of his predecessor.

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PART-1

Art 2. Islam to be State Religion

Art 2A. Objectives Resolution as substantive part of

Art 3. Elimination of Exploitation

Art 4. Right to be dealt with in accordance with law

Art 5. Loyalty to State and Obedience to

Constitution and Law

Art 6. High Treason

Are FATA/ PATA/ Northern Areas part of Pakistan?

Appeals filed by persons serving in Northern Areas

(2002 PLC (CS) 498 (b))

Northern Areas are part of Pakistan

 Gilgit-Baltistan by virtue of Art. 1(2)(d) of the Constitution, for all intents

Azad Jammu and Kashmir

Azad Jammu and Kashmir

 AJK is a territory included in Pakistan in view of Art. 1(2)(d) of Constitution

FATA and PATA

Tribal Areas: Article 246 mentions two categories of tribal areas:

Federally Administered Tribal Areas and

Provincially Administered Tribal Areas.

FATA and PATA

 Respondent filed complaint before Political Agent of NW Agency under sec.

 Assistant Political Agent issued notices to petitioners in the said complaint at

 High Court had no jurisdiction to quash the impugned notice issued by

Discretion of the parliament to admit…..states to Pakistan

Religion and Din PLD 1976 Lah 930

(i) sovereignty, control, authority over others and coorresponding total

(iv) judgment and consequential punishment;

Religion and Din PLD 1976 Lah 930

Religion and Din PLD 1976 Lah 930

Religion and Din PLD 1976 Lah 930

In the view of declaration of Art 2, Pakistani judiciary is constrained to apply

Art. 3 Elimination of Exploitation

Exercise of discretion by government functionaries

Non payment of salary

In Mst Zaib-Un-Nisa v/sThe Government of Punjab, Department of Education

Art 4. Right to dealt with in accordance with Law

It envisages two categories of person:

Citizen of Pakistan: wherever he may be (whether in Pakistan or abroad)

 Thus a policeman or jailer must be equipped with legal authority to

 Similarly a person requiring another person to do something e.g. a jailer

Constitution in unambiguous terms has provided protection to life, liberty, body,

The word “law” is not defined by the article. However, it includes:

Customs to the extent they are recognized by statute

International law as adopted by conventions and incorporated in the domestic

Term “law” does not include Islamic Law

A public official’s power or right to act in certain circumstances according to

Discretion is to be exercised in just, fair and proper manner. Concept of absolute

Art. 5 Loyalty to State and obedience to Constitution and Law

Two parts of the article

Loyalty to the State : Citizen of Pakistan

The article gives a Constitutional sanction to the punishment of acts of disloyalty

If a citizen which includes a person performing functions in connection with the

Public servant are not subservient to the political executive.

In their capacity as advisors in decision making or as administrators and enforcers

Art 6. High Treason

Under Article III,

Black’s Law Dictionary: Abrogate means to annul, cancel, revoke, repeal or

Subversion: overthrowing, destroying

As amended by 18th amendment

18th amendment added suspension and holding in abeyance to art. 6

Suspend: to temporarily delay, interrupt or terminate

Hold in abeyance: adjourn, delay, defer postpone or retard

What 18th amendment missed