Islamic Concept of Human Rights

‫ﺑﺳم ﷲ اﻟرﺣﻣن اﻟرﺣﯾم‬ ‫ﻧﺣﻣده و ﻧﺻﻠﯽ ﻋﻠﯽ ٰ رﺳوﻟہ اﻟﮑرﯾم‬ ISLAMIC CONCEPT OF HUMAN RIGHTS Justice ® Dr. Munir Ahmad Mughal http://ssrn.com/Author=1697634 INDIVISIBILITY OF LIFE UNDER ISLAM The concept of Islam is concept of the indivisibility of life; life has to be viewed as a whole and organized as a whole. There is no priesthood in Islam. Thus Islamic state would be theistic but not theocratic. Rights, fundamental or others, could be only rightly grounded in the concepts of reality, truth and kindness. According to Islam, life does not end with death but continues towards higher and higher elevations. It is in this sense that Islamic principles are broader in outlook and eternal in existence. CONCEPT OF LIBERTY Under Islamic political philosophy, there can be no liberty without limitations. Liberty is nothing but an opportunity for the performance of duties. The Holy Qur’an says that the prophets are commissioned to break your chains and remove the halters from your necks so that you may approach your Lord freely with the dignity of free human beings, who in serving God have not served any arbitrary tyrant but have been really true to their own selves. 2 ISLAMIC PRINCIPLES OF HUMAN LIFE Materialistic concept of human life in which there is no prevision for the development of human personality has done great harm to the human society as a whole. God Almighty has, in His Last Book, guided mankind with basic and fundamental principles of human life which when truly acted upon can bring boon to the entire mankind. Some of the laws are as under:-- 3 1. Quality of Mankind                        O mankind! We created you from a single (pair) of a male and a female, and made you into nations and Tribes, that ye may know Each other (Not that ye may despise (each other). Verily the Most honoured of you In the sight of Allah is (He who is) the Most righteous of you. and Allah has full knowledge and is well acquainted (with all things). [49 : 13] 4 The above verse has made it clear that there should be no discrimination on account of race, colour or global differences amongst men. But it does not mean that all men have got similar or equal degree of reason etc. The criteria for honour that has been told is Taqwa (fear of God, resulting in best of conduct). To progress equal opportunities must be given to the people and the results of such achievements should be left on their individual hard work, labour and other outputs. A king or slave shall have equal opportunities to show their worth in the kingdom of God. 2. Unity of Mankind 5                                                      Mankind was one single nation, and Allah sent Messengers with glad tidings and warnings; and with them He sent the Book 6 In truth, to judge between people In matters wherein They differed; but the people of the Book, after the Clear Signs came to them, did not differ among themselves, except through selfish contumacy. Allah by His Grace guided the believers to the truth, concerning that wherein They differed. for Allah guided whom He will to a path that is straight. [2:213] This verse also gives stress on the point that all mankind was one in the beginning, their forefather being Hadrat Adam1 (peace be 1 The first man sent on earth by God along with his wife Eve. The reference is available in the following verses of the Holy Qur’an: 7                                                                                                                                  8                                                                                                                     9                       30. Behold, Thy Lord said to the angels: "I will create a vicegerent on earth." They said: "Wilt Thou place therein one who will make mischief therein and shed blood?- whilst we do celebrate Thy praises and glorify Thy holy (name)?" He said: "I know what ye know not." 31. and He taught Adam the nature of all things; then He placed them before the angels, and said: "Tell me the nature of these if ye are right." 32. They said: "Glory to thee, of knowledge we have none, save what Thou hast taught us: In truth it is Thou who art perfect In knowledge and wisdom." 33. He said: "O Adam! Tell them their natures." when He had told them, Allah said: "Did I not Tell you that I know the secrets of heaven and earth, and I know what ye reveal and what ye conceal?" 34. and Behold, we said to the angels: "Bow down to Adam" and They bowed down. not so Iblis: He refused and was haughty: He was of those who reject Faith. 10 35. we said: "O Adam! dwell Thou and Thy wife In the Garden; and eat of the bountiful things therein As (where and when) ye will; but approach not This tree, or ye run into harm and transgression." 36. then did Satan make them slip from the (garden), and get them out of the state (of felicity) In which They had been. we said: "Get ye down, all (ye people), with enmity between yourselves. on earth will be your dwelling-place and your means of livelihood - for a time." 37. then learnt Adam from His Lord words of inspiration, and His Lord turned towards him; for He is Oft-Returning, Most Merciful. 38. we said: "Get ye down all from here; and if, As is sure, there comes to you guidance from me, whosoever follows My guidance, on them shall be no fear, nor shall They grieve. 39. "But those who reject Faith and belie Our Signs, They shall be companions of the fire; They shall abide therein." 40. O Children of Israel! call to mind the (special) favour which I bestowed upon you, and fulfil your Covenant with me As I fulfil My Covenant with you, and fear none but Me. 41. and believe In what I reveal, confirming the Revelation which is with you, and be not the first to reject Faith therein, nor sell My Signs for a small price; and fear me, and me alone. 11 upon him). This diversity and dissemination of mankind on the earth should not be taken to make them unequal as their root is one and their end will be one. The kind prophet (peace be on him) too had said that the people were all sons of Hadrat Adam and 42. and cover not truth with falsehood, nor conceal the truth when ye know (what it is). 43. and be steadfast In prayer; practise regular charity; and bow down your heads with those who bow down (in worship). 44. do ye enjoin right conduct on the people, and forget (to practise it) yourselves, and yet ye study the Scripture? will ye not understand? 45. Nay, seek ((Allah)'s) help with patient perseverance and prayer: it is indeed hard, except to those who bring a lowly spirit,46. who bear In mind the certainty that They are to meet their Lord, and that They are to return to Him. 12 that Adam was made of clay thus negating all sorts of pride based on race, colour or global differences. 3. FREEDOM TO ALL RELIGION                          Those who believe (in the Qur'an), and those who follow the Jewish (scriptures), and the Christians and the Sabians,- any who believe In Allah and the Last Day, and work righteousness, shall have their reward with 13 their Lord; on them shall be no fear, nor shall They grieve. [2 : 62] Here it has been told that no doubt Islam is the way of life that has been accepted by God Almighty now onwards and no other way of life is approved by Him which does not conform to Islamic principles, yhet freedom to profess any way of life is still there. “There shall be no compulsion (from Islam) in the matter of religion, (2 : 256), nor shall it offend any other religion. However, it has been ordained that a band of men, amongst the Muslim community shall be such who will call to excellence, order the doing of good things and forbid the doing of evil things and in case there is any 14 offence against them, the Muslim community shall have the right to defend itself. Thus Islamic wars are not the ordinary wars but they were all in the cause of truth and defensive. Islamic history is replete with such instances that Muslims had never attacked non-Muslims for the sake of wealth or land. The arrival of Muhammad bin Qasim in India, or Tariq Bin Ziad in Spain and other generals of Islam towards various corners of the world were all to save mankind from the clutches of barbarous acts of the non-Muslim rulers. On the other hand when we read the world history we find that most of the wards started to increase the territories of the attackers or to enslave the mankind without any fault and their enslavement has lasted for generations. 15 Islam has not abolished slavery with one stroke of its commandment but has adopted such persuasive measures that cut the very roots of slavery. For most of the offences, releasing of a neck (raqabah/‫ )رﻗﺒۃ‬that is freeing of a slave has been ordained. Again the direction is that in future none should be made a slave except when he tries to become an active enemy in war against Islam. History tells us that the treatment prescribed by Islam towards slaves was very nice. The very famous incident of a slave boy who had remained with the Prophet for ten years when his parents came to take him back and the Prophet (peace be upon him) gave the option to the boy, the boy replied that “I am better to remain slave of the Prophet of Islam than to be free.” These are not 16 sentimental stories but hard facts of history and preserved for the last fourteen hundred years. Again, the sending of ’Usamah as the Commander in Chief of Muslim army by the first Caliph of Islam is another clear example of such treatment. It is also known to the historian that when Hadrat `Umar Faruq (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬was entering a conquered city and it was the turn of his slave to ride on the camel, Hadrat `Umar Faruq (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬got down and caught hold the string of the camel while the slave was riding. The example of Hadrat `Uthman Ghani, (‫ )رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬, the generous, is self sufficient. Same was the treatment given by Hadrat `Ali ‫)رﺿﯽ ﷲ‬ (‫ﺗﻌﺎﻟﯽ ٰ ﻋﻨہ‬. When he appeared in a court of justice, and the judge offered him seat as a 17 mark of respect, he denied and said if a judge starts doing like that, the justice will be negated. After caliphate was over, the materialistic trends increased amongst Muslim rulers for which Islam should not be blamed, even then whenever the light of Islam prevailed men like `Umar bin `Abdul `Aziz (‫ )رﺣﻤۃ ﷲ ﻋﻠﯿہ‬came on the world scene. 4. FREEDOM OF TRADE                           18 O ye who believe! Eat not up your property among yourselves in vanities: but let there be amongst you traffic and trade by mutual good-will: nor kill (or destroy) yourselves: for Verily Allah hath been to you Most Merciful! [4:29] Except the trade of unlawful (haram/‫)ﺣﺮام‬ goods there is freedom of joining any profession, vocation and commerce or trade. The only limitation on the trade is that there should be no squandering of wealth in vanity. None is allowed to cheat other or get undue benefit. Hoarding, smuggling, profiteering, gambling, speculations have also been ousted from the definition of trade by mutual consent in the interest of mankind. The intention behind the unsocial 19 methods of trade is always to accumulate wealth by fraudulent means in disguise of various pleasant looking names. It is told that the participants would become rich in a night but often it happens that they lose their hard earned income within few hours. Islam being an universal way of life, the religion of moderation, a system of peaceful living and a mode of creating fraternity even amongst the most hated ones, it has forbidden the so called easy methods of squeezing the wealth of others. The interest of mankind, the welfare of sons of Adam and the betterment of those living under the sky and the earth is the sole intention of Islam. It would not be out of question to mention here that the Holy Qur’an has also enjoined the writing of agreements for long 20 term trade based on loans and keeping of mortgages, etc. 5. RULE OF LAW                              Allah doth command you to render back your Trusts to those to whom They are due; and when ye judge between man and man, that ye judge with justice: Verily How excellent is the teaching which He giveth you! for Allah is He who heareth and seeth all things. [4:58] 21                                O ye who believe! stand out firmly for Allah, As witnesses to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. be just: that is next to piety: and fear Allah. for Allah is well-acquainted with all that ye do. [5:8] It is well established principle of justice that at the time of adjudicating between the two 22 parties, the justice should be administered without any fear or favour. There are two things which come in the way of judging a thing fairly, namely either the party appearing before the judge is his relation or friend who has rendered some service for him in the past or for whom he had got certain affections or there are other strains which incline the judge to show his inclination towards that party or the party is an enemy or the one who has committed some wrong to the judge or his relations or friends in the past and a feeling of revenge is thus hidden in his heart. These are two stages where the real test of the judge comes in. He must stand out firmly for justice caring for neither party nor their relationship not their social status and should fear none 23 but God and should administer justice according to nothing but law and law alone. Some things has been prescribed for the witnesses in the Qur’an in the following glorious verse:                                           O ye who believe! stand out firmly for justice, As witnesses to Allah, Even As 24 against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. follow not the lusts (of your hearts), Lest ye swerve, and if ye distort (justice) or decline to do justice, Verily Allah is well- acquainted with all that ye do. [4:135] The words “verily God is well-acquainted with all that ye doing very important. They tell that those who will do justice they are also the very sight of God and will be awarded their due and those who distort justice or decline to do justice should also note and beware of the Clutch of God which in fact is the most severe. In doing justice there is no question of Muslim and nonMuslim, no discrimination of rich or poor, 25 consideration of friends and foes. It was justice which had strength in the foundations of Khilafat-i-Rashida. 6. INVIOLABILITY OF HOMES:                     O ye who believe! enter not houses other than your own, until ye have asked permission and saluted those In them: that is best for you, In order that ye may heed (what is seemly). [24:27] 26 The respect and dignity has been guaranteed for all mankind for all mankind and it has been ordained that permission be taken while entering the houses of others and the best way of asking the permission has been taught to invoke peace upon the folk thereof. 7. INJUNCTION AGAINST SUSPICION AND SPYING                                     27 O ye who believe! avoid suspicion As much (as possible): for suspicion In some cases is a sin: and spy not on Each other behind their backs. would any of you like to eat the flesh of His dead brother? Nay, ye would abhor it...But fear Allah. for Allah is OftReturning, Most Merciful. [49:12] To maintain internal order and to safeguard against external attack suspicion should be shunned. In other words, humanity as a whole has been declared to be respectful. Unnecessary and uncalled for suspicion sometimes leads to unnecessary conflicts. Same is the case with spying and backbiting. Much damage has been done to mankind by false propaganda through various mass media of communication. Backbiting also 28 makes man coward and habit of telling a lie is created. Islam has safeguarded from the evil effects of suspicion and back biting. 8. NO LIABILITY FOR ACTIONS OF OTHERS                                  Say: "Shall I seek for (my) Cherisher other than Allah, when He is the Cherisher of all things (That exist)? Every soul draws the 29 meed2 of its acts on none but itself: no bearer of burdens can bear of burdens can bear the burden of another. Your goal in the end is towards Allah. He will tell you the truth of the things wherein ye disputed." [6:164] This verse has made it clear that there is no vicarious liability for the acts done by a man. Each is responsible for his own individual acts and offences. In pagan times it was bad custom that one man’s fault was put on another man’s shoulder which was really unjust. The sins of a father would bring punishment to the father and the sins of a son would bring punishment to the son. 2 A fitting recompense. 30 This right has thus guaranteed the safety of life on a common man who is innocent. 9. LIBERTY          Verily, this brotherhood of yours is a single brotherhood, and I am your Lord and Cherisher: Therefore serve me (and no other). [21:92] Here mankind has been taught that they are all brothers and common goal is the pleasure of God. None is under the bondage of 31 another and all are under the bondage of their Creator. The following are the instances of the human rights that have been available to mankind during the life of the Prophet of Islam and his four pious Caliphs and other followers. LAST PROPHET HADRAT MUHAMMAD (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯾہ و آﻟہ وﺳﻠم‬AND FUNDAMENTAL RIGHTS Hadrat Muhammad, the last of all Prophets and the Messenger of Allah ( ), impressed ineffaceably the unity of God and the equality of men upon the minds of the nations who heard his voice. His democratic thunder was the signal for up rise of human intellect against tyranny of priests and oppressive institutions, when the Human soul was crushed under the weight of co‫ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬ 32 intelligible dogmas, and the human body trampled under the tyranny of vested interest, he broke down barriers of caste and exclusive principles. He swept away with his breath the cobwebs which self-interest had woven in the path of man to God. He abolished all exclusiveness in man’s relations to his Creator. The Prophet proclaimed, “People are all equal as the teeth of comb.” He preached freedom of speech and opinion. The highest kind of Jihad (Holy War) is to speak for truth in face of a Sultan (King or Government) that deviates from right path. One of the great declarations of human rights is contained in the famous sermon of the Holy Prophet delivered at Arafat on March 7, 632 AD on the occasion of his 33 Farewell Pilgrimage: You lives and property are sacred and inviolable as the sacred inviolability of this very day of (Pilgrimage). FIRST WRITTEN CONSTITUTION States are a very antique institution in human society yet the earliest and first written Constitution, in the sense that is promulgated by the Sovereign of a State, dates only from the time of the Holy Prophet of Islam. Preserved by Ibn Hisham and Ibn `Ubaid, among the extant classical writers, the document has been translated into almost all the languages of the world. It consists of 54 sections. It constituted Medina as a city to be of Federal type. The federal units consisted of three main sections of population subdivided into many more, viz., 34 Meccan refugees Medinite Arabs and Jews. Each had autonomy in everything except defence and foreign relations. The Jews had a separate judicial system of their own. Civic equality, freedom from fear, freedom of belief and religious practice, freedom of teaching, freedom of trade and commerce were conceded therein. ISLAMIC CHARTERS AND DECLARATIONS It will not be out of place to quote some of the Charter granted and the Declarations made by the Holy Prophet, early Caliphs and the Muslim Generals whereby rights in the nature of fundamental rights were fully protected and guaranteed. 35 The Charter granted by Prophet Muhammad (‫ )ﺻﻠﯽ ﷲ ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬to the Christians of Najran reads as follows: “(The people of) Najran and their followers are granted the protection of Allah and the security of Muhammad the Prophet, the Messenger of Allah ( ‫ﺻﻠﯽ ﷲ‬ ‫ )ﻋﻠﯿہ و آﻟہ وﺳﻠﻢ‬, in respect of their person, religion, lands and possessions, including those who are absent and those who are present, their camels, messengers and images. The State in which they previously were shall not be changed, nor shall any of their religious services or images be changed. No attempt shall be made to turn a bishop from his bishopric, a monk from his office, whether what is under the control of each 36 is small or great. They shall not be held responsible for any wrong deed or bloodshed in pre-Islamic times. They shall not be called to military service nor shall they have to pay the tithe. Not army shall tread their law.” ABU BAKR SIDDIQ (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ ) Immediately after election as Caliph, Abu Bakr addressed the assemblage saying: “And now verily I have been placed in this authority though I am averse to it and, by Allah, I would have been pleased if anyone of you had sufficed for it in my stead. I am a mortal and not better than anyone of you; than of watchover me and when you see that I am steadfast, then obey me and when you see that I am aside from the right path, set me right. 37 Know, ye men, that piety is the most solid goodness and the vilest of what is vile is vice. Verily the strongest among you before me is he that is weak, inasmuch as I shall take for him what is due to him and the wealthier among you before me is he that is strong, inasmuch as I shall take from him that which is due by him. I have spoken and may Allah have mercy upon me and upon you.” `UMAR FARUQ (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ ) Caliph Omar granted the following charter to the people at Jerusalem: “In the name of God, the Merciful, the Compassionate. This is the security which `Umar, the servant of God, the commander of the faithful, grants to the people of Allah. He grants to all, whether 38 sick or sound, security for the lives, their possessions, their churches and their crosses, and for all that concerns their religion. Their churches shall not be changed into dwelling places, nor destroyed, neither shall they nor their appurtenances be in any way diminished, nor the crosses of the inhabitants nor aught of their possession, nor shall any constraint be put upon them in the matter of their faith, nor shall any one of them be harmed.” `ALI AL-MURTADA (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ ) Caliph Ali sent the following letter to one of his Governors: “After prayers to God and praise of the Holy Prophet (peace be upon him) be it known to you that villagers, farmers and 39 husbandmen of the provinces under you, complain of your harshness, arrogance and cruelty. They complain that you consider them as mean, humble and insignificant and treat them insultingly and you are cruel and harsh to them. I deliberated about their complaint and about the situation and I found that if on account of their heathenism they do not deserve any favourable treatments or extra privileges yet they do not deserve to be treated insultingly, cruelly and harshly. They are governed by us, they have made certain agreements with us and we are obliged to respect and honour the terms of those agreements. Therefore, you in future be kind to them, tolerate them and give them due respect, 40 but at the same time keep your prestige and guard well the position and honour of the authority which you hold, therefore govern with a soft but strong hand. Treat them as they individually deserve, kindly or harshly and with respect or with contempt.” Khalid bin Walid (‫رﺿﯽ ﷲ ﺗﻌﺎﻟﯽ ٰ ﻋﻧہ‬ ) Another famous Charter of Liberty, which shows a true Islamic spirit, was that issued by Khalid bin Walid, the great commander who served the first Caliph, Abu Bakr, and who was called as the Sword of Allah. The Charter reads: “In the name of Allah the Compassionate, the Merciful: this is what Khalid bin Walid would grant to the inhabitants of Damascus if he enters 41 therein. He promises to give them security for their lives, property, and churches. Their city walls shall not be demolished, neither shall any Muslim be quartered in their houses. Thereunto we give them the pact of Allah and the protection of His Prophet, the Caliph and the believers. So long as they pay their taxes, nothing but the good shall befall them.” ABBASIDE CALIPHS The distinguished Orientalist, Dr. Mingana,3 commenting on the Charter of Liberty granted by one of the Abbaside Caliphs to the Nestorian Christians points out that it guaranteed freedom of worship, the right to 3 <http://www.mingana.bham.ac.uk/biog.pdf> visited 3 June 2012. 42 appoint church officers, the protection of property, and the free exercise of religious rites and duties. He then goes on to discuss the civil freedom enjoyed by the Nestorians, and says: “The statutory attitude of Islam in this subject is laid down in clear terms in the said document which proves beyond the possibility of doubt that statutory intolerance was not among the defects of Islam. The charter emanates from the Chancery of an Abbaside Caliph, but could an English King, a Dutch Queen or a French President write in the Twentieth Century a more tolerant charter in favour of their innumerable Muslim subjects.” 43 ‫‪Universal Declaration of Human Rights by‬‬ ‫‪the United Nations Organization4‬‬ ‫‪The Arabic Translation of UDHR is as under:‬‬ ‫اﻟﺪﯾﺒﺎﺟﺔ‬ ‫ﰷن ﻟﻜﺮاﻣﺔ اﻟﻤﺘ ٔ ﺻﻠﺔ ﰲ ﲨﯿﻊ ٔ ﻋﻀﺎء ا‬ ‫اﻻﻋﱰاف‬ ‫ﻟﻤﺎ‬ ‫ٔ ﴎة اﻟ ﴩﯾﺔ وﲝﻘﻮﻗﻬﻢ اﻟﻤ ﺴﺎوﯾﺔ اﻟﺜﺎﺑﺘﺔ ﻫﻮ‬ ‫ٔ ﺳﺎس اﳊﺮﯾﺔ واﻟﻌﺪل واﻟﺴﻼم ﰲ اﻟﻌﺎﱂ‪.‬‬ ‫ﺣﻘﻮق اﻻ ٕ ﺴﺎن وازدراؤﻫﺎ ﻗﺪ ٔ ﻓﻀﯿﺎ ا ٕﱃ ٔ ﲻﺎل ﳘﺠﯿﺔ ٓ ذت اﻟﻀﻤﲑ اﻻ ٕ ﺴﺎﱐ‪ ،‬وﰷن‬ ‫وﻟﻤﺎ ﰷن‬ ‫ﺗﻨﺎﳼ‬ ‫ﻏﺎﯾﺔ ﻣﺎ‬ ‫ا ٕ ﻟﯿﻪ ﻋﺎﻣﺔ اﻟ ﴩ اﻧ ﺜﺎق ﻋﺎﱂ ﯾﺘﻤﺘﻊ ﻓﯿﻪ اﻟﻔﺮد ﲝﺮﯾﺔ اﻟﻘﻮل واﻟﻌﻘﯿﺪة وﯾﺘﺤﺮر‬ ‫اﻟﻔﺰع‬ ‫واﻟﻔﺎﻗﺔ‪.‬‬ ‫ٔ ﻣﺮ ا ٕﱃ اﻟﺘﻤﺮد‬ ‫اﻟﴬوري ٔ ن ﯾﺘﻮﱃ اﻟﻘﺎ ن ﲪﺎﯾﺔ ﺣﻘﻮق اﻻ ٕ ﺴﺎن ﻟﻜﯿﻼ ﯾﻀﻄﺮ اﻟﻤﺮء ٓ ﺧﺮ ا‬ ‫وﻟﻤﺎ ﰷن‬ ‫اﻻﺳ ﺒﺪاد واﻟﻈﻠﻢ‪.‬‬ ‫وﻟﻤﺎ ﰷن‬ ‫اﳉﻮﻫﺮي ﺗﻌﺰ ﺗﻨﻤﯿﺔ اﻟﻌﻼﻗﺎت اﻟﻮدﯾﺔ ﺑﲔ اﻟﺪول‪،‬‬ ‫ﰷﻧﺖ ٔ ﱈ اﻟﻤﺘﺤﺪة ﻗﺪ ٔ ﻛﺪت ﰲ اﻟﻤﯿﺜﺎق‬ ‫ﺷﻌﻮب ا‬ ‫وﻟﻤﺎ‬ ‫وﺑﻜﺮاﻣﺔ اﻟﻔﺮد وﻗﺪرﻩ وﲟﺎ ﻠﺮﺟﺎل واﻟ ﺴﺎء‬ ‫اﻻﺟ‬ ‫ﺣﻘﻮق ﻣ ﺴﺎوﯾﺔ وﺣﺰﻣﺖ ٔ ﻣﺮﻫﺎ‬ ‫ﻗﺪﻣﺎ ً و ٔ ن ﻓﻊ ﻣﺴ ﻮى اﳊﯿﺎة ﰲ ﺟﻮ‬ ‫‪44‬‬ ‫ﺟﺪﯾﺪ ا ٕﳝﺎﳖﺎ ﲝﻘﻮق اﻻ ٕ ﺴﺎن ا‬ ‫اﳊﺮﯾﺔ ٔ ﻓﺴﺢ‪.‬‬ ‫ٔ ﺳﺎﺳ ﺔ‬ ‫ٔ ن ﺗﺪﻓﻊ ﻟﺮﰶ‬ ‫‪4‬‬ ‫اﻟﺪول ا‬ ‫وﻟﻤﺎ ﰷﻧﺖ‬ ‫اﻻ ٕ ﺴﺎن واﳊﺮ ت ا‬ ‫ﺗﻌﻬﺪت ﻟﺘﻌﺎون ﻣﻊ ا‬ ‫ٔ ﻋﻀﺎء ﻗﺪ‬ ‫ٔ ﱈ اﻟﻤﺘﺤﺪة‬ ‫ﲷﺎن اﻃﺮاد ﻣﺮاﻋﺎة ﺣﻘﻮق‬ ‫ٔ ﺳﺎﺳ ﺔ واﺣﱰاﻣﻬﺎ‪.‬‬ ‫ﰷندراك اﻟﻌﺎم ﻟﻬﺬﻩ اﳊﻘﻮق واﳊﺮ ت ا‬ ‫وﻟﻤﺎ ﻼ ٕ‬ ‫ٔ ﳘﯿﺔ اﻟﻜﱪى ﻠﻮﻓﺎء اﻟﺘﺎم ﲠﺬا اﻟﺘﻌﻬﺪ‪.‬‬ ‫ﻓﺎ ٕن اﳉﻤﻌﯿﺔ اﻟﻌﺎﻣﺔ ﺗﻨﺎدي ﲠﺬا اﻻ ٕﻋﻼن اﻟﻌﺎﻟﻤﻲ ﳊﻘﻮق اﻻ ٕ ﺴﺎن ٔ ﻧﻪ اﻟﻤﺴ ﻮى اﻟﻤﺸﱰك اﻟﺬي ﯾ ﺒ‬ ‫ٔ ن ﺴﳤﺪﻓﻪ ﰷﻓﺔ اﻟﺸﻌﻮب وا‬ ‫ٔﱈ‬ ‫ﺴ ﰻ ﻓﺮد وﻫﯿﺌﺔ ﰲ اﻟﻤﺠﺘﻤﻊ‪ ،‬واﺿﻌﲔ‬ ‫اﻻ ٕﻋﻼن ﻧﺼﺐ ٔ ﻋﯿﳯﻢ‪ ،‬ا ٕ ﱃ ﻃﯿﺪ اﺣﱰام ﻫﺬﻩ اﳊﻘﻮق واﳊﺮ ت‬ ‫اﻟﺪوام ﻫﺬا‬ ‫ﻃﺮﯾﻖ اﻟﺘﻌﻠﲓ واﻟﱰﺑﯿﺔ واﲣﺎذ‬ ‫ا ٕﺟﺮاءات ﻣﻄﺮدة‪ ،‬ﻗﻮﻣﯿﺔ وﻋﺎﻟﻤﯿﺔ‪ ،‬ﻟﻀﻤﺎن اﻻﻋﱰاف ﲠﺎ وﻣﺮاﻋﺎﲥﺎ ﺑﺼﻮرة ﻋﺎﻟﻤﯿﺔ ﻓﻌﺎﻟﺔ ﺑﲔ اﻟﺪول‬ ‫ٔ ﻋﻀﺎء ذاﲥﺎ وﺷﻌﻮب اﻟﺒﻘﺎع اﳋﺎﺿﻌﺔ ﻟﺴﻠﻄﺎﳖﺎ‪.‬‬ ‫ا‬ ‫‪.‬اﻟﻤﺎدة ‪1‬‬ ‫ﻟﺪ ﲨﯿﻊ‪‬اﻟﻨﺎس ٔ ﺣﺮارا ً ﻣ ﺴﺎو ﰲ اﻟﻜﺮاﻣﺔ واﳊﻘﻮق‪ ،‬وﻗﺪ وﻫﺒﻮا ﻋﻘﻼ ً وﲷﲑا ً وﻋﻠﳱﻢ ٔ ن‬ ‫ﯾﻌﺎﻣﻞ ﺑﻌﻀﻬﻢ ﺑﻌﻀﺎ ً‬ ‫وح اﻻ ٕ ﺧﺎء‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪2‬‬ ‫ﻟﻮاردة ﰲ ﻫﺬا اﻻ ٕ ﻋﻼن‪ ،‬دون ٔ ي ﲤﯿﲒ‪،‬‬ ‫ﻟﲁ ا ٕ ﺴﺎن ﺣﻖ اﻟﺘﻤﺘﻊ ﺑﲀﻓﺔ اﳊﻘﻮق واﳊﺮ ت ا‬ ‫‪‬‬ ‫ﻌﻨﴫ ٔ و ا ﻠﻮن ٔ و اﳉ ﺲ ٔ و ا ﻠﻐﺔ ٔ و اﻟﺪ‬ ‫‪45‬‬ ‫ٔ و اﻟﺮ ٔ ي اﻟﺴ ﺎﳼ ٔ و ٔ ي ر ٔ ي ٓ ﺧﺮ‪ ٔ ،‬و‬ ‫ٔ و اﻟﱶوة ٔ و اﻟﻤﯿﻼد ٔ و ٔ ي وﺿﻊ ٓ ﺧﺮ‪ ،‬دون ٔ ﯾﺔ ﺗﻔﺮﻗﺔ ﺑﲔ اﻟﺮﺟﺎل‬ ‫ﻞ اﻟﻮﻃﲏ ٔ و اﻻﺟ‬ ‫ﲤﯿﲒ ٔ ٔيﺳﺎﺳﻪ اﻟﻮﺿﻊ اﻟﺴ ﺎﳼ ٔ و اﻟﻘﺎ ﱐ ٔ و اﻟﺪوﱄ‬ ‫وﻓﻀﻼ ﲻﺎ ﺗﻘﺪم ﻓﻠﻦ ﯾﻜﻮن ﻫﻨﺎك‬ ‫واﻟ ﺴﺎء‪.‬‬ ‫ﻟﺒﻠﺪ ٔ و اﻟﺒﻘﻌﺔ اﻟﱵ ﯾ‬ ‫ا ٕﻟﳱﺎ اﻟﻔﺮد ﺳﻮاء ﰷن ﻫﺬا اﻟﺒﻠﺪ ٔ و ﺗﻠﻚ اﻟﺒﻘﻌﺔ ﻣﺴ ﻘﻼ ٔ و ﲢﺖ اﻟﻮﺻﺎﯾﺔ ٔ و‬ ‫ﻏﲑ ﻣﺘﻤﺘﻊ ﳊﲂ اﻟﺬاﰐ ٔ و ﰷﻧﺖ ﺳ ﺎدﺗﻪ ﺧﺎﺿﻌﺔ‬ ‫ٔ ي ﻗﯿﺪ‬ ‫اﻟﻘﯿﻮد‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪3‬‬ ‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ اﳊﯿﺎة واﳊﺮﯾﺔ وﺳﻼﻣﺔ ﴯﺼﻪ‪.‬‬ ‫‪‬‬ ‫‪.‬اﻟﻤﺎدة ‪4‬‬ ‫‪‬ﻻﳚﻮز اﺳﱰﻗﺎق ٔ و اﺳ ﻌﺒﺎد ٔ ي ﴯﺺ‪ ،‬وﳛﻈﺮ اﻻﺳﱰﻗﺎق وﲡﺎرة اﻟﺮﻗﯿﻖ ﺑﲀﻓﺔ ٔ وﺿﺎﻋﻬﻤﺎ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪5‬‬ ‫ﻻﯾﻌﺮض ٔ ي ا ٕ ﺴﺎن ﻠﺘﻌﺬﯾﺐ وﻻ ﻠﻌﻘﻮ ت ٔ و اﻟﻤﻌﺎﻣﻼت اﻟﻘﺎﺳ ﺔ ٔ و اﻟﻮﺣﺸ ﺔ ٔ و اﳊﺎﻃﺔ‬ ‫‪‬‬ ‫ﻟﻜﺮاﻣﺔ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪6‬‬ ‫‪‬‬ ‫ﻟﲁ ا ٕ ﺴﺎن ٔ ﯾ وﺟﺪ اﳊﻖ ﰲ ٔ ن ﯾﻌﱰف ﺸﺨﺼﯿﺘﻪ اﻟﻘﺎ ﻧﯿﺔ‪.‬‬ ‫‪46‬‬ ‫‪.‬اﻟﻤﺎدة ‪7‬‬ ‫‪‬‬ ‫ﰻ اﻟﻨﺎس ﺳﻮاﺳ ﺔ ٔ ﻣﺎم اﻟﻘﺎ ن وﻟﻬﻢ اﳊﻖ ﰲ اﻟﺘﻤﺘﻊ ﲝﻤﺎﯾﺔ ﻣﺘﲀﻓﺌﺔ ﻋﻨﻪ دون ٔ ﯾﺔ ﺗﻔﺮﻗﺔ‪،‬‬ ‫ٔ ن ﻟﻬﻢ ﲨﯿﻌﺎ اﳊﻖ ﰲ ﲪﺎﯾﺔ ﻣ ﺴﺎوﯾﺔ ﺿﺪ ٔ ي ﲤﲒ ﳜﻞ ﲠﺬا اﻻ ٕ ﻋﻼن وﺿﺪ ٔ ي ﲢﺮﯾﺾ‬ ‫ﲤﯿﲒ‬ ‫ﻛﻬﺬا‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪8‬‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ٔ ن ﯾﻠﺠ ٔ ا ٕﱃ اﻟﻤﺤﺎﰼ اﻟﻮﻃﻨﯿﺔ ﻻ ٕ ﻧﺼﺎﻓﻪ‬ ‫‪‬‬ ‫ا‬ ‫ٔ ﲻﺎل ﻓﳱﺎ اﻋﺘﺪاء‬ ‫اﳊﻘﻮق‬ ‫ٔ ﺳﺎﺳ ﺔ اﻟﱵ ﳝﻨﺤﻬﺎ ﻟﻪ اﻟﻘﺎ ن‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪9‬‬ ‫ﻻ ﳚﻮز‪ ‬اﻟﻘﺒﺾ‬ ‫ٔ ي ا ٕ ﺴﺎن ٔ و ﲩﺰﻩ ٔ و ﻧﻔﯿﻪ ﺗﻌﺴﻔﺎ ً ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪10‬‬ ‫‪‬‬ ‫ﻟﲁ ا ٕ ﺴﺎن اﳊﻖ‪،‬‬ ‫ﻗﺪم اﻟﻤﺴﺎواة اﻟﺘﺎﻣﺔ ﻣﻊ ا‬ ‫ﻗﻀﯿﺘ ٔ ﻣﺎم ﳏﳬﺔ‬ ‫ٓ ﺧﺮ ‪ ،‬ﰲ ٔ ن ﺗﻨﻈﺮ ﻪ‬ ‫ﺴ ﻘﻠﺔ ﳞﺔ ﻧﻈﺮا ً ﻋﺎدﻻ ً ﻋﻠﻨﯿﺎ ً ﻠﻔﺼﻞ ﰲ ﺣﻘﻮﻗﻪ واﻟﱱاﻣﺎﺗﻪ و ٔ ﯾﺔ ﲥﻤﺔ ﺟﻨﺎﺋﯿﺔ ﺟﻪ ا ٕ ﻟﯿﻪ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪11‬‬ ‫ﻣﳤﻢ ﲜﺮﳝﺔ ﯾﻌﺘﱪ ﯾﺌﺎ ً ا ٕﱃ ٔ ن ﺗﺜ ﺖ ا ٕداﻧﺘﻪ ﻗﺎ‬ ‫ﰻ ﴯﺺ ) ‪( 1‬‬ ‫‪‬‬ ‫اﻟﻀﻤﺎ ت اﻟﴬورﯾﺔ ﻠﺪﻓﺎع ﻋﻨﻪ‪.‬‬ ‫‪47‬‬ ‫ً ﲟﺤﺎﳈﺔ ﻋﻠﻨﯿﺔ ﺗﺆ ﻟﻪ ﻓﳱﺎ‬ ‫ﴯﺺ ٔ داة ﲻﻞ ٔ و اﻻﻣﺘﻨﺎع‬ ‫) ‪2‬ﻻ(ﯾﺪان ٔ يﺟﺮاء‬ ‫‪‬‬ ‫ٔ داة ﲻﻞ ا ٕﻻ ا ٕذا ﰷن ذﻟﻚ ﯾﻌﺘﱪ‬ ‫ﺟﺮﻣﺎ ً وﻓﻘﺎ ً ﻠﻘﺎ ن اﻟﻮﻃﲏ ٔ و اﻟﺪوﱄ وﻗﺖ اﻻرﺗﲀب‪ ،‬ﻛﺬﻟﻚ ﻻ ﻗﻊ ﻋﻠﯿﻪ ﻋﻘﻮﺑﺔ ٔ ﺷﺪ‬ ‫ﺗﻠﻚ اﻟﱵ‬ ‫ﰷن ﳚﻮز ﻗﯿﻌﻬﺎ وﻗﺖ ارﺗﲀب اﳉﺮﳝﺔ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪12‬‬ ‫ﻣﺴﻜﻨو ﻣﺮاﺳﻼﺗﻪ ٔ و ﳊﻤﻼت‬ ‫ﻻ ‪‬ﯾﻌﺮض ٔ ﺣﺪ ﻟﺘﺪﺧﻞ ﺗﻌﺴ ﰲ ﺣﯿﺎﺗﻪ اﳋﺎﺻﺔ ٔ و ٔ ﴎﺗﻪ ٔ وﻪ ٔ‬ ‫ﴍﻓﻪ وﲰﻌﺘﻪ‪ ،‬وﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﲪﺎﯾﺔ اﻟﻘﺎ ن‬ ‫ﻣﺜﻞ ﻫﺬا اﻟﺘﺪﺧﻞ ٔ و ﺗﻠﻚ اﳊﻤﻼت‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪13‬‬ ‫‪‬‬ ‫) ‪( 1‬ﻟﲁ ﻓﺮد ﺣﺮﯾﺔ اﻟﺘﻨﻘﻞ واﺧﺘﯿﺎر ﳏﻞ ا ٕ ﻗﺎﻣﺘﻪ داﺧﻞ ﺣﺪود ﰻ دوﻟﺔ‪.‬‬ ‫‪‬‬ ‫ﻟﲁ ﻓﺮد ٔ ن ﯾﻐﺎدر ٔ ﯾﺔ ﺑﻼد ﲟﺎ ﰲ ذﻟﻚ ﺑﻠﺪﻩ ﳛﻖ ﻟﻪ اﻟﻌﻮدة ا ٕ ﻟﯿﻪ‪.‬‬ ‫ﳛﻖ) ‪( 2‬‬ ‫‪.‬اﻟﻤﺎدة ‪14‬‬ ‫ﻓﺮد اﳊﻖ ﰲ ) ٔ‪( 1‬ن ﯾﻠﺠ ٔ ا ٕﱃ ﺑﻼد ٔ ﺧﺮى ٔ و ﳛﺎول اﻻﻟﺘﺠﺎء ا ٕﻟﳱﺎ ﻫﺮ‬ ‫ﻟﲁ ‪‬‬ ‫‪‬‬ ‫ﺘﻔﻊ (ﲠﺬا اﳊﻖ‬ ‫ﻻﯾ )‪2‬‬ ‫ا‬ ‫ﻗﺪم ﻠﻤﺤﺎﳈﺔ ﰲ ﺟﺮاﰂ ﻏﲑ ﺳ ﺎﺳ ﺔ ٔ و‬ ‫ً‬ ‫اﻻﺿﻄﻬﺎد‪.‬‬ ‫ٔ ﲻﺎل ﺗﻨﺎﻗﺾ ٔ ﻏﺮاض‬ ‫ٔ ﱈ اﻟﻤﺘﺤﺪة وﻣﺒﺎدﲛﺎ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪15‬‬ ‫) ‪ ( 1‬ﻟﲁ ﻓﺮد ﺣﻖ اﻟﺘﻤﺘﻊ ﲜ ﺴ ﺔ ﻣﺎ‪.‬‬ ‫‪‬‬ ‫‪48‬‬ ‫‪‬‬ ‫ﺣﺮﻣﺎن ﴯﺺ‬ ‫ﳚﻮز ‪( 2‬‬ ‫ﻻ )‬ ‫ﺟ ﺴ ﺘﻪ ﺗﻌﺴﻔﺎ ً‬ ‫ٔ و ا ٕﻧﲀر ﺣﻘﻪ ﰲ ﺗﻐﯿﲑﻫﺎ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪16‬‬ ‫واﻟﻤﺮ( ٔ ة ﻣﱴ ﺑﻠﻐﺎ ﺳﻦ اﻟﺰواج ﺣﻖ اﻟﱱوج وﺗ ٔ ﺳ ﺲ ٔ ﴎة دون ٔ ي ﻗﯿﺪ ﺴ ﺐ‬ ‫‪ ‬ﻠﺮﺟﻞ ) ‪1‬‬ ‫اﳉ ﺲ ٔ و اﻟﺪ ‪ ،‬وﻟﻬﻤﺎ ﺣﻘﻮق ﻣ ﺴﺎوﯾﺔ ﻋﻨﺪ اﻟﺰواج و ٔ ﺛﻨﺎء ﻗﯿﺎﻣﻪ وﻋﻨﺪ اﳓﻼﻟﻪ‪.‬‬ ‫ﴇ اﻟﻄﺮﻓﲔ اﻟﺮاﻏﺒﲔ ﰲ اﻟﺰواج رﴇ ﰷﻣﻼ ً ﻻ ا ٕﻛﺮاﻩ ﻓﯿﻪ‪.‬‬ ‫) ‪( 2‬ﻻ ﯾﱪم ﻋﻘﺪ اﻟﺰواج ا ٕﻻ‬ ‫‪‬‬ ‫ا ) ٔ‪( 3‬ﴎة ﱔ اﻟﻮﺣﺪة اﻟﻄﺒﯿﻌﯿﺔ ا‬ ‫‪‬‬ ‫ٔ ﺳﺎﺳ ﺔ ﻠﻤﺠﺘﻤﻊ وﻟﻬﺎ ﺣﻖ اﻟﺘﻤﺘﻊ ﲝﻤﺎﯾﺔ اﻟﻤﺠﺘﻤﻊ‬ ‫واﻟﺪوﻟﺔ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪17‬‬ ‫ﻟﲁ ﴯﺺ ﺣﻖ اﻟﺘﻤﻠﻚ ﲟﻔﺮدﻩ ٔ و ﻻﺷﱰاك ﻣﻊ ﻏﲑﻩ‪.‬‬ ‫)‪(1‬‬ ‫‪‬‬ ‫ﳚﻮز‪( 2‬ﲡﺮﯾﺪ ٔ ﺣﺪ‬ ‫ﻻ )‬ ‫‪‬‬ ‫ﻣﻠﻜﻪ ﺗﻌﺴﻔﺎ ً ‪.‬‬ ‫ٕﱃ ٔ‬ ‫ا^‬ ‫اﻟﺼﻔﺤﺔ‬ ‫‪.‬اﻟﻤﺎدة ‪18‬‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻟﺘﻔﻜﲑ واﻟﻀﻤﲑ واﻟﺪ ‪ ،‬و ﺸﻤﻞ ﻫﺬا اﳊﻖ ﺣﺮﯾﺔ ﺗﻐﯿﲑ د ﻧﺘﻪ ٔ و‬ ‫‪‬‬ ‫ﻋﻘﯿﺪﺗﻪ‪ ،‬وﺣﺮﯾﺔ اﻻ ٕﻋﺮاب ﻋﳯﻤﺎ ﻟﺘﻌﻠﲓ واﻟﻤﻤﺎرﺳﺔ وا ٕ ﻗﺎﻣﺔ اﻟﺸﻌﺎ ﺮ وﻣﺮاﻋﺎﲥﺎ ﺳﻮاء ٔ ﰷن ذﻟﻚ ﴎا ً‬ ‫ٔ م ﻣﻊ اﳉﻤﺎﻋﺔ‪.‬‬ ‫‪49‬‬ ‫‪.‬اﻟﻤﺎدة ‪19‬‬ ‫‪‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻟﺮ ٔ ي واﻟﺘﻌﺒﲑ‪ ،‬و ﺸﻤﻞ ﻫﺬا اﳊﻖ ﺣﺮﯾﺔ اﻋﺘﻨﺎق ا‬ ‫ﺗﺪﺧﻞ‪ ،‬واﺳ ﻘﺎء ا‬ ‫ٔ ﻧﺒﺎء وا‬ ‫ٓ راء دون ٔ ي‬ ‫ٔ ﻓﲀر وﺗﻠﻘﳱﺎ وا ٕذاﻋﳤﺎ ﺑ ٔ ﯾﺔ وﺳ ﻠﺔ ﰷﻧﺖ دون ﺗﻘﯿﺪ ﳊﺪود‬ ‫اﳉﻐﺮاﻓﯿﺔ‪.‬‬ ‫اﻟﺼﻔﺤﺔ‬ ‫ٕﱃ ٔ‬ ‫ا^‬ ‫‪.‬اﻟﻤﺎدة ‪20‬‬ ‫) ‪ ( 1‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﺣﺮﯾﺔ اﻻﺷﱰاك ﰲ اﳉﻤﻌﯿﺎت واﳉﻤﺎﻋﺎت اﻟﺴﻠﻤﯿﺔ‪.‬‬ ‫‪‬‬ ‫)ﻻ ‪( 2‬ﳚﻮز ا ٕرﻏﺎم ٔ ﺣﺪ‬ ‫‪‬‬ ‫اﻻﻧﻀﻤﺎم ا ٕ ﱃ ﲨﻌﯿﺔ ﻣﺎ‪.‬‬ ‫اﻟﺼﻔﺤﺔ‬ ‫ٕﱃ ٔ‬ ‫ا^‬ ‫‪.‬اﻟﻤﺎدة ‪21‬‬ ‫اﳊﻖ ﰲ اﻻﺷﱰاك ﰲ ا ٕدارة اﻟﺸﺆون اﻟﻌﺎﻣﺔ ﻟﺒﻼدﻩ ا ٕﻣﺎ ﻣﺒﺎﴍة وا ٕﻣﺎ اﺳﻄﺔ‬ ‫) ‪ ( 1‬ﻟﲁ ﻓﺮد‬ ‫‪‬‬ ‫ﳑﺜﻠﲔ ﳜﺘﺎرون اﺧﺘﯿﺎرا ً ﺣﺮا ً ‪.‬‬ ‫) ‪ ( 2‬ﻟﲁ ﴯﺺ ﻧﻔﺲ اﳊﻖ اﻟﺬي ﻟﻐﲑﻩ ﰲ ﺗﻘﻠﺪ اﻟﻮﻇﺎﺋﻒ اﻟﻌﺎﻣﺔ ﰲ اﻟﺒﻼد‪.‬‬ ‫‪‬‬ ‫) ‪3‬ا (ٕن ا ٕرادة اﻟﺸﻌﺐ ﱔ ﻣﺼﺪر ﺳﻠﻄﺔ اﳊﻜﻮﻣﺔ‪ ،‬وﯾﻌﱪ‬ ‫‪‬‬ ‫دورﯾﺔ ﲡ ٔ ﺳﺎس اﻻﻗﱰاع اﻟﴪي و‬ ‫ﺮي‬ ‫ﯾﻀﻤﻦ ﺣﺮﯾﺔ اﻟﺘﺼﻮﯾﺖ‪.‬‬ ‫‪50‬‬ ‫ﻫﺬﻩ اﻻ ٕ رادة ﻧﺘﺨﺎ ت ﳞﺔ‬ ‫ﻗﺪم اﻟﻤﺴﺎواة ﺑﲔ اﳉﻤﯿﻊ ٔ و ﺣﺴﺐ ٔ ي ا ٕﺟﺮاء ﳑﺎﺛﻞ‬ ‫‪.‬اﻟﻤﺎدة ‪22‬‬ ‫‪‬‬ ‫ﻟﲁ ﴯﺺ ﺑﺼﻔﺘﻪ ﻋﻀﻮا ً ﰲ اﻟﻤﺠﺘﻤﻊ اﳊﻖ ﰲ اﻟﻀﻤﺎﻧﺔ اﻻﺟ ﻋﯿﺔ وﰲ ٔ ن ﲢﻘﻖ ﺳﺎﻃﺔ اﻟﻤﺠﻬﻮد‬ ‫اﻟﻘﻮﱊ واﻟﺘﻌﺎون اﻟﺪوﱄ وﲟﺎ ﯾﺘﻔﻖ وﻧﻈﻢ ﰻ دوﻟﺔ وﻣﻮاردﻫﺎ اﳊﻘﻮق اﻻﻗﺘﺼﺎدﯾﺔ واﻻﺟ ﻋﯿﺔ‬ ‫واﻟﱰ ﯾﺔ اﻟﱵ ﻻﻏﲎ ﻋﳯﺎ ﻟﻜﺮاﻣﺘﻪ و ﻠﻨﻤﻮ اﳊﺮ ﻟﺸﺨﺼﯿﺘﻪ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪23‬‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ اﻟﻌﻤﻞ‪ ،‬وﻟﻪ ﺣﺮﯾﺔ اﺧﺘﯿﺎرﻩ ﴩوط ﻋﺎدﻟﺔ ﻣﺮﺿﯿﺔ‬ ‫)‪(1‬‬ ‫‪‬‬ ‫ٔ ن ﻟﻪ ﺣﻖ اﳊﻤﺎﯾﺔ‬ ‫اﻟﺒﻄﺎﻟﺔ‪.‬‬ ‫ﻟﲁ (ﻓﺮد دون ٔ ي ﲤﯿﲒ اﳊﻖ ﰲ ٔ ﺟﺮ ﻣ ﺴﺎو ﻠﻌﻤﻞ‪.‬‬ ‫)‪2‬‬ ‫‪‬‬ ‫ﯾﻘﻮماﳊﻖ ﰲ ٔ ﺟﺮ ﻋﺎدل ﻣﺮض ﯾﻜﻔﻞ ﻟﻪ و‬ ‫) ‪ ( 3‬ﻟﲁ ﻓﺮدﺑﻌﻤﻞ‬ ‫‪‬‬ ‫ٔ ﴎﺗﻪ ﻋ ﺸﺔ ﻻﺋﻘﺔ ﺑﻜﺮاﻣﺔ‬ ‫اﻻ ٕ ﺴﺎن ﺗﻀﺎف ا ٕ ﻟﯿﻪ‪ ،‬ﻋﻨﺪ ا ﻠﺰوم‪ ،‬وﺳﺎﺋﻞ ٔ ﺧﺮى ﻠﺤﻤﺎﯾﺔ اﻻﺟ ﻋﯿﺔ‪.‬‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ٔ ن ﯾ ﺸﺊ وﯾﻨﻀﻢ ا ٕ ﱃ ﻧﻘﺎ ت ﲪﺎﯾﺔ ﻟﻤﺼﻠﺤﺘﻪ‬ ‫)‪(4‬‬ ‫‪‬‬ ‫‪.‬اﻟﻤﺎدة ‪24‬‬ ‫ﻟﲁ ﴯﺺ اﳊﻖ ﰲ اﻟﺮاﺣﺔ‪ ،‬وﰲ ٔ وﻗﺎت اﻟﻔﺮاغ‪ ،‬وﻻﺳ ﻤﺎ ﰲ ﲢﺪﯾﺪ ﻣﻌﻘﻮل ﻟﺴﺎﻋﺎت اﻟﻌﻤﻞ وﰲ‬ ‫‪‬‬ ‫ﻋﻄﻼت دورﯾﺔ ﺑ ٔ ﺟﺮ‪.‬‬ ‫‪51‬‬ ‫‪.‬اﻟﻤﺎدة ‪25‬‬ ‫) ‪ ( 1‬ﻟﲁ ﴯﺺ اﳊﻖ ﰲ ﻣﺴ ﻮى‬ ‫‪‬‬ ‫و‬ ‫اﻟﻤﻌ ﺸﺔ ﰷف ﻠﻤﺤﺎﻓﻈﺔ‬ ‫اﻟﺼﺤﺔ واﻟﺮﻓﺎﻫﯿﺔ ﻟﻪ‬ ‫ٔ ﴎﺗﻪ‪ ،‬وﯾﺘﻀﻤﻦ ذﻟﻚ اﻟﺘﻐﺬﯾﺔ واﻟﻤﻠ ﺲ واﻟﻤﺴﻜﻦ واﻟﻌﻨﺎﯾﺔ اﻟﻄﺒﯿﺔ وﻛﺬﻟﻚ اﳋﺪﻣﺎت‬ ‫اﻻﺟ ﻋﯿﺔ ا ﻼزﻣﺔ‪ ،‬وﻟﻪ اﳊﻖ ﰲ ﺗ ٔ ﻣﲔ ﻣﻌ ﺸ ﻪ ﰲ ﺣﺎﻻت اﻟﺒﻄﺎﻟﺔ واﻟﻤﺮض واﻟﻌﺠﺰ واﻟﱰﻣﻞ‬ ‫ﻓﻘﺪان وﺳﺎﺋﻞ اﻟﻌ ﺶ ﻧ ﯿﺠﺔ ﻟﻈﺮوف ﺧﺎرﺟﺔ‬ ‫واﻟﺸ ﺨﻮﺧﺔ وﻏﲑ ذﻟﻚ‬ ‫ا ٕرادﺗﻪ‪.‬‬ ‫) ٔ‪( 2‬ﻣﻮﻣﺔ واﻟﻄﻔﻮﻟﺔ اﳊﻖ ﰲ ﻣﺴﺎﻋﺪة ورﻋﺎﯾﺔ ﺧﺎﺻﺘﲔ‪ ،‬وﯾﻨﻌﻢ ﰻ ا‬ ‫‪‬‬ ‫اﻻﺟ ﻋﯿﺔ ﺳﻮاء ٔ ﰷﻧﺖ وﻻدﲥﻢ ﲡﺔ‬ ‫ر طﴍ‬ ‫ٔ ﻃﻔﺎل ﺑﻨﻔﺲ اﳊﻤﺎﯾﺔ‬ ‫ٔ و ﺑﻄﺮﯾﻘﺔ ﻏﲑ ﴍﻋﯿﺔ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪26‬‬ ‫‪‬‬ ‫ﴯﺺ اﳊﻖ ﰲ اﻟﺘﻌﻠﻢ‪ ،‬وﳚﺐ ٔ ن ﯾﻜﻮن اﻟﺘﻌﻠﲓ ﰲ ﻣﺮاﺣﻠﻪ ا‬ ‫ﻟﲁ ) ‪( 1‬‬ ‫ﻗﻞ ﻟﻤﺠﺎن‪ ،‬و ٔ ن ﯾﻜﻮن اﻟﺘﻌﻠﲓ ا‬ ‫اﻟﻘﺒﻮل ﻠﺘﻌﻠﲓ اﻟﻌﺎﱄ‬ ‫ٔ وﱄ ا ٕﻟﺰاﻣﯿﺎ ً وﯾ ﺒ‬ ‫ٔ وﱃ وا‬ ‫ٔ ﺳﺎﺳ ﺔ‬ ‫ٔ ن ﯾﻌﻤﻢ اﻟﺘﻌﻠﲓ اﻟﻔﲏ واﻟﻤﻬﲏ‪ ،‬و ٔ ن ﯾ ﴪ‬ ‫ﻗﺪم اﻟﻤﺴﺎواة اﻟﺘﺎﻣﺔ ﻠﺠﻤﯿﻊ و‬ ‫ٔ ﺳﺎس اﻟﻜﻔﺎءة‪.‬‬ ‫‪ ‬ﳚﺐ ٔ ) ‪2‬ن (ﲥﺪف اﻟﱰﺑﯿﺔ ا ٕﱃ ا ٕ ﳕﺎء ﴯﺼﯿﺔ اﻻ ٕ ﺴﺎن ا ٕ ﳕﺎء ﰷﻣﻼ ً ‪ ،‬وا ٕﱃ ﺗﻌﺰ اﺣﱰام اﻻ ٕ ﺴﺎن‬ ‫واﳊﺮ ت ا‬ ‫ٔ ﺳﺎﺳ ﺔ وﺗﻨﻤﯿﺔ اﻟﺘﻔﺎﱒ واﻟ ﺴﺎ واﻟﺼﺪاﻗﺔ ﺑﲔ ﲨﯿﻊ اﻟﺸﻌﻮب واﳉﻤﺎﻋﺎت اﻟﻌﻨﴫﯾﺔ‬ ‫ٔ و اﻟﺪﯾ ﯿﺔ‪ ،‬وا ٕﱃ ز دة ﳎﻬﻮد ا‬ ‫) ٓ‪ ( 3‬ء اﳊﻖ ا‬ ‫‪‬‬ ‫‪52‬‬ ‫ٔ ﱈ اﻟﻤﺘﺤﺪة ﳊﻔﻆ اﻟﺴﻼم‪.‬‬ ‫ﺧﺘﯿﺎر ع ﺑﯿﺔ ٔ وﻻدﱒ‪.‬‬ ‫ٔ ول ﰲ ا‬ ‫‪.‬اﻟﻤﺎدة ‪27‬‬ ‫اﳊﻖ ﰲ ٔ ن ﺸﱰك اﺷﱰاﰷ ً ﺣﺮا ً ﰲ ﺣﯿﺎة اﻟﻤﺠﺘﻤﻊ اﻟﺜﻘﺎﰲ وﰲ اﻻﺳ ﻤﺘﺎع ﻟﻔﻨﻮن‬ ‫‪‬ﻟﲁ ﻓﺮد ) ‪( 1‬‬ ‫واﻟﻤﺴﺎﳘﺔ ﰲ اﻟﺘﻘﺪم اﻟﻌﻠﻤﻲ واﻻﺳ ﻔﺎدة‬ ‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ ﲪﺎﯾﺔ اﻟﻤﺼﺎﱀ ا‬ ‫)‪(2‬‬ ‫‪‬‬ ‫ﻧﺘﺎﲗﻪ‪.‬‬ ‫ٔ دﺑﯿﺔ واﻟﻤﺎدﯾﺔ اﻟﻤﱰﺗﺒﺔ‬ ‫ٔ دﰊ‬ ‫اﻟﻌﻠﻤﻲ‬ ‫ا ٕﻧﺘﺎﺟﻪ ٔ و ا‬ ‫ٔ و اﻟﻔﲏ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪28‬‬ ‫ﻟﲁ ﻓﺮد اﳊﻖ ﰲ اﻟﺘﻤﺘﻊ ﺑﻨﻈﺎم اﺟ‬ ‫‪‬‬ ‫ﻋﻠﳱﺎ ﰲ ﻫﺬا اﻻ ٕ ﻋﻼن ﲢﻘﻘﺎ ً‬ ‫دوﱄ ﺗﺘﺤﻘﻖ ﲟﻘﺘﻀﺎﻩ اﳊﻘﻮق واﳊﺮ ت اﻟﻤﻨﺼﻮص‬ ‫ﻣﺎ‪.‬‬ ‫‪.‬اﻟﻤﺎدة ‪29‬‬ ‫ﻓﺮد( واﺟﺒﺎت ﳓﻮ اﻟﻤﺠﺘﻤﻊ اﻟﺬي ﯾﺘﺎح ﻓﯿﻪ وﺣﺪﻩ ﻟﺸﺨﺼﯿﺘﻪ ٔ ن ﺗﻨﻤﻮ ﳕﻮا ً ﺣﺮا ُ‬ ‫ﰻ )‪1‬‬ ‫‪‬‬ ‫ﰷﻣﻼ ً ‪.‬‬ ‫) ‪ ( 2‬ﳜﻀﻊ اﻟﻔﺮد ﰲ ﳑﺎرﺳﺔ ﺣﻘﻮﻗﻪ وﺣﺮ ﺗﻪ ﻟﺘﻠﻚ اﻟﻘﯿﻮد اﻟﱵ ﯾﻘﺮرﻫﺎ اﻟﻘﺎ ن ﻓﻘﻂ‪ ،‬ﻟﻀﻤﺎن‬ ‫‪‬‬ ‫اﻻﻋﱰاف ﲝﻘﻮق اﻟﻐﲑ وﺣﺮ ﺗﻪ واﺣﱰاﻣﻬﺎ وﻟﺘﺤﻘﯿﻖ اﻟﻤﻘﺘﻀﯿﺎت اﻟﻌﺎدﻟﺔ ﻠﻨﻈﺎم اﻟﻌﺎم واﻟﻤﺼﻠﺤﺔ‬ ‫اﻟﻌﺎﻣﺔ وا‬ ‫ٔ ﺧﻼق ﰲ ﳎﺘﻤﻊ دﳝﻘﺮا ‪.‬‬ ‫ﯾﺼﺢ ﲝﺎل‬ ‫ﻻ )‪(3‬‬ ‫‪‬‬ ‫اﻟﻤﺘﺤﺪة وﻣﺒﺎدﲛﺎ‪.‬‬ ‫‪53‬‬ ‫ا‬ ‫ﻣﻊ ٔ ﻏﺮاض ا‬ ‫ﻗﺾ ﻨﺎ‬ ‫ٔ ﺣﻮال ٔ ن ﲤﺎرس ﻫﺬﻩ اﳊﻘﻮق ﳑﺎرﺳﺔ ﺗ‬ ‫ٔﱈ‬ PREAMBLE 5 Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and 30 ‫اﻟﻤﺎدة‬. ‫ٔ ﻧﻪ ﳜﻮل ﻟﺪوﻟﺔ ٔ و ﲨﺎﻋﺔ ٔ و ﻓﺮد ٔ ي ﺣﻖ ﰲ اﻟﻘﯿﺎم‬ ‫ﻫﺬا اﻻ ٕﻋﻼن ﻧﺺ ﳚﻮز ﺗ ٔ وﯾﻠﻪ‬‫ﻟ ﺲ ﰲ‬ .‫ﺑ ﺸﺎط ٔ و ﺗ ٔ دﯾﺔ ﲻﻞ ﳞﺪف ا ٕﱃ ﻫﺪم اﳊﻘﻮق واﳊﺮ ت اﻟﻮاردة ﻓﯿﻪ‬ 5 <http://www.un.org/ar/documents/udhr/> visited on 3 June 2012. 54 freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, 55 Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these 56 rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction. Article 1.  All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article 2.  Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, 57 language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. Article 3.  Everyone has the right to life, liberty and security of person. Article 4.  No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. 58 Article 5.  No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 6.  Everyone has the right to recognition everywhere as a person before the law. Article 7.  All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 59 Article 8.  Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9.  No one shall be subjected to arbitrary arrest, detention or exile. Article 10.  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 60 Article 11.  (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed. Article 12.  No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor 61 to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 13.   (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 14.   (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or 62 from acts contrary to the purposes and principles of the United Nations. Article 15.   (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Article 16.   (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. 63  (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Article 17.   (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. Article 18.  Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in 64 teaching, practice, worship and observance. Article 19.  Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20.   (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association. 65 Article 21.    (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Article 22.  Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation 66 and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. Article 23.    (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if 67  necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. Article 24.  Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 25.  (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, 68  widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. Article 26.   (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human 69  personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (3) Parents have a prior right to choose the kind of education that shall be given to their children. Article 27.   (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, 70 literary or artistic production of which he is the author. Article 28.  Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. Article 29.   (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the 71  just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. Article 30.  Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein. 72 CAIRO DECLARATION ON HUMAN RIGHTS IN ISLAM6 The Nineteenth Islamic Conference of Foreign Ministers (Session of Peace, Interdependence and Development), held in Cairo, Arab Republic of Egypt, from 9-14 Muharram 1411H (31 July to 5 August 1990), 6 Aug. 5, 1990, U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. Doc. A/CONF.157/PC/62/Add.18 (1993) [English translation]. http://www1.umn.edu/humanrts/instree/cairodeclaration.html See also <http://www.unhcr.org/refworld/publisher,ARAB,,,3ae6b3822c ,0.html> visited 3 June 2012. 73 Keenly aware of the place of mankind in Islam as vicegerent of Allah on Earth; Recognizing the importance of issuing a Document on Human Rights in Islam that will serve as a guide for Member states in all aspects of life; Having examined the stages through which the preparation of this draft Document has so far, passed and the relevant report of the Secretary General; Having examined the Report of the Meeting of the Committee of Legal Experts held in Tehran from 26 to 28 December, 1989; Agrees to issue the Cairo Declaration on Human Rights in Islam that will serve as a general guidance for Member States in the Field of human rights. Reaffirming the civilizing and historical role of the Islamic Ummah which Allah made as 74 the best community and which gave humanity a universal and well-balanced civilization, in which harmony is established between hereunder and the hereafter, knowledge is combined with faith, and to fulfill the expectations from this community to guide all humanity which is confused because of different and conflicting beliefs and ideologies and to provide solutions for all chronic problems of this materialistic civilization. In contribution to the efforts of mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic Shari'ah. Convinced that mankind which has reached an advanced stage in materialistic science is still, and shall remain, in dire need of faith 75 to support its civilization as well as a self motivating force to guard its rights; Believing that fundamental rights and freedoms according to Islam are an integral part of the Islamic religion and that no one shall have the right as a matter of principle to abolish them either in whole or in part or to violate or ignore them in as much as they are binding divine commands, which are contained in the Revealed Books of Allah and which were sent through the last of His Prophets to complete the preceding divine messages and that safeguarding those fundamental rights and freedoms is an act of worship whereas the neglect or violation thereof is an abominable sin, and that the safeguarding of those fundamental rights and freedom is an individual responsibility of every person and a collective responsibility of the entire Ummah; 76 Do hereby and on the basis of the abovementioned principles declare as follows: ARTICLE 1: (a) All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. The true religion is the guarantee for enhancing such dignity along the path to human integrity. (b) All human beings are Allah's subjects, and the most loved by Him are those who are most beneficial to His subjects, and no one has superiority over another except on the basis of piety and good deeds. 77 ARTICLE 2: (a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to safeguard this right against any violation, and it is prohibited to take away life except for a shari'ah prescribed reason. (b) It is forbidden to resort to any means which could result in the genocidal annihilation of mankind. (c) The preservation of human life throughout the term of time willed by Allah is a duty prescribed by Shari'ah. (d) Safety from bodily harm is a guaranteed right. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shari'ah-prescribed reason. 78 ARTICLE 3: (a) In the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as old men, women and children. The wounded and the sick shall have the right to medical treatment; and prisoners of war shall have the right to be fed, sheltered and clothed. It is prohibited to mutilate or dismember dead bodies. It is required to exchange prisoners of war and to arrange visits or reunions of families separated by circumstances of war. (b) It is prohibited to cut down trees, to destroy crops or livestock, to destroy the enemy's civilian buildings and installations by shelling, blasting or any other means. ARTICLE 4: 79 Every human being is entitled to human sanctity and the protection of one's good name and honour during one's life and after one's death. The state and the society shall protect one's body and burial place from desecration. ARTICLE 5: (a) The family is the foundation of society, and marriage is the basis of making a family. Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from exercising this right. (b) The society and the State shall remove all obstacles to marriage and facilitate it, and shall protect the family and safeguard its welfare. 80 ARTICLE 6: (a) Woman is equal to man in human dignity, and has her own rights to enjoy as well as duties to perform, and has her own civil entity and financial independence, and the right to retain her name and lineage. (b) The husband is responsible for the maintenance and welfare of the family. ARTICLE 7: (a) As of the moment of birth, every child has rights due from the parents, the society and the state to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be safeguarded and accorded special care. 81 (b) Parents and those in such like capacity have the right to choose the type of education they desire for their children, provided they take into consideration the interest and future of the children in accordance with ethical values and the principles of the Shari'ah. (c) Both parents are entitled to certain rights from their children, and relatives are entitled to rights from their kin, in accordance with the tenets of the shari'ah. ARTCLE 8: Every human being has the right to enjoy a legitimate eligibility with all its prerogatives and obligations in case such eligibility is lost or impaired, the person shall have the right to be represented by his/her guardian. ARTICLE 9: 82 (a) The seeking of knowledge is an obligation and provision of education is the duty of the society and the State. The State shall ensure the availability of ways and means to acquire education and shall guarantee its diversity in the interest of the society so as to enable man to be acquainted with the religion of Islam and uncover the secrets of the Universe for the benefit of mankind. (b) Every human being has a right to receive both religious and worldly education from the various institutions of teaching, education and guidance, including the family, the school, the university, the media, etc., and in such an integrated and balanced manner that would develop human personality, strengthen man's faith in Allah and promote man's respect to and defence of both rights and obligations. 83 ARTICLE 10: Islam is the religion of true unspoiled nature. It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism. ARTICLE 11: (a) Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to Allah the Almighty. (b) Colonialism of all types being one of the most evil forms of enslavement is totally prohibited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all 84 States peoples to support the struggle of colonized peoples for the liquidation of all forms of and occupation, and all States and peoples have the right to preserve their independent identity and econtrol over their wealth and natural resources. ARTICLE 12: Every man shall have the right, within the framework of the Shari'ah, to free movement and to select his place of residence whether within or outside his country and if persecuted, is entitled to seek asylum in another country. The country of refuge shall be obliged to provide protection to the asylum-seeker until his safety has been attained, unless asylum is motivated by committing an act regarded by the Shari'ah as a crime. 85 ARTICLE 13: Work is a right guaranteed by the State and the Society for each person with capability to work. Everyone shall be free to choose the work that suits him best and which serves his interests as well as those of the society. The employee shall have the right to enjoy safety and security as well as all other social guarantees. He may not be assigned work beyond his capacity nor shall he be subjected to compulsion or exploited or harmed in any way. He shall be entitled without any discrimination between males and females - to fair wages for his work without delay, as well as to the holidays allowances and promotions which he deserves. On his part, he shall be required to be dedicated and meticulous in his work. Should workers and employers disagree on 86 any matter, the State shall intervene to settle the dispute and have the grievances redressed, the rights confirmed and justice enforced without bias. ARTICLE 14: Everyone shall have the right to earn a legitimate living without monopolization, deceit or causing harm to oneself or to others. Usury (riba) is explicitly prohibited. ARTICLE 15: (a) Everyone shall have the right to own property acquired in a legitimate way, and shall be entitled to the rights of ownership without prejudice to oneself, others or the society in general. Expropriation is not permissible except for requirements of 87 public interest and upon payment of prompt and fair compensation. (b) Confiscation and seizure of property is prohibited except for a necessity dictated by law. ARTICLE 16: Everyone shall have the right to enjoy the fruits of his scientific, literary, artistic or technical labour of which he is the author; and he shall have the right to the protection of his moral and material interests stemming therefrom, provided it is not contrary to the principles of the Shari'ah. ARTICLE 17: 88 (a) Everyone shall have the right to live in a clean environment, away from vice and moral corruption, that would favour a healthy ethical development of his person and it is incumbent upon the State and society in general to afford that right. (b) Everyone shall have the right to medical and social care, and to all public amenities provided by society and the State within the limits of their available resources. (c) The States shall ensure the right of the individual to a decent living that may enable him to meet his requirements and those of his dependents, including food, clothing, housing, education, medical care and all other basic needs. ARTICLE 18: 89 (a) Everyone shall have the right to live in security for himself, his religion, his dependents, his honour and his property. (b) Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his relationships. It is not permitted to spy on him, to place him under surveillance or to besmirch his good name. The State shall protect him from arbitrary interference. (c) A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted. ARTICLE 19: 90 (a) All individuals are equal before the law, without distinction between the ruler and the ruled. (b) The right to resort to justice is guaranteed to everyone. (c) Liability is in essence personal. (d) There shall be no crime or punishment except as provided for in the Shari'ah. (e) A defendant is innocent until his guilt is proven in a fast trial in which he shall be given all the guarantees of defence. ARTICLE 20: It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of 91 maltreatment, cruelty or indignity. Nor is it permitted to subject an individual to medical or scientific experiments without hisconsent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions. ARTICLE 21: Taking hostages under any form or for any purpose is expressly forbidden. ARTICLE 22: (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah. 92 1.. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah. (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith. (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination. ARTICLE 23: (a) Authority is a trust; and abuse or malicious exploitation thereof is explicitly 93 prohibited, in order to guarantee fundamental human rights. (b) Everyone shall have the right to participate, directly or indirectly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah. ARTICLE 24: All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah. ARTICLE 25: The Islamic Shari'ah is the only source of reference for the explanation or clarification of any of the articles of this Declaration. 94 Charter of Islamic Court of Justice Downloaded from the website of the Organization of Islamic Conference7 <http://www.oicoci.org/english/convenion/1987/statute_of_the_international_ islamic_court_of_justice_en.pdf> visited 3 June 2012. 7 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 HUMAN RIGHTS AND SUPREME COURT OF PAKISTAN P L D 1992 Supreme Court 385 Present: Muhammad Afzal Zullah, CJ. Abdtd Qadeer Chaudhry and Wali Muhammad Khan, JJ Mst. INAYAT BIBI through Legal Heirs---Appellant versus 1SSAC NAZIR. ULLAH and 2 others---Respondents Civil Appeal No.596 of 1988, decided on 2nd April, 1992. (On appeal from the judgment, dated 25-11-1980 of the Lahore High Court, Lahore, in Writ Petition No.235 of 1979). (a) Succession Act (XXXIX of 1925)--- 119 ----S. 29---Customary succession, so far as Christians were concerned, was altered by Succession Act, 1925 which also abolished customary law in Punjab for the Christians. Kamawati v. Digbijai Singh AIR 1922 PC 14; Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 PR 1892; Abdul Karim and others v. Sahib Jan 5 P.R. 1908; Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn. p.28 and Haji Nizam Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930 ref. (b) Succession Act (XXXIX of 1925)--- ----S. 29---Christian female was allowed to inherit in presence of the male heirs---Succession Act, 1925, by statutory dispensation having determined the mode of succession when a Christian male died neither the custom nor any other law would be applicable. Kamawati v. Digbijai Singh AIR 1922 PC 14; Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 PR 1892; Abdul Karim and others v. Sahib Jan 5 PR 1908; Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134; Muhammadan Law by Tyabji, 3rd Edn., p.28 and Haji Nizam Khan v. Additional District Judge, Lyallpur and others PLD 1976 Lah. 930 ref. (c) Constitution of Pakistan (1973)--- ----Art. 184(3)---Original special jurisdiction of Supreme Conrt---Case involved important questions of law of public importance; it related to the Fundamental Rights of property being claimed by females who were members of minority community who in Pakistan and Islam were additionally protected---Supreme Court, 120 while considering the case to be amply fit for exercise of the power to do complete justice, treated the case covered by the original jurisdiction of Supreme Court under Art.184(3) of the Constitution which could be invoked for the enforcement of fundamental rights. M. Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Appellant. M.L. Shahani, Advocate Supreme Court and MA. Siddiqui, Advocateon-Record for Respondents Nos.l and 2. Nemo for the Remaining Respondent. . Date of hearing: 16th December, 1991. JUDGMENT MUHAMMAp AFZAL ZULLAH, CJ. ---In this case of succession to property left by a Christian male, last holder, leave to appeal was ganted on a contest between the widow and two daughters on the one side and a son and his nephew on the other. Following points were noted for examination:- "(a) Whether, as pleaded from the- petitioners' side in the High Court, the Succession Act 1925 would not govern this case? (b) Whether Punjab Laws Act, 1872 could not. be applied to the present case? 121 (c) Whether the rule of customary law applied against the petitioners depriving these females of inheritance is not contrary to justice, equity and good conscience as understood in the Pakistani jurisprudential context? (d) Whether the said rule of custom is also opposed to justice, equity and good conscience as understood in the Christian community? (e) If the said rule is not opposed to justice, equity and good conscience as understood in Christian community, but is opposed to justice, equity and good conscience as understood in Pakistani Jurisprudential Context; whether the former or the latter consideration would prevail in interpreting section 5 of the Punjab Laws Act, 1872 (in case it is applicable) which reads as follows:- S.5: --In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution the rule of decision shall be- (a) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience and has not been by this or any other enactment altered or abolished and has not been declared-to be void by any competent authority; (b) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to)." 122 The case having been decided by the Revenue Authorities in the mutation proceedings the present appellants (the females) without filing a civil suit, invoked Constitutional (Writ) jurisdiction of the 'High Court but without any success. It was held by the High Court that according to section 5 of the Punjab Laws Act, 1872 the question involved being one of succession covered thereunder, custom of succession would be applicable to the parties concerned if it is not contrary to justice, equity or good conscience. And further that it (custom) has not been altered or abolished by any enactment nor declared void by any competent authority. The argument that section 29 of the Succession Act, 1925 has altered/abolished the Customary Law for Christians and that specific mode of succession with determined shares as provided in the Succession Act, would cover this case, was repelled. A Privy Council judgment in the case of Kamawati v. Digbijai Singh A 1 R 1922 PC 14 which clearly supported the appellant's case was held as inapplicable and distinguishable because it was considered that there was no law parallel to section 5 of the Punjab Laws Act, 1872 in the Province of India from which the said case had arisen. Two Lahore cases: Sohan Lal v. A.Z. Makuin and another AIR 1929 Lah. 230; Sita Ram and others v. Raja Ram 12 PR 1892 and Abdul Karim and others v. Sahib Jan 5 PR 1908 were also referred. The controversy in this case has at this stage been considerably narrowed down. The case before the Privy Council had arisen as is mentioned in report itself from the judgment in the North West Provinces Court, at Allahabad. It is not denied that the area was then known as "North-West Province". The "North-West Frontier Province" of course is a different Province and the learned Judges in the High Court might have been misled to believe that the said case was from the N.-W.F.P. which is in Pakistan, while, as stated above, it was an Allahabad case having arisen in the then North-West Provinces. We have checked it from a 1940 Allahabad case involving the interpretation of the same provisions of the Succession Act (Ranbir Karam Singh v. Jogindra Chandra Bhattacharji AIR 1940 All. 134). And it is interesting to know that the same provision of the Punjab Act of 1872 was discussed and the Lahore case-law was relied upon as is involved in the present appeal. Further research was made during the hearing of this appeal. A comparative chart, of the relevant comparable laws in almost all the provinces of India showing similar provisions as are contained in section 5 of the Punjab Laws Act, 1872, has been found opposite to page 28 of the "Muhammadan Law by Tyabji, 3rd Edition". In the column relating to Oudh, Punjab, NorthWest Frontier, Ajmer-Merwara several laws are mentioned including 123 Punjab Laws Act IV of 1872. with specific mention of section 5 (as amended by Act XII of 1878). North-West Frontier Laws Regulations VII, 1901 and the Laws of Ajmer-Merwara are also mentioned. In the column relating to Bengal, NorthWest Provinces and Assam Act XII of 1887 with its section 37 has clearly been mentioned as also some Bengal and Assam Laws. In view of the aforenoted material and other circumstantial support from several decided cases it is clear that almost throughout India prior to 1947 similar laws had been enacted which applied custom, if not altered or abolished by any Statute Law. In addition to what has been stated above similar exercise was made in the well known Lahore case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others P L D 1976 Lah. 930 with the result that parallel laws were found in several Provinces of India. Learned counsel for the appellants obviously armed with this new found legal position in the North West Provinces (Allahabad) from where the Privy Council case of Kamawati had arisen heavily relied upon it and argued that the main distinguishing features mentioned in the Lahore High Court judgment not being available, the writ petition in the High Court merited to be accepted. He also analysed section 29 of the Succession Act and other related provisions which specify also the shares under the said Act and argued that the Custom in Punjab having been abolished by the Succession Act for the parties herein, was no more applicable and hence the appellants are entitled to the shares in accordance with the Succession Act. Learned counsel for the respondents, however, for considerable time during the arguments insisted that there was no law comparable to section 5 of the Punjab Laws Act in the local area from which the Privy Council case had arisen. When subsequently faced with the abovenoted material, he could not press this point any further and at one stage also agreed that if there was such law applicable in the said local area, the Privy Council judgment could not be held to be distinguishable. As we had not announced the order and had reserved the judgment, the learned counsel was permitted to advance arguments even on the assumption that the ratio of the Privy Council judgment was not attracted to the present case -- it being distinguishable as held in the impugned judgment. 124 He then read and relied on some verses from the Holy Taurat and contended that the Personal Law of the Christians did not permit a sister or a widow to inherit in presence or alongwith male child or other male descendants. The reading by the learned counsel himself, undoubtedly shows, that if there is no male child a daughter would definitely get a specific share. He, however, remained unable to rely upon any other verse dealing with the male and female; namely, when the deceased leaves his son and a daughter. His inferential argument, however, was that vice versa was not mentioned; namely, that in presence of his son the daughter would inherit. Because as he argued it was "very obvious". May be with the further study of this subject more light can be thrown on the Christian Law of inheritance. But it is not necessary for us to do so in view of the two conclusions, we have reached as a result of the foregoing discussion. One, that the Succession Act did alter the customary succession in so far as Christians are concerned; and also for them it abolished customary law in Punjab, therefore, the same would not be applicable. Secondly, that the Privy Council judgment in the present case is fully attracted. Even if we are not otherwise bound to accept the Privy Council view today as binding on this Court; yet there is nothing therein not to commend itself as a correctly laid down legal proposition. The Christian females, similarly as in the present case, were allowed to inherit in presence of the male heirs. It is thus a case of the application of the Succession Act, which by statutory dispensation having determined the mode of succession when a Christian male dies, neither the question of custom nor any other law relied upon by the learned counsel, would be applicable. Before closing this judgment it needs to be mentioned that the learned counsel for the respondents vehemently opposed this appeal on two technical grounds as well. One, that the consistent law laid down by the superior Courts in Pakistan being that no writ lies against an order of mutation, in this matter the High Court, in any case, could not have interfered. And secondly, that the appellants having deliberately allowed their appeal before the Revenue Authority to be 125 dismissed for non-prosecution, (as it was otherwise timebarred) neither sought its restoration nor challenged the order of dismissal for non-prosecution, therefore, no writ was competent. There is some force in any one of the objections raised by the learned counsel but it cannot be said that there is no distinguishing feature in this case, vis-a-vis, the nature of the proceedings before the authorities concerned or with respect to the peculiar dismissal for nonprosecution. However, (i), it being a case involving important questions of law and that also of public importance; and (ii), further it related to the fundamental right of property; and that too (iii), being claimed by females; and above all (iv), they are members of minority community; who (v), in Pakistan and Islam are additionally protected; we told the learned counsel that (vi), we treat this case covered also by the original special jurisdiction of this Court under Article 184(3) of the Constitution; which can be invoked for the enforcement of fundamental rights. In addition, (vii), we considered it an amply fit case for exercise of the power of the Supreme Court to do complete justice. For all these reasons the objections stood overruled. In the light of the foregoing discussion this appeal is allowed and the impugned orders and judgments are set aside. The appellants shall be treated as lawful heirs of the deceased Rehmat Masih. Thus, as the lawful heirs of Rehmat Masih, alongwith respondents they shall also inherit. This decision and declaration shall be given due effect -by all concerned. It may be added that the learned counsel for the appellants has submitted a certificate showing the particulars of the heirs who would inherit. The authorities concerned shall after due verification of the assertion and statement made from the appellants' side in the said certificate, shall allot and allocate the shares accordingly. The said certificate which is signed by the learned counsel and initialled by the Court Associate has been placed on record. 126 M.B.A./I-158/S Appeal accepted 127 2005 P L C (C.S.) 1029 Supreme Court of Pakistan [Shariat Appellate Jurisdiction] Present: Justice Nazim Hussain Siddiqui, Ch airman, Justices Javed Iqbal, Tanvir Ahmed Khan, Dr. Allama Khalid Mehmood and Allama Rashid Ahmed Jullundhari, Members FEDERATION OF PAKISTAN through Secretary, Ministry of Finance Government of Pakistan, Islamabad and others Versus I.A. SHERWANI and 3 others Shariat Appeals Nos.4 to 7 of 1993, decided on 9th January, 2004. (On appeal from the judgment, dated 14-10-1992 of Federal Shariat Court, passed in Shariat Petitions Nos. 63-1/1990, 67/1 of 1990, 18/I of 1991, 24/I of 1991). (a) Civil Service--- ----Pension---Import, object and scope---Right of pension depends upon statutory provisions regulating it, therefore, existence of such right or otherwise is determined primarily from the terms of the statute under which the right or privilege is granted---In general sense, the term `Pension' denotes to a grant after release from service---Pension is designed to assist the 128 pensioner in providing for his daily wants and it presupposes the continued life after retirement. New Encyclopaedia Britannica 15th Edn., Vol. 9, p.266 and Maaruful Qur'an by Hazrat Moulana Mufti Muhammad Shafi p.730 ref. (a) Civil Servants Act (LXXI of 1973)--- ----Ss.19 & 25(2)---Constitution of Pakistan (1973), Art. 203-F---Pension---Old and new pensioners---Classification---Un-Islamic and discriminatory---Doctrine of Adl and Ehsan--Applicability---Respondents being pensioners assailed classification of pensioners as `old pensioners' and `new pensioners' before Federal Shariat Court on the ground of its being against the injunctions of Islam---Petition was accepted by Federal Shariat Court and was declared the classification as discriminatory-Validity-While in service, the employees of any grade all the time did not get the same pay---Supreme Court quoted an example of an employee who entered into service earlier and got increments---Salary of such employee must be more than the employee who joined service in the same grade after a year of the earlier employee---While serving in same grade, when employees got different pays then how they could ask for computation of their pension in violation of Pension Rules in force on the retirement of civil servants---No contract existed between the pensioners and Government regarding terms/conditions relating to the change of rate of pension in future, as such the distinction between `old pensioner' and `new pensioner ' could not be undone and each pensioner would get pay according to his entitlement under the law---Such distinction could not be termed as discriminatory---Pension was regarded as wealth and inequality in its distribution did not render it un-Islamic nor different rates could be termed as discriminatory---Quantum of pension was determined having taken into consideration; (i) the length of qualifying service (ii) emoluments drawn and (iii) as per rates prescribed in relevant rules---Rules of pension, as applicable to the retired civil servants of Pakistan were not contrary to the concept of `Adl' and `Ehsan' as enunciated in 'Islamic principles---Respondent had not assailed any specific provision of law and the judgment passed by Federal Shariat Court was simply of general nature highlighting the grievances of pensioners arising from inflation---Liberal interpretation of pension laws/rules rendering them totally ineffective was neither permissible nor possible---Ex facie, pension related laws were not inconsistent with or in derogation of fundamental rights---On the grounds of personal hardship, inconvenience, disliking and paucity of funds for decent living of a pensioner, the pension related laws, rules and regulations could not be altered, modified or struck down---Judgment passed by Federal Shariat Court , was set aside and the petition filed before Federal Shariat Court was dismissed---Appeal was allowed. The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P. 129 Communications and Works Departments, Peshawar v. Muhammad Said Khan and another PLD 1973 SC 514; D.S. Nakara and other v. Union of India AIR 1983 SC 130; Pakistan v. Public-atLarge PLD 1986 SC 240; Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 and The Board of Trustees of the Federal Employees Benevolent and another v. Nazir Alam Shah 1996 SCMR 1073. ref. (c) Civil Service--- ----Pension---Revision of pay and scales---Effect---Pension of retired Government servants is not to be re-calculated on revision of pay and scale of serving employees---Benefit given to a person in employment cannot be claimed by pensioner as a matter of right. Makhdoom Ali Khan, Attorney-General for Pakistan for Appellants. Respondents in person with Mehr Khan Malik, Advocate-on-Record. Dates of hearing: 1st and 2nd December, 2003. JUDGMENT JUSTICE NAZIM HUSSAIN SIDDIQUI (CHAIRMAN).-------This judgment will dispose of above titled Shariat Appeals in which common questions of facts and law are involved. 2. The appellants of these matters have impugned the judgment, dated 14-10-1992 of learned Federal Shariat Court, Islamabad delivered in Shariat Petitions Nos.63/I of 1990, 67/I of 1990, 18/I of 1991, 24/I of 1991, whereby the same were allowed in terms of the following observations:- 130 "35. We are of the considered opinion that the division of pensioners, into new and old pensioners is also discriminatory. Actually pensioner is a pensioner irrespective of the date on which he retired and whenever there is any revision of salary or pension each one of the pensioners is entitled to get pension equal to the other in the same grade or category. It transpires that section 19 of Civil Servants Act is being implemented by the Government in respect of different pensioners not keeping in view the principle of "Adl" and "Ihsan". We are of the opinion that the aforesaid impugned notifications of the years 1985 and 1986 are inconsistent with the Injunctions of Islam inasmuch as the principles of "Adl" and "Ihsan" have been overlooked. We will direct that Regulation 4 of the Civil Services Regulations be also brought in conformity with the Injunctions of Islam. 36. The judgment shall take effect after 6 months from today." 3. In above titled appeals, the respondents are I.A. Sherwani (in Shariat Appeal No.4 of 1993), Major, M. Yousuf Khan, Naib Subed. Jalil Khan, Dafedar Muhammad Sher, Naik Sher Hassan, Naik Moin Khan, Qazi Waheed-ud-Din and Ishaq Ahmed (in Shariat Appeal No.5 of 1993), Major General (Retd.) Shiren Dil Khan Niazi and Col. (Retd.) Amir Nawaz (in Appeal No.6 of 1993) and Fazal Illahi (in Shariat Appeal No.7 of 1993). All above named have retired from service on various dates and in different grades from their respective departments. 4. These matters related to grant of pension. In the notifications issued in the years 1985 and 1986 by the Government two terms namely "old pensioners" and "new pensioners" have been used. The respondents have been placed within the ambit of "old pensioners". They not only impugned the correctness, proprietary and legality of above terms but also pleaded that the difference between the rates of "new pensioners" and "old pensioners" is inconsistent with the Injunctions of Islam as laid down in Holy Qur'an and Sunnah. 5. The crucial point raised before Federal Shariat Court was whether the Government servants of the same grade, who retired on different dates, could claim the same amount as pension. 6. According to Civil Services Regulations (CSR), the Regulation No.4 empowers the Government to reserve the right of changing the rules of these Regulations regarding pay and acting allowances and leave and pension from time to time at its discretion, and of interpreting their meaning in case of dispute. The Government has exercised this power keeping in view the circumstances at different times. As per CSR by Messrs Hamid Ali and Zaka Ali, Advocates at page 134 of Revised Edition 2002, the pensions are divided in four classes namely:--131 (a) Compensation pension, (b) Invalid pension, (c) Superannuation pension, Retiring pension. (d) 7. Presently, we are concerned with the Superannuation/retired pension, which is granted to a civil servant on reaching a particular age. As per Regulation 486, the term "emoluments" means the emoluments which the Officer was receiving immediately before his retirement and, shall including the:--- (a) Pay as defined in FR 9(21)(a)(1); (b) Senior Post Allowance; (c) Special Pay of all types and nature; (d) Personal Pay; (e) Technical Pay; (f) Dearness Allowance; (g) Increments accrued during leave preparatory to retirement; (h) Any other emoluments, which may be specially classed as Pay. And the term, as per Regulations 487 "Average Emoluments" means the average calculated upon last three years of service. 8. Section 19 of the Civil Servants Act, 1973 speaks about pension and gratuity and section 25 empowers the President or any person authorized by him on this behalf to make such rules as appears to him necessary or expedient for carrying out the purposes of this Act. Pension is acquired after putting in satisfactory service for the prescribed minimum period. It could not be reduced or revised arbitrarily, except to the extent and in the manner provided in the relevant rules. 9. As a rule, the right of pension depends upon statutory provisions regulating it, therefore, the existence of such right or otherwise is determined primarily from the terms of the statute under which the right or privilege is granted. In general sense the term "Pension" denotes to a grant after release from service. It is designed to assist the petitioner in providing for his daily wants and it presupposes the continued life after retirement. In the New Encyclopaedia Britannica Vol.9, 15th Edition at page 266 the following is laid down for the term "pension":--- "Pension, series of periodic money payments to a person who retires from employment because of age, disability, o r the completion of an agreed span of service. The payments 132 usually continue for the rest of the natural life of the recipient, and sometimes to a widow or other survivor. Military pensions have existed for many centuries, private pension plans originated in Europe during the 19th century. Eligibility for and amounts of benefits are based on a variety of factors, including length based on a variety of factors, including length of employment, age, earnings, and, in some cases, past contributions." In Maaruful Qur'an by Hazrat Moulana Mufti Muhammad Shafi at page 730 regarding Islamic System of Distribution of Wealth, the following was observed:--- Urdu 1033 11. Mr. Makhdoom Ali Khan, Attorney-General for Pakistan assisted by Hafiz S.A. Rehman, Deputy attorney-General, appearing for the appellants submitted that respondent I.A. Sherwani had raised similar points before this Court in Constitutional Petition No.15(R) of 1989 and main demand therein was that the pensioners be allowed their pensions to be revised on Pay scales revised by Federal Government from time to time after their retirement. Above referred petition was heard along with two identical petitions and following verdict was recorded by this Court. "33. We would, therefore, allow the above petitions to the extent of declaring that denial of additional benefits of 2% of pension for each year of service exceeding 30 years subject to maximum of 10% of pension sanctioned referred to hereinabove in para. 19(a)(xvii) to the pensioners who retired prior to 1-7-1986, and denial to the petitioner in C.P. No.5-R of 1990 of the benefit under P.O. No.5 of 1988 referred to hereinabove in para.19(b)(vi) on the ground that he retired prior to 1-7-1987 founded on above eligibility criteria as to the date of retirement, being discriminatory and violative of Article 25, they other entitled to the same (if not already granted) pensioners are paid." Learned Attorney-General submitted that above judgment of this Court was implemented from 1-7-1986 and arrears from above date onward were paid. He also submitted that the civil servants 133 are entitled to pension on retirement in terms of sections 19 and 25(2) of Civil Servants Act, 1973. He contended that CSR were in existence before the commencement of Civil Servants Act, 1973, therefore, CSR are to taken as rules under the said Act. He particularly referred to the terms pay as defined in FR-9/21 i.e. the amount drawn monthly by a civil servant. He strenuously argued that pensions of retired Government servants, as per rules, are not recalculated on revision of pay scales of serving employees. He stated that the Government is conscious of welfare of the pensioners and has improved their retirement benefits from time to time in the following manner, in spite of the fact that there is no provision in the rules to allow increase in pension of the retired Government servant:--- (1) Upto 30-6-1966, pensions were calculated on 50% of average emoluments drawn during the last 36 months on completion of 30 years service qualifying for pension. From 1-71966 the percentage was raised from 50% to 60% of the average emoluments. Those who had retired prior to 1-7-1966 were allowed to get their pension re-calculated or to enjoy increase on their pension sanctioned from 1-4-1964. (2) Under Liberalized Pension Rules for Civil Servants introduced in 1977, the Government servants retired on or after 1-3-1972 after a service of 30 years were allowed to get their pension re-calculated @ 70% of average emoluments or continue to draw Pension under the then existing formula of 60% of average emoluments with following increases already admissible as to them: Rate of increase (i) (a) Gross pension not exceeding Rs.50/- Date of effect 1-6-1973 ad hoc increase @ 20% subject to minimum of Rs.5 (b) 15% of gross pension subject to minimum of Rs.10 for pensions between Rs.51 to Rs.100 134 (c) 15% of gross pension subject to minimum of Rs.30 on pensions upto Rs.500 with marginal adjustment upto Rs.530. (ii) 15% of gross pension not exceeding 1-8-1973 Rs.700 subject to maximum of Rs.35 (iii) 15% of gross pension subject to a 8-6-1974 maximum of Rs. 100 (iv) 10% of gross pension subject to a 7-4-1975 maximum of Rs.25 p.m. Pensioners who had retired before 1-3-1972 were entitled to have their retirement pensions recalculated in accordance with one of the following alternatives whichever was more favourable to them; The amount of their pensions shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service without dearness increases sanctioned before 1st February, 1977. They may continue to receive existing pension and increase with following additional benefits:--- (1) An increase of 5% in the case of an employee who retired between 1st July, 1963 and 29th February, 1972 or 12-1/2 per cent in the case of an employee who retired upto 30th June, 1963 over his existing gross pension, plus dearness increases admissible thereon. 135 (2) From 1-7-1980 the Government servants retired upto 30-6-1980 were given the following gradewise increases:-- Grade 1 to 10 Grade 11 to 16 Grade 17 to 18 Grade 19 to 20 Grade 21 to 22 Rs.40 p.m. Rs.70 p.m. Rs.100 p.m. Rs.150 p.m. Rs.200 p.m. (3) From 1-7-1981 an increase of 10% of gross pension subject to maximum of Rs.200 p.m. to those retired upto 31-12-1982. (4) From 1-7-1982 an increase of 10% of gross pension subject to maximum of Rs.200 p.m. to those retired upto 30-6-1983. (5) From 1-7-1983, the following benefits were given:--- (i) Dearness increase @ 10% of gross pension subject to maximum of Rs.200 to those retired up to 30-6-1983. (ii) Family pension of widow was made for life. Previously it was admissible for five years upto 29-2-1972 and for 10 years thereafter. Also see sub-para. (6)(iv) below in case of widows whose pension ceased due to expiry of 5/10 years. (iii) Prior to 1-7-1983 the concept of ordinary family pension did not exist for Armed Forces pensioners upto the rank of Junior Commissioned Officers. The families of such personnel retiring on or after 1-7-1983 were allowed family pension as admissible on civil side. 136 (6) From 1-7-1985 following benefits were allowed:--- (i) Pensioners retired upto 31-12-1985 were given indexation on pension @ 13-1/2% of gross pension upto Rs.1500 and 10% of gross pension above Rs. 1500 to those retired upto 31-121985. (ii) Prior to 1-7-1985 pensions were subject to 50% reduction after Rs.600, 1000, 2000, 2500 during 1-7-1966 to 29-2-1972, 1-3-1972, 30-6-1985 respectively. The above cut-off points were removed from 1-7-1985. This benefit was also. allowed to all those retired prior to 1-7-1985 and widows whose husbands retired or died prior to 1-7-1985. No arrears were allowed prior to 1-71985. (iii) There was no concept of restoration of pensions surrendered for commutation/gratuity if the pensioners concerned out-live the prescribed period. From 1-7-1985 1/4th of gross pension surrendered for commutation was made restorable to the pensioners who out-live the period for which it was allowed but no arrears were allowed prior to 1-7-1985. Also see items 7(ii) and 12. (iv) The family pension of widows which ceased prior to 1-7-1983 after expiry of prescribed period of 5/10 years and in cases where pension was not admissible as the retired/deceased Government servant had already availed pension- for 5/10 years were also allowed family pension for life or until remarriage. (7) From 1-7-1986 following benefits were allowed: (i) Those retired upto 31-12-1985 were given indexation @ 4-1/2% of gross pension upto 1500 and 3-1/2% of gross pension above Rs.1500. Those retired between 1-1-1986 and 30-6-1986 were given indexation @ 4% of gross pension upto Rs.1500,and 3% of gross pension above Rs.1500 or indexation on pension at the rate applicable had they retired on or before 1-1-1986. 137 (ii) 1/4th of the pension surrendered for gratuity i.e. where commutation was not availed was also made restorable from 1-7-1986 to the pensioners who outlive the period for which it was allowed. (iii) Initially Government servants retired on or after 1-7-1986 were entitled to additional benefit @ 2% of pension for each year of service put in after 30 years service subject to maximum 10% of gross pension. This was subsequently extended to those retired prior to 1-7-1986. (8) From 1-7-1987 following benefits were allowed to pensioners:--- (i) Indexation on pension @ 4% of gross pension to those retired upto 30-6-1987. (ii) The widows of Government servants who died prior to introduction of pension-cum-gratuity scheme, 1954 were also allowed family pension from 1-7-1987 if the deceased had rendered pensionable service. (iii) The widows of Armed Forces personnel upto the Rank of Junior Commissioned Officers who retired/died prior to 1-7-1983 were also allowed ordinary family pension for life or until remarriage. Those retired and died after 1-7-1983 were already entitled to family pension (item 5(iii) above. (9) From 1-7-1988 following benefits were given to the old pensioners:--- (i) Indexation on pension @ 7% of gross pension to those retired upto 30-6-1988. 138 (ii) The widows who were granted family pension from 1-7-1985 (item 6 above) were also allowed the dearness increases on their pensions. (iii) From 1-7-1988 no gross pension of a retired Government servant would be less than Rs.300 p.m. (10) From 1-7-1990 5% of pension to all retired upto 30-6-1991. (11) Government servants retired prior to 1-7-1986 have been allowed the benefit to the extent of 2% of gross pension for each extra year of service beyond 30 years qualifying service subject to a maximum of 10% of gross pension (orders issued on 13-6-1991). (12) From 1-7-1991, one fourth of gross pension surrendered in lieu of gratuity, in addition to commutation, has been allowed to be restored, after outliving the period for which gratuity was allowed. (13) From 1-7-1991 Government servants retired prior to 1-5-1977 have been allowed dearness increases @ 12% and those retired from 1-5-1977 @ 12%. 3. In the light of above, present gross pension of an officer retired in March, 1977 after drawing maximum of B-20 for 3 years and after service of 35 years has risen from Rs. 1410 p.m. to Rs.3,997.69 p.m. as under:--- 1. 2. 3. 4. 5. Gross pension for 30 years service on 31-3-1977 Grade-wise increase from 1-7-1980 10% of above 2 items from 1-7-1981 10% of above 3 items from 1-7-1982 From 1-7-1985 restoration of cut-off or 410 (imposed at the time of retirement) 6. 10% of above 5 items from 1-7-1985 7. 3-1/2% of first five items from 1-7-1986 8. 4% of first five items Rs.1410 Rs.150 Rs.156 Rs.171/60 Rs.410 Rs.229/76 Rs.80/41 Rs.91.90 139 9. 7% of first five items Rs.160.83 10.5% of first five items 11.From 1-7-1986 benefit ® of 2% of items 1 and 5 above for each year of service put in after 30 years service subject to maximum of 10% with increases items 7 to 10 above. 12.32% of first five items and items 11 Total Rs.114.88 R.217.49 Rs.804.32 Rs.3,997.69 Grant of 5% additional benefit from 1-7-1990 in pension involves expenditure of Rs.570.65 million and benefit of Rs.200 p.m. from 1-7-1990 involves additional expenditure of Rs.2,581.46 million on 10,75,607 pensioners. For this additional expenditure Government will have to levy additional taxes, which will increase prices affecting entire population of the country. He also submitted that the term pension though found mentioned in various statutes viz. Pension Act, 1871, C.P.C., Civil Servants Act etc. but it has not been defined in these laws. He stated that pension is payable to a civil servant on his retirement on the basis of (1) length of qualifying service (2) emoluments drawn and (3) as per rates prescribed in relevant rules. He also argued that the Government even has a right to withhold or reduce pension, as per rules. 12. During the course of arguments the following cases were referred:--- (1) The Government of N.-W.F.P. through the Secretary to the Government of N.-W.F.P. Communications and Works Departments, Peshawar v. Muhammad Said Khan and another PLD 1973 SC 514. (2) D.S. Nakara and others v. Union of India AIR 1983 SC 130. (3) Pakistan v. Public-at-Large PLD 1986 SC 240. 140 (4) Government of N.-W.F.P. v. LA. Sherwani and another PLD 1994 SC 72. (5) The Board of Trustees of the Federal Employees Benevolent and another v. Nazir Alam Shah 1996 SCMR 1073. In the case referred to at Serial No.1, it was held that pension is no longer a bounty but a right and it cannot be reduced arbitrarily. In the case at Serial No.2, Article 14 of the Constitution of India was under discussion. It forbids class legislation but permits reasonable classification for the purpose of legislation, which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the subject sought to be achieved by the statutes in question. In the case at Serial No.3, a Shariat Appellate Bench of this Court, comprising five Hon'ble Judges interpreted the phrase. `Injunction of Islam' with reference to the Article 203(b)(d)(e) of the Constitution.: of Islamic Republic of Pakistan and the matter was remanded to Federal Shariat Court for fresh decision in accordance with the principles enunciated in said judgment. In the case at Serial No.4, while interpreting Rules 53 of the Fundamental Rules, it was held that Rule 53 and rules mentioned at Serial No.106 and all the parallel rules of the Provinces were repugnant to Injunction of Islam to the extent that they deprived Government Servants of their full salary and other benefits during the period of suspension and that suspended Government Servant was entitled to full amount of his salary and all other benefits and facilities provided to him under the Contract of service. In the case at Serial No.5 the following was held:--- "There can be two classes of civil servants, one who are in employment and the others who have retired. If a benefit is given to the persons in employment, which is not extended to the pensioners, then it will not amount to discrimination as both of them 141 belong to different classes, and such classification is reasonable. Such classification will be based on intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out. Such differentia has rational nexus to the object sought to be achieved by such classification." 13. It was contended on behalf of the respondents before learned Federal Shariat Court that pensioner is a pensioner' and there could be no classification as "old pensioner" and "new pensioner". This plea was accepted by Federal Shariat Court, ignoring the fact that the quantum of pension is determined keeping in view the emoluments, as specifically mentioned in para. (7) above. It is noted that, while in service the employees of any grade all the time do not get the same pay. For example, an employee, who enters into service earlier and get increments, his salary must be more than an employee, who joined service in the same grade after a year of the earlier employee. While serving in the same grade, the employees get different pay, how they could ask for computation of their pension in violation of Pension Rules in force on the date of retirement of civil servants. Admittedly, there is no contract between the pensioners and the Government regarding terms/conditions relating to the change of rate of pension in future, as such, the distinction between old pensioners and new pensioners could not be undone and each pensioner would get pay according to .his entitlement under the law and this could not be termed as discriminatory. Pension is regarded as wealth and inequality in its distribution does not render it un-Islamic nor different rates could 'be termed as discriminatory. The quantum of pension is determined having taken into consideration; (1) the length of qualifying service (2) emoluments drawn and (3) as per rates prescribed in relevant rules. The concept of "Adl" and "Ehsan" as enunciated in Islamic Principles is not contrary to the rules of pension, as applicable to the retired civil servants of Pakistan." 14. It is significant to note that as per rules the pension of retired Government Servants is not to be re-calculated on revision of pay and scale of serving employees. A benefit given to a person in employment, the same cannot be claimed by the pensioner as a matter of right. 15. The case reported as I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041, was heard by five Hon'ble Judges of this Court. Almost all the points, raised in these appeals, were considered and answered in above referred judgment. Like these appeals, the issue of jurisdiction was raised therein and it was held that under clause (3) of Article 184 of the Constitution, this Court is competent to entertain such Constitutional petition if it considers that a question of pubic importance is involved with reference to the enforcement of any of the Fundamental Right conferred by Chapter 1 of Part II of the Constitution, notwithstanding that there might be an alternate remedy. Further, it was held that the such proceedings being in the nature of pubic interest litigation, therefore, in order to advance the cause of justice and public good, the power conferred on this Court under aforesaid Article is to be exercised liberally and unfettered with technicalities. 142 16. The contention that since the Pension Scheme in Pakistan is salary related, as such, revision in pay scales should also be made applicable to the pensioners, as the reason for revision of pay scales is the rising cost of living and escalating inflationary tendencies in the economy and also decrease in the economic value of rupee, which affect both the serving civil servants and pensioners, was turned down and the following was held in the above reported judgment: "In this view of the matter, if the pay scales of serving civil servants are revised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scale for re-computing their pension amounts for any purpose as the pension amount is to be computed as per above CSR 4, on the basis of the pension rules in force on the date of retirement of a civil servant. The pension rules contain formula as to the method of commutation of pension amount with reference to the salary drawn by him till the date of retirement and, therefore, there cannot be uniformity in the amounts of pension among the civil servants despite of having equal rank and equal length of service, if they retire not on one date but on different dates and in between such dates pay scales are revised." 17. Even otherwise, specifically any provision of law has not been challenged and the impugned judgment is simply of general nature highlighting the grievances of the pensioners arising from inflation. Liberal interpretation of pension laws/rules rendering them totally ineffective is neither permissible nor possible. Ex facie, pension related laws are not inconsistent with or in derogation of fundamental rights. On the grounds of personal hardship, inconvenience, disliking and paucity of funds of decent living of a pensioner, the pension related laws, rules, and regulations cannot be altered, modified or struck down. 18. In consequence, we allow these appeals, set aside the impugned judgment of Federal Shariat Court and dismiss the petitions tiled by the respondents before Federal Shariat Court. M.H./F-16/S Appeals allowed. 2005 S C M R 100 143 [Supreme Court of Pakistan] Present: Nazim Hussain Siddiqui, C.J. Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ IKRAM BARI and 524 others---Petitioners Versus NATIONAL BANK OF PAKISTAN through President and another---Respondents Civil Petitions Nos. 1772, 1789 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909 to 1942, 1944 to 1946, 1991 to 1998, 2002, 2021 to 2080, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2164, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2188 to 2432, 2449 to 2520; 2530 and 2606 of 2003, decided on 21st September, 2004. (On appeal from the judgment, dated 17-7-2003 of the Federal Service Tribunal, passed in Appeals Nos. 98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 131?, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466-R/CW/2002) (a) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---Termination from service---Godown staff/daily wages employees--- Status---Employees had been working with bank for the past many years on daily wages in various categories---Bank terminated their services on the ground that although the employees were appointed by the bank yet 144 their salaries were being paid by the borrowers," loanees---Validity---As the employees were not selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they could be treated to be the employees of the borrowers/loanees---It the salaries of temporary employees/godown staff or the daily wages employees were debited to the borrowers account that would make no difference since for all practical purposes and legal consequences the employees were placed under the administrative control of the bank. (b) Islamic jurisprudence--- ----Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is free from exploitation wherein social arid economic justice is guaranteed to its citizens. (c) Industrial dispute--- ----Employer and employees---Bargaining strength---Termination from service ---Godown staff/daily wages employees---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet, their salaries were being paid by the borrowers/loanees---Validity---No equilibrium of bargaining strength between employer and employees existed---Manner in which the employees had been dealt with by the bank was a fraud on the statute. (d) Constitution of Pakistan (1973)--- ----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance--- Applicability---Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights--Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and 145 earnings of individuals--State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability, to each according to his work. (e) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A--Constitution of Pakistan (1973), Art.212(3)--Termination from service ---Godown staff/daily wages employees ---Reinstatement---Back-benefits, grant of---Employees had been working with bank for the past many years on daily wages in various categories--Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---Supreme Court found it difficult to countenance the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act, 1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the door, had no option but for accept and continue with the appointment on whatever conditions it was offered by the bank---Service Tribunal had rightly imposed a condition of three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of employees---Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time--Employees had woken up from deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair and inequitable to grant them monitory back-benefits of service from the dates of their initial appointments---Supreme Court directed the bank to issue appointment letters to the employees and previous service rendered by them with the bank would be counted towards retirement/pensionary benefits---Appeal was allowed. Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SCMR 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Ltd, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; Federation of Pakistan v. Raees Khan 1993 SCMR 609; Abdul Majeed Sheikh v. Mushafee Ahmed PLD.1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editorin-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala, v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 146 2 others 1996 SCM.R 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294; Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Malik Khawaja Muhammad and 24 .others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Allahdino v. Fakir Muhammad and another PLD 1969 SC 582; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC); Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212; Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; WAPDA and others v. Khanimullah and others 2000 SCMR 879; Black's Law Dictionary Revised 4th Edn. (1968) p.1518; State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 (D.B.) Karachi; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi); Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lah.); Syed Aftab Ahmed and others K.E.S.C. and others 1999 SCMR 197; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935 Muhammad Riaz Khan v. Government of N.W.F.P. and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471; Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Hakim Muhammad Buta and another v. Habib Ahmad and 'others PLD. 1985 SC 153; Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337 ref. (f) Judgment--- ---Judgment in rem and judgment in personam---Case-law cited. Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34 (S.C.), Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218, M/A Rashid Rana v. Secretary Home, Government 147 of Punjab 1996 SCMR 1145, Pir Bakhsh (supra) PLD 1983 SC 684, Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567, Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684 rel. (g) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--Termination from service---Time-barred appeal---Plea of void order--Limitation---Principle---Service Tribunal dismissed the appeal being barred by limitation---Plea raised by the employees was that the order of termination was a void-order against which there was no period of limitation---Validity---No rule of universal application was that in all cases of void orders, question of limitation was to be treated a mere technicality and a litigant was entitled to' invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay---Supreme Court declined to interfere with the order passed by Service Tribunal-Leave to appeal was refused. Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and two others PLD 1990 SC 692 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882 rel. (h) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)--Termination from service ---Godown staff/daily wages employees--Proceedings before National Industrial Relations Commission-Employees had been working with bank for the past many years on daily wages in various categories- --Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Employees had been pursuing their cases before National Industrial Relations Commission and their appeals were dismissed by Service Tribunal being barred by limitation---Validity---Controversy as to the application of S.2-A of Service Tribunals Act, 1973, remained in a state of fluidity for a considerable period of time---Service Tribunal itself had declined to exercise its jurisdiction in, old cases and the matter was resolved by Supreme Court---As the termination orders were passed on 2-7-2002, 30-4-2002 and 29-2-2002 and appeals before Service Tribunal were filed on 6-7-2002, 8-6-2002 and 29-4-2002 after filing departmental appeals, the Service Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of the employees as 148 time-barred---Judgment of the Service Tribunal was set aside and the petition for leave to appeal was converted into appeal---Supreme Court reinstated the employees in service with back-benefits from the date of their termination---Appeal was allowed. Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 rel. Ch. Ghulam Qadir, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1772, 1789 to 1795, 1839, 1840 to 1843, 1884 to 1896, 1901 and 1910 to 1912/2003). Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174/2003). Syed Iftihkar Hussain Gillani, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate-onRecord for Petitioners (in C.Ps. Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003). Ehsan-ul-Haq, Ch. Advocate Supreme Court for Petitioners (in C.Ps. Nos.2021 to 2073, 2075, 2076, 2078, 2179 and 2180 of 2003). Muhammad Akram Sh, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003). Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2168 of 2003). 149 Kh. Muhammad Farooq, Senior Advocate Supreme Court with Rai Ahmed Nawaz Kharal, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in C.Ps. Nos.2188 to 2425 of 2003 and in all other petitions). In person (in C.Ps. 2182, 2183 to 2185 and 2330/2003). Date of hearing: 9th March, 2004. JUDGMENT FAQIR MUHAMMAD KHOKHAR, J.---These petitions for leave to appeal, under Article 212(3) of the Constitution of Islamic Republic of Pakistan, by the Bank employees as well as by the National Bank of Pakistan (employer) are directed against common judgment dated 17-7-2003 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466R/CW/2002. 2. The petitioners/Bank employees were appointed on fixed salaries by the National Bank of Pakistan in various categories of Godown Staff such as temporary Godown Keepers/Chowkidars or on daily wages as Assistants, Cashiers, Steno-typists, Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers and Watermen etc. They continued in service for a number of years with short breaks in service from time to time without being regularized. The services of some of them were terminated. Therefore, they filed appeals before the Tribunal for regularization, or as the case may be, for reinstatement and regularization in service as permanent employees of the Bank. 150 3. The Tribunal accepted most of the appeals of the Godown staff and the daily wages employees (petitioners in Civil Petitions No.1772, 1789 to 1795, 1839, 1840, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606/2003), by the impugned judgment, dated 17-7-2003, in terms of para. 10 thereof to the following effect:--- "Result of the aforementioned discussion is that the appeals shown at serial Nos. 1 to 240 filed for regularisation by the Godown Staff and the daily wage employees succeed and are accepted. The respondent-Bank is directed to regularize the services of appellants who have completed three years of service with breaks of not more than 15 days between any two consecutive appointments. The regularization exercise should be completed within five months of the receipt of this judgment. While admitting these appeals this Tribunal had passed orders restraining the respondent-Bank from passing any adverse orders against the appellants. Therefore if services of any of the appellants were terminated during the pendency of his appeal, the same being violative of the Tribunal's orders, stands set aside and the affected employee is reinstated in service and entitled to payment of salary for the intervening period." However, the appeals of the employees (petitioners in Civil Petitions Nos. 1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077, 2088, 2164, 2449, 2464, 2482 to 2484, 2489 and 2498 of 2003) were dismissed as time-barred. The appeals of the petitioners (in Civil Petitions Nos. 1841 to 1843 of 2003) against their termination from service were also accepted and the respondent-Bank was directed to regularize their services in accordance with the criteria laid down in para. 10 of the impugned judgment .for regularization of temporary Godown Staff and daily wages employees whose services had not been terminated. The appeals of the petitioners (in Civil Petitions 1939, 1991, 1992 and 1995 of 2003) were also dismissed as time-barred on the ground that they had been pursuing their remedies for regularization/reinstatement in service before the National Industrial Relations Commission despite the introduction of section 2-A in the Service Tribunals Act. 1973 (hereinafter referred to as the Act. of 1973). Hence these petitions for leave to appeal by the employees for grant of back-benefits, against conditions of regularization and against dismissal of their appeals as time-barred and also by the Bank against the regularization/reinstatement of the employees in service. 4. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2181, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003) submitted that the Bank had agreed to absorb the petitioners and other employees after a meeting with representatives of the staff. Some of such 151 employees had already been permanently absorbed. The Bank had issued a Circular Letter No.P/2003 dated 1-8-2003 which clearly showed that regular vacancies numbering up to 1500 were available to regularize the temporary Godown staff and the daily wages employees. The impugned judgment of the Tribunal was required to be modified so as to regularize and absorb the petitioners/employees from the date of their initial appointment with all back-benefits as was done in the case of other employees who were similarly placed. The learned counsel pointed out that there was a confusion in regard to the remedy provided to the employees of statutory corporations or other bodies established and controlled by the Federal Government. The controversy was eventually resolved by this Court in the case of Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 wherein it was held that remedy of appeal under section 2-A of the Service Tribunals Act, 1973 had become available to such employees retrospectively in respect of their service related grievances. Even otherwise the question of limitation was of a technical nature which ought not have been treated to be insurmountable -hurdle as laid down in the case of Managing Director Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724. 5. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court for the employees (petitioners in Civil Petitions Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003) argued that ordinarily the findings of fact recorded by the Tribunal were not interfered with by this Court. The petitions filed by the Bank did not raise any substantial question of law of public importance as contemplated by clause (3) of the Article 212 of the Constitution which was necessary for grant of leave to appeal. It was further submitted that admittedly the letters of appointment of the employees had been issued by the Bank itself. There was no necessity of lifting veil merely on the ground taken by the Bank that the temporary Godown staff and daily wages employees were recruited on behalf of the account holders/borrowers. The learned counsel submitted that the entire bank staff whether temporary or permanent was there at the expense of the account holders. The learned counsel relied on the case of National Bank of Pakistan v. Ghulam Rasool 2002 PLC (C.S.) 1639 in support of his contention that in similar cases, this Court had declined interference with the regularization of the temporary Godown staff by the Tribunal. The learned counsel lastly submitted that the petitioners-employees were entitled to be regularized in service with back-benefits and without any preconditions. 6. Mr. Ihsanul Haq Chaudhry, Advocate Supreme Court, learned counsel for the employees (petitioners in Civil Petitions Nos.2021 to 2073, 2075, 2076, 2078, 2079, 2164, 2179 and 2180 of 2003) argued that the appointment of the petitioners, like other employees, was made against permanent posts but the Bank adopted an illegal policy to employee the Godown and daily wages staff on fixed salary, from time to time, with short breaks in service after every 89 days. In many cases, the employees were not issued any letters of appointment or termination from service. The Bank itself had issued instructions in the year 1991 for absorption/confirmation of the daily wages employees and Godown staff. The lists of Godown staff and daily wages were prepared and a highpowered committee was constituted by the Head Office of the Bank for scrutiny of the lists for the purpose of absorption. A number of such 152 employees were regularized by the Bank by following a policy of pick and choose. However, the petitioners and some other employees were not regularized. It was further pointed out that the Headquarters of the Bank (Personal Management Wing) (Administration Division), Head Office, Karachi, had issued memo. dated 7-7-1997 whereby it was decided to absorb 1000 daily wages staff including temporary Godown staff, 700 in clerical and 300 in non-clerical cadre as on 29-2-1996, on seniority and provincial quota basis subject to fulfilment of qualifications prescribed for the posts. The Bank also issued another policy letter dated 1-8-2003 pursuant to an agreement, dated 20-1-2003 between the National Bank of Pakistan and Collective Bargaining Agent. It was decided that all employees of the, clerical staff and non-clerical staff such as daily wagers/temporary Godown staff of the Bank who had completed three years of service in the case of clerical staff and 5 years service in the case of nonclerical staff and had passed their matriculation examination would be employed by the Bank in the regular cadre against 1500 posts provided the gap between their termination/re-appointment did not exceed 15 days. The Head Office of the Bank by circular dated 15-9-2003 notified instructions to all its Regional Offices to issue the appointment letters to temporary Godown staff and daily wages employees on the spot. The learned counsel next submitted that in somewhat similar circumstances the management trainees of the Sui Northern Gas Company Ltd, Karachi were also inducted/regularized. Reference was made to the cases of Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82, the Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796. The learned counsel contended that even in the past, a number of daily wages employees and temporary Godown staff were regularized in service by the Tribunal as affirmed by this Court judgment, dated 23-10-2001 in Civil Petitions Nos.1833-L of 2001 to 1848-L of 2003. Civil Review Petitions Nos. 1-L of 2002 to 39-L of 2002 there-against were withdrawn by the Bank. Similarly, the Bank had also withdrawn Civil Petitions Nos.2172 and 2173 of 2001 titled National Bank of Pakistan and others v. Umer Hayat and others on 15-1-2002 involving similar cases. It was too late in the day for the Bank to say that the petitioners and similar other employees were employed by the Bank on behalf of the borrowers who could not be considered to be the employees of the Bank or that their appointments were of seasonal nature. The learned counsel submitted that where the appointment of an employee continued for over a period of years, the same was to be treated as regular notwithstanding the use of terminology as officiating, temporary and until further orders. Reliance was placed on the cases of Federation of Pakistan v. Raees Khan 1993 SCMR 609 and Abdul Majeed Sheikh v. Mushafee Ahmed PLD 1965 SC 208. Reference was made to the case of Ghulam Rasool (supra) wherein it was held that artificial break in service would not make any difference and such employees of the National Bank were to be treated as regular. The learned counsel argued that all the employees who were similarly placed were required to be treated alike. The judgments passed by this Court in such cases would be considered to be judgments in view and not in personam in view of ratio laid down by this Court in the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185. It was pointed out that the employees who were regularized as a result of judgment, dated 25-10-2001 by this, Court in Civil Petitions Nos.1837-L of 2001 to 1848-L of 2001 had also been further promoted in the meanwhile. As regards Civil Petition No.2164 of 2003, the learned counsel contended that in the facts and circumstances of the case, the Tribunal was not justified to dismiss the appeal of the said petitioner as time-barred. 153 7. Ch. Ghulam Qadir, Advocate Supreme Court learned counsel for the employees (petitioners in Civil Petitions Nos.1772, 1789, 1790, 1792, 1793 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909, 1910, 1911 to 1915 of 2003) submitted that neither the conditions for reinstatement/regularization of the petitioners could be imposed nor their back-benefits could be denied by the Tribunal. The impugned judgment was contrary to the earlier decisions of the Tribunal in similar cases which were upheld by this Court. Reference was made to the judgment, dated 2-6-2003 passed by the Tribunal in Appeals Nos.1170R/CW/2002 to 1175RCW of 2002. As regards the cases of termination of the employees (petitioners in Civil Petitions Nos.1909, 1913 to 1915 of 2003), the learned counsel submitted that the Tribunal ought to have accepted their appeals by condoning the delay in filing the appeals. He referred to the cases of Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-iWaqt" and others PLD 2002 SC 514, Hameed Akhter Niazi v. Secretary, Education Division, Government of Pakistan and others 1996 SCMR 1185 and Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I v. Government .of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645. It was further submitted that since the orders of termination of employees passed by the Bank were void ab initio and nullity in the eye of law. Therefore, the question of limitation would not arise. Reliance was placed on the cases of Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856, Ali Muhammad v. Hussain Bakhsh PLD- 1976 SC 37, Syed Ali Abbas and others v. Bishan Singh and others PLD 196'7 SC 294, Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC, 68, Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543, Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962 and Allahdino v. Fakir Muhammad and another PLD 1969 SC 582. 8. Hafiz Tariq Nasim, Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions 1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174 of 2003) reiterated the arguments advanced by the other learned counsel for the employees. 9. On the other hand, Khawaja Muhammad Farooq, Senior Advocate Supreme Court, the learned counsel for the National Bank (petitioners in Civil Petitions Nos. 2188 to 2432 of 2003) submitted that in all 316 appeals were filed by the employees before the Tribunal against the Bank with the following breakup:--- (a) (b) (c) Temporary Godown Staff Temporary Godown Chowkidars Daily Wagers 138 Appeals 133 Appeals 45 Appeals 154 (d) 76 appeals by the persons whose services were terminated, which included categories a to c. The learned counsel next argued that the daily wagers and temporary Godown staff were not the employees of .the Bank as they were hired on borrowers account. The same was clearly borne out from the letters of their appointment of these persons. The borrowers had authorized the Bank to make payment of salaries to the temporary Godown staff and debit the same in their account. Such persons were never inducted in service of the Bank and were paid a fixed consolidated salary inclusive of allowances. They were not appointed against sanctioned posts in conformity with the National Bank of Pakistan (Staff) Service Rules, 1980 (hereinafter referred to as the Service Rules). Since the petitioners were not in the service of the Bank, therefore, they were not to be treated as civil servants for the purposes of section 2-A of the Service Tribunals Act, 1973. Their services stood automatically terminated on the expiry of stipulated period in accordance with terms and conditions of their appointment or earlier on the adjustment of the finance facility of the borrowers. The petitioners were hired from time to time for specified period either on behalf of the same or a different borrowers. Each time the appointment was essentially a temporary or contractual one without there being any continuity of service and in some cases there was gap for considerable period of time between their termination. and reemployment. It was next contended that the format of the letters of appointment had been changed by the Bank but the Tribunal relied on the absolute form of earlier letters of employment. The financial impact of the claim of the petitioners, if allowed, would be a matter of grave concern for .the Bank. The learned counsel relied on the judgment of this Court in the case of Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C.S.) 25 (SC) where the previous service of a bank employee rendered with the Government was, not counted towards pensionary benefits. It was submitted that the policy decisions of 1996 and 2003 for absorption/induction of temporary Godown staff and daily wages employees were taken by the Bank subject to the availability of regular and permanent posts. The temporary Godown keepers/Godown Chowkidars and the' daily wages employees were either not in service at the time of commencement of such policy decisions or they otherwise did not fulfil the criteria laid down by the Bank. As regards Circular letter, dated 1-8-2003 issued by the Bank for creation of 1500 posts for regular absorption of such employees, the learned counsel pointed out that the said circular letter reflected only the state of affairs existing on the said date and not to any prior point of time from which the temporary Godown staff and the other daily wage employees were claiming their absorption/induction. It was further stated that circular letter, dated 1-8-2003 was issued by the Bank after the impugned judgment dated 17-7-2003 of the Tribunal. A number of such employees had Withdrawn their cases from the Tribunal so as to avail the benefit of the said circular letter and were appointed on regular basis in terms thereof. 155 10. The learned counsel for the Bank next contended that the mere fact that temporary appointments of the petitioners continued for several years would not mean that those would automatically be considered to be permanent. Reliance was placed on the cases of Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156 and Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37. It was urged that the earlier judgments of this Court and the Tribunal in regard to the regularization of temporary Godown staff or the daily wages employees were distinguishable and were in personam and not in view. Reference was made to the cases of Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796, Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212 Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145 and Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145. The terms and conditions of service of the employees were governed by letters of their appointment and not otherwise in view of the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101. These persons were hired, from time to time, on work charge basis/daily wages for a particular project and for a specified duration: Therefore, they could not be considered as regular employees irrespective of their length of service The learned counsel relied on the cases of WAPDA and others v. Khanimullah and others 2000 SCMR 879. Reference was also made to the Black's Law Dictionary Revised 4th Edition (1968, page 1518) wherein 'seasonal employment' was defined as occupations which could be carried on only on certain seasons or fairly definite portion of the year and did not include such occupations as might be carried on throughout the entire year. The learned counsel emphasized that the employment for a specific project and a certain period came to an end automatically on completion of project or, expire of the specified period in view of the law aid down in the cases of the State Bank of India v. Shri N. Sundara Money AIR 1976 SC 1111 and Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249. He also referred to the cases of General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 (D.B.) Karachi and Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi) in support of the proposition that there was nothing to imply a permanent appointment of a person who was re-employed after a short gap of earlier termination and that where a person hired on behalf of the borrower could not be treated to be in the employment of the Bank. Some of these persons were daily wages employees being paid salary only with reference to the number of working days excluding holidays. Therefore, they could not be treated to be the Bank employees. Reference was made to the cases of Muhammad Yaqoob v. The Punjab Labour Court No. 1 and 5 others 1990 SCMR 1539, Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC (C.S.) 162 (Lahore). 11. The learned counsel for the Bank further argued that the Tribunal had unjustifiably treated appeals of these employees to be within time who had wasted their time in filing their departmental appeals which were not required in view of section 2-A of the Act, 1973 and rule laid down in the cases of Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197 and Ghulam Abbas and others (supra). 156 The employees were required to file their appeals before the Tribunal within 30 days of termination of their services or, as the case might be, the refusal to regularize their service by the Bank. An employee Fiaz Ahmed (C.P. No. 1841 of 2003) had filed his appeal before the Tribunal on 25-6-2002 beyond the limitation period of 30 days of his termination from service with effect from 19-5-2002. Similarly, Civil Petitions Nos.1934, 1937 and 1938 of 2003 of the employees were also liable to be dismissed as their appeals before the Tribunal were rightly held to be time-barred. The question of limitation was not to be ignored in service matters. Reliance was placed on the cases of Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935, Muhammad Riaz Khan v. Government of N.-W.F.P and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471, Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389, Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628 and Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153. 12. We have heard the learned counsel for the parties at length and have also perused the relevant record. We find that the employees/petitioners were recruited, by the Bank by issuing appointment letters indicating, in some cases, that they were to be governed by the Service Rules of the Bank for disciplinary matters. They were not selected or recommended by the borrowers. Therefore, on no principle of law and enquiry, they could be treated to be the employees of the borrowers. It would hardly make any difference even if the salaries of the temporary employees/Godown staff or the daily wages employees were debited to the borrowers account. For all practical purposes and legal consequences they were placed under the administrative control of National Bank of Pakistan. A somewhat similar question was considered by this Court in the case of Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477. In the precedent case, the services of an employee of Afghan Refugees Organization were terminated after he had rendered more than 10 years of temporary service. A plea was taken that the employees of the said Organization were not Government servants as their salaries were not paid from the Annual Federal Budget and that annual expenditure incurred was reimbursed by the United Nations High Commissioner for Refugees. This Court repelled the contention by holding that employees of the said Organization were civil servants and were entitled to pensionary benefits. 13. The record shows that many of the employees were appointed and re-appointed temporarily or on daily wages for short periods reemployed for same or similar purposes, from time to time, with short breaks .of service. The total length of service of these employees was stretched over a period from 10 years to 20 years. The nature of the functions performed by these employees fell in category-II of the Staff Service Rules which included Assistants/Cashiers/Godown. Keepers/Machine and Telephone Operators. Bank Guards/Chowkidars Messengers and other inferior staff. However, they were recruited on fixed emoluments which were ridiculously lower than the normal pay scales prescribed for the 157 regular incumbents of the posts in that category. The Bank took policy decisions several times for regularization/induction or absorption of such employees and also inducted/absorbed many of them in service on regular basis. The National Bank (Personal Management Wing) (Administrative Division), Headquarters, Karachi, issued a letter dated 7-7-1996 clearly indicating therein that the Central Union Committee in its meeting held on 29-2-1996 at Karachi had decided that 1000 daily wages staff and the temporary Godown staff (700 posts in clerical and 300 posts in non-clerical cadre) as on 29-2-1996 would be absorbed on seniority and provincial quota basis subject to the fulfilment of qualifications prescribed for the posts. It was brought to our notice that on the strength of letter dated 7-7-1996 some of the appointees on daily wages and temporary Godown staff were absorbed by the Bank on regular basis whereas these employees were left out. Again the National Bank of Pakistan, Head Office, Karachi issued Office Circular No.10/2003 dated 1-8-2003 notifying the Memorandum of Agreement arrived at between the Bank and the Collective Bargaining Agents (C.B.A.) for regular absorption of temporary Godown staff and daily wages employees. It was agreed by the respondent-Bank that all persons of clerical staff who had completed three years service with minimum qualification of Secondary School Certificate (Matriculation) or equivalent with a satisfactory record of service would be given employment by the Bank with effect from 15-9-2003 in regular cadre in line with their qualification and experience with a special concession to females and handicapped in whose case the qualifying period of such service was fixed as one year. It was further decided that in case of non clerical staff, such persons if matriculate with minimum five years bank experience as on June, 2002 would be given employment by the Bank with effect from 15-9-2003 in regular clerical cadre in line with their qualification and experience. However, the total number of such regular employment by the Bank to such persons in the regular cadre would not exceed the figure of 1500. The maximum 15 days' gap was permitted between termination and re-appointment. 14. In the case of Zonal Chief National Bank of Pakistan and others (C.P. No.1833-L of 2001) decided on 23-10-2001, the services of a number of such employees were terminated by the Bank while other employees were regularized. The Tribunal reinstated them in service which order was upheld by this Court. In the case of Ghulam Rasool (supra), a Chowkidar of the National Bank was treated to be an employee on stopgap arrangement, therefore, his services were terminated by the Bank. The Tribunal passed an order reinstating him in service which was maintained by this Court and leave to appeal was declined. A some-what similar matter was considered by this Court in the case titled as National Bank of Pakistan and another v. Malik Ali Sher (C.P. No.849-L of 1993) decided on 18-5-1994. In the said case, the respondent Malik Ali Sher was employed by the Bank as a Godown Keeper against a post which was of permanent nature. His services were terminated. The Labour Court reinstated him in service and this Court declined to grant leave to appeal to the Bank. 15. An Islamic Welfare State is under an obligation to establish a society which is free from exploitation wherein social and economic 'justice is guaranteed to its citizens. The temporary Godown staff and the 158 daily wages employees were continued in service of the Bank on payment of meagre emoluments fixed by the Bank. In most of the cases of these employees, there were artificial breaks in their service so as to circumvent the provisions of the Labour Laws and the Rules of the Bank and to deny them the salaries and other service benefits of regular employees. In some cases, the Bank did not issue formal letters of appointment or termination to the employees so as to preclude them to 'have access to justice. There was no equilibrium of bargaining strength between the employer and the employees. The manner in which they had been dealt with by the Bank was a fraud on the Statute. A policy of pick and choose was adopted by the Bank in the matter of absorption/ regularization of the employees. By Article 2-A of the Constitution, which has been made its substantive part, it is unequivocally enjoined 'that in the State of Pakistan principle of equality, social and economic justice as enunciated by Islam shall be fully observed which shall be guaranteed as fundamental right. The principle of policy contained in Article 38 of the Constitution also provide, inter alia, that the State shall secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employers and 'employees and provide for all citizens, within the available resources of the country, facilities for work and adequate livelihood and reduce 'disparity in income and earnings of individuals. Similarly, Article 3 of the Constitution makes it obligatory upon the State to ensure the elimination of all forms of exploitation and the gradual fulfilment of the, fundamental principle, from each according to his ability, to each according to his work. It is difficult to countenance the approach of the Bank that the temporary Godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for an indefinite period. In view of section 24-A of the General Clauses Act 1897, the National Bank was required to act reasonably, fairly and justly. An employee being jobless and in fear of being shown the door had no option but to accept and continue with the appointment on whatever conditions it was offered by the Bank. In the case of Pakistan v. Public at Large PLD 1987 SC 304, it was contended before the Shariat Appellate Bench of this Court that the provisions of law impugned therein amounted to a contract between the Government and the civil servant and thus they involved his consent. It was observed that in fact it as not in the nature of a free consent between the agents. On the one hand, State power was projected in the form of a Statute and on the other, the civil servant had no choice of a bargain on those provisions when joining the service. He could not get it changed. In Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37, it was held that the employer being placed in a position of authority and strength could always coerce employees to waive their legal protection and accept, contractual terms at the pains of losing his job. 16. In Ghulam Abbas (supra a number of Management Trainees were ordered to-be absorbed. It was held that the protection of Labour Laws was available before the Tribunal while dealing with the cases of workmen. In the case of Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101, it was held that even to contract employees could be reinstated in service in appropriate cases if such appointment had become permanent by efflux of time. A similar view was taken in Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935. 159 17. In the present cases we do not consider it necessary to decide the question whether the judgments earlier passed by this Court or the Tribunal in the cases of employees of the Bank were in rem or in personam. However, the principles of distinction between a judgment in rem and a judgment in personam have already been laid. See tine cases of Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34 (S.C.), Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218, M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145, Pit Bakhsh (supra) PLD 1983 SC 684, Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567, Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684. 18. In our view, the conditions of three years length of service with not more than 15 days break between the consecutive appointments and termination of service imposed by the Tribunal for regularization of service of employees are quite reasonable and are also in line with the' policy decisions taken by the Bank itself from time to time. The employees woke up after a deep slumber of more than a decade to seek redress of their grievances. Therefore, it would be unfair and inequitable to grant them monetary hark-benefits of service from the dates of their initial appointment. 19. The employees whose appeals have been dismissed by the Tribunal as time-barred fall in two categories. The Civil Petitions 1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077, 2080, 2164, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 are of the first category in which the appeals against termination from service were dismissed by the Tribunal as time-barred. The delay was sought to be condoned merely on the ground that the orders of their termination from service were void ab initio,. The learned counsel for these employees has failed to satisfy us as to how the orders of termination of service of such employees could be termed as void or without jurisdiction. In the case of Sarfaraz v. Muhammad Aslam 2001 SCMR 1062, it was held that proceedings against a void order were required to be initiated within reasonable time. There is no rule of universal application that in all cases of void orders, question of limitation is to be treated to be a mere 'technicality and a litigant is entitled to invoke the jurisdiction of a Court or the Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay. Reference may also be usefully made' to the cases of Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and two others PLD 1990 SC 692, Dr. Anwar Ali Sahto (supra) and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882. Therefore, the impugned judgment of the Tribunal dismissing the appeals of these employees as time-barred does not warrant interference by this Court. 160 20. However, we find that the appeals in Civil Petitions Nos. 1939, 1991, 1992 and 1995 of 2003 falling in the second category were also dismissed by the Tribunal as time-barred. In these cases, the petitioners had moved the National Industrial Relations Commission under the Industrial Relations Ordinance, 1969, for redress of their grievances for regularization/reinstatement in service. The controversy as to the application of section 2-A of the Act of 1973 remained in a state of fluidity for a considerable period of time. The Tribunal itself had declined to exercise its jurisdiction in old cases. The matter was resolved by this Court in the cases of Syed Aftab Ahmed v K.E.S.C. 1999 SCMR 197, Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92, Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 20QO SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 by holding that section 2-A would operate retrospectively. Therefore, the National Industrial Relations Commission dismissed their petitions whereupon the Bank passed orders dated 2-7-2002, 30-4-2002 and 29-2-2002 of their termination from service. These petitioners filed their appeals before the Tribunal on 6-7-2002, 8-6-2002 and 29-4-2002 after filing the departmental appeals. In the facts and circumstances of these cases, the Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of these petitioners as barred by time and to decline them the relief of reinstatement/regularization in service. 21. For the foregoing reasons:--- (i)' The Civil Petitions Nos. 1772, 1789 to 1795, 1839, 1840, 1841 to 1843, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002,- 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2145, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003 filed by the employees seeking financial back-benefits and waiver of conditions of ,regularization/reinstatement are disposed of with the direction to the National Bank to regularize/absorb them in service with effect from 15-9-2003, subject to the conditions as laid down in para. 10 of the impugned judgment. The National Bank is directed to issue them appointment letters within one month. Moreover, previous service rendered by them with the Bank shall be counted towards retirement/pensionary benefits. (ii) Civil Petitions Nos.1939, 1991, 1992 and 1995 of 2003 of the employees are converted into appeals and the same are allowed. Consequently, the impugned judgment of the Tribunal dismissing their appeals as time-barred is set aside. They are reinstated in service from the date of their termination with back-benefits. They shall be regularized/absorbed in service by the Bank with effect from 15-9-2003 in terms of sub-para I) above. 161 (iii) Civil Petitions Nos. 1909, 1913 to 1915, 1940 to 1942, 1946, 1993 'to 1994, 1996 to 1998, 2074, 2077, 2080, 21.64, 2452 to 2457, 2461, 2482, 2484, 2497, 2498 and 2507 to 2520 of 2003 of the employees as well as the Civil Petitions Nos.2188 to 2432 of 2003 filed by the Bank are dismissed. M.H./I-96/5 Order accordingly. 162 163 2008 S C M R 1118 [Supreme Court of Pakistan] Present: Muhammad Nawaz Abbasi, Muhammad Qaim Jan Khan and Muhammad Moosa K. Leghari, JJ THE STATE and others----Petitioners Versus M. IDREES GHAURI and others----Respondents 164 Criminal Appeals Nos.438 to 442 of 2003, decided on 28th January, 2008. (On appeal from the judgment, dated 9th January, 2002 passed by the Lahore High Court, Lahore, in Criminal Appeals Nos.1913, 1914 and 1915 of 2000). (a) National Accountability Ordinance (XVIII of 1999)--- ----S. 9(a)(vi)---Constitution of Pakistan (1973), Art. 185 (3)---Leave to appeal was granted by Supreme Court as questions raised by both the parties required reappraisal of entire evidence. (b) National Accountability Ordinance (XVIII of 1999)--- ----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority---Illegal gain, absence of---Effect--Act of grant of proprietary rights of land without having power of Collector by itself and without proof of essential ingredients of illegal gain and undue favour would not constitute an offence of corruption and corrupt .practices within the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999. 165 (c) Criminal trial--- ----Essential ingredients---Actus rea and mens rea---Scope---Concept of criminal administration of justice is based on assumption that criminal act is injurious not just to an individual but to society as a whole--Violation of criminal law which is built upon constitutional principles of substantial as well as procedural law, has consequence of punishment---Prosecution in the light of constitutional principle is under heavy duty to establish violation of criminal law to award punishment---Striding of law to bring action within its compass is in conflict with the concept of fair treatment---It is primary duty of the court to ascertain whether alleged offence was outcome of an act which was in violation of some law which can be termed as actus rea of the crime (guilty act) and if this essential element of crime is missing, the breach may not be subject to sanction of criminal law---Person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subjected to prosecution---Mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without proof of concurrence to commit crime, offence is not complete---In addition to such basic components of crime, harm caused in consequence to an act is also considered essential element of crime because act, if is harmless, it may not constitute a crime. (d) National Accountability Ordinance (XVIII of 1999)--- ----S. 9(a)(vi)---Corruption and corrupt practices---Misuse of authority--Object and scope---Prosecution, duty of---Misuse of authority in general, .means wrong and improper exercise of authority for the purpose not intended by law---In order to prove charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus rea of crime have to be necessarily established and in case any one of them is found missing, offence is not made out---Mens rea in context to misuse of authority means to act in disregard of law with conscious knowledge that act was being done without authority of law and 166 except in case of strict liability, element of mens rea is necessary constituent of crime---Offence of corruption and corrupt practices within the meaning of section 9 (a)(vi) of National Accountability Ordinance, 1999, is not an offence of strict liability, therefore, use of. authority without object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence---Mens rea for an offence under S. 9(a)(vi) of National Accountability Ordinance, 1999, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit---In absence of any one of such basic components of crime, misuse of authority is not culpable---Prosecution must establish mens rea and actus reus of crime to establish charge--Without proof of such elements of crime, mere misuse of authority has no penal consequence. (e) National Accountability Ordinance (XVIII of 1999)--- ----S. 9(a)-Expression "corruption and corrupt practices"---Meaning---Corruption is an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain---Expression corrupt practices is series of depraved/debased/morally degenerated acts. (f) National Accountability Ordinance (XVIII of 1999)--- ---Ss. 9(a)(vi) & 14(d)---Misuse of authority---Shifting of onus to accused---Principle--Unless prosecution successfully discharges initial burden of proving allegation in a reasonable manner, accused cannot be called to disprove charge by raising presumption of guilt. 167 (g) National Accountability Ordinance (XVIII of 1999)--- ----S.9(a)(vi)---Misuse of authority---Illegal gain/undue benefit---Proof---No direct or circumstantial evidence was brought on record to suggest that accused exercised his power for consideration of illegal gain or undue benefit for himself or for any other person---Effect---Such case would not fulfil test of S.9(a)(vi) of National Accountability Ordinance, 1999, to justify criminal prosecution. (h) National Accountability Ordinance (XVIII of 1999)--- ----S. 14(d)---Assets disproportionate to known sources of accused---Presumption---Prosecution of a person without distinction of criminal and civil liability in transaction is misuse of process of law and similarly stretching law in favour of prosecution is unjust and unfair---Courts, without ascertaining true character of transaction and drawing distinction in civil and criminal liability, must not proceed to raise presumption of guilt in terms of S.14 (d) of National Accountability Ordinance, 1999. Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel. 168 (i) National Accountability Ordinance (XVIII of 1999)--- ----Ss. 9(a)(vi) & 10---Reappraisal of evidence---Misuse of authority---Illegal gain or pecuniary advantage--Proof---Accused without having powers of Collector, exercised the same and allotted State land to affectees of a Park---Powers of Collector had been notified in favour of accused subsequently---Accused was tried for committing offence of misuse of authority---Trial Court as well as High Court convicted and sentenced accused for committing offence under S. 9 (a) (vi) of National Accountability Ordinance, 1999--Validity---Without any evidence of obtaining any illegal gain or pecuniary advantage for himself or for any other person by dishonest and illegal means, was the result of misconception of law---No basic elements of an offence of corruption and corrupt practices was found in transaction in question within the meaning of S.9(a)(vi) of National Accountability Ordinance, 1999---Conviction and sentence awarded to accused was set aside and he was acquitted of the charge---Appeal was allowed. (j) Islamic jurisprudence--- ----Right to honour---Scope---Right to honour in Islam has been declared a sacred right---Not only violation of such right is punishable and to be compensated but violation is also to be prevented---On one hand protection is to be provided to victim and on the other hand, one who violates such right is made accountable---In criminal administration of justice, this is common principle that in case of liability with penal or quasi penal consequences, oppressive use of law in respect of honour and reputation of a person is not justified and denial of safeguard of just and fair treatment must be prevented in larger interest of justice which is the most fundamental of all rights in Islam and cannot be abridged by any limitation. 169 (k) National Accountability Ordinance (XVIII of 1999)--- ----Preamble---Special law-Scope-Duty of Courts---Protection provided to NAB authorities---Extent--National Accountability Ordinance, 1999, is a special law and use of same in oppressive manner must be tested on the touchstone of fundamental right of a person as guaranteed under the Constitution--Misuse of raw cannot be overlooked or ignored by courts being custodian of the Constitution---Courts are under legal duty to defend, preserve and enforce rights of people and their constitutional guarantees---Notwithstanding protection provided to NAB authorities under the law in respect of their functions, use of power by them in an unbridled manner for prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and courts must prevent such oppressive use of penal law through judicial determination. Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel. (l) Criminal trial--- ----Act done in good faith---Penal consequences---Scope---Act done in good faith, which is not in violation of criminal law and also is not result of criminal motivation, has no penal consequence---If a person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mind. 170 (m) Jurisprudence--- ----Criminal act---Connotation---Violation of criminal law with consequences of some penalty and an action as a result of criminal motivation is called criminal act---Wrong exercise of power or, an act without lawful authority which is not result of any bad motivation is not an act actionable in criminal or administrative law. Mian M. Ilyas, D.F.G. for the State (in Criminal Appeals Nos.438, 439 and 140 of 2003). Sardar Muhammad Ishaq Klian, Senior Advocate Supreme Court for Respondent (in Criminal Appeals Nos.438, 439, 440 of 2003). Sardar Muhammad Ishaq Senior Advocate Supreme Court for Appellant (in Criminal Appeals Nos.441 and 442 of 2003). 171 Mian M. Ilyas, D.P.G. for the State (in Criminal Appeals Nos.441 and 442 of 2003). Date of hearing: 28th January, 2008. JUDGMENT MUHAMMAD NAWAZ ABBASI, J.--- These connected Criminal Appeals bearing Nos.439 to 442 of 2003 involving common questions of law and facts have been directed against two separate judgments rendered on 9-1-2002 by a learned Division Bench of the Lahore High Court, Lahore, in Criminal Appeals Nos.1913 of 2000 and 1914 of 2000 arising out of two independent references pertaining to the same transaction, filed by the NAB under section 18 of the NAB Ordinance, 1999, against Major (R) Tariq Javed Afridi, appellant in Criminal Appeals Nos.441 of 2003 and 442 of 2003 (hereinafter to be called "appellant") and his co-accused Muhammad Idrees Ghauri, since acquitted. 2. The appellant has questioned the legality of the conviction and sentence awarded to him in the above references for committing an offence of corruption and corrupt practices under section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999 whereas the State has filed Criminal Appeals Nos.439 and 440 of 2003 for the enhancement of the sentence of the appellant and Criminal Appeal No.438 of 2003 (arising out of Criminal Appeal No.1915 of 2000 before the High Court) against the acquittal of 172 Muhammad Idrees Ghauri, co-accused of the appellant and we intend to dispose of all these appeals together through this single judgment. 3. The charge against the appellant was that he while posted as Managing Director, Cholistan Development Authority, Bahawalpur, (hereinafter to be referred as the "C.D.A.") by misuse of his official authority, committed an offence of corruption and corrupt practices within the meaning of section 9(a)(vi) read with section 10(a) of NAB Ordinance, 1999 (hereinafter to be called as Ordinance). The coaccused of the appellant was tried on the basis of similar charge. The precise allegation against the appellant was that he having sent a reference to the Board of Revenue (B.O.R.), Government of Punjab, Lahore for conferment of the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter to be mentioned as "Act") and without waiting for the formal sanction of B.O.R., proceeded to exercise .the powers of Collector. The appellant allegedly in collusion with his office Superintendent, Muhammad Idrees Ghouri, acquitted accused, without the knowledge and permission of B.O.R., created a new Chak No.68-Alif/D.B. under Colonization of Government Lands (Punjab) Act,' 1912, to accomplish the ulterior motive of making allotment of State land to the affectees of Lal Sohanra Park with dishonest intention for illegal gain and pecuniary advantage knowingly that there was no allotment scheme of B.O.R. in operation and ban was also imposed on the allotment of State land. 4. The charge against the appellant in the Reference (bearing No.22 of 2000), subject-matter of Criminal Appeals Nos.438, 439 and 441, was framed as under:-- 173 "Firstly that during the period from July, 1998 to March, 2000, you Major (Retd.) Tariq Javed Afridi, son of Malik Nadir Shah Afridi, resident of House No.48-A, Street No.16, Cavalry Ground Extension, Lahore Cantt., above-named accused No.1, while posted as Managing Director, Cholistan Development Authority, Bahawalpur, in collusion and in connivance with you, Muhammad Idrees Ghouri and Muhammad Boota, while posted as Superintendent, Cholistan Development Authority, Bahawalpur and Naib Tehsildar Cholistan Development Authority, Bahawalpur above-mentioned accused Nos.2 and 3 respectively, being holder of public office, knowingly and voluntarily made allotments of the plots which were under your administrative control, to persons who did not qualify the requisite condition for such grants as laid down by the Colonization of Government Land (Punjab) Act, 1912, by exercising powers of Collector under the Colonization of Government Land (Punjab) Act, 1912, which was never conferred upon you (accused, Major (Retd.) Tariq Javed Afridi), by corrupt, dishonest, illegal means and in abuse of your position/authority, and thereby you all above-named three accused acted deceitfully, fraudulently and dishonestly, caused colossal loss to the State exchequer Cholistan Development Authority Bahawalpur and as such committed the offence of corruption and corrupt practices as defined in section 9 punishable under section 10 of NAB Ordinance, 1999 read with schedule of offences appended to the NAB Ordinance read with all the relevant provisions of earlier enactments mentioned in its section 35, within the cognizance of this Court. Secondly, that you Major (Retd.) Tariq Javed Afridi, above-mentioned accused No.1, in collusion and in connivance with you, Muhammad Idrees Ghouri and Muhammad Boota, above named accused Nos.2 and 3, being holder of public office as aforesaid, respectively, knowingly and voluntarily allotted alternate land measuring 20 squares of land which were under your administrative control, to 40 persons, alleged to have been affectees of National Park Lal Sohanra, although they were not genuine affectees and were not entitled to the same by fraudulently and dishonestly changing the list of affectees, by corrupt dishonest illegal means and in abuse of your position/authority, and thereby committed act of corruption and corrupt practices as defined in section 9 and punishable under section 10 and the schedule appended to NAB Ordinance, 1999 read with all the relevant provisions of earlier enactments mentioned in its section 35 within the cognizance of this Court. And I hereby direct that you, above-named three accused, be tried by this Court on the aforesaid charge." 5. The Accountability Court at Lahore on conclusion of trial having found the appellant guilty of the charge under section 9(a)(vi) of the Ordinance, convicted and sentenced him under section 10(a) of the 174 said Ordinance, to R.I. for 3 years with a fine of 2.000 million and in default of payment of fine, he was directed to undergo R.I. for a period of two years. In consequence thereto, the appellant also earned disqualification in terms of section 15 of the Ordinance for a period of 10 years to hold any public office. The appeal filed by the appellant in the High Court was partly allowed, in the following manner:-- "For the foregoing discussion, we hold that the trial Court has rightly convicted the appellant for the offence under section 9(a)(vi) read with section 10(a) of the NAB Ordinance as we uphold this conviction. As regards the question of sentence, we feel that balance must be struck between undue harshness and undue leniency. On behalf of the defence a chart has been placed on the record to show that counting the remissions granted to the appellant from time to time he has undergone sentence of 5 years, 5 months and 26 days. The chart submitted by the prosecution, which is duly attested by the Deputy Superintendent of District Jail, Lahore shows that till 20-9-2001 the appellant had undergone sentence of 4 years, 3 months and 17 days. Thereafter he remained behind the bars for a period of more than three months. As a result of conviction the appellant has already lost his job and otherwise stands disqualified for a period of 10 years to hold any public office as provided under section 15 of the Ordinance. Therefore, we feel that the sentence already undergone by the appellant is sufficient to meet the ends of justice. So far as the sentence of fine is concerned, the prosecution has not been able to show that the appellant had received any pecuniary benefit or advantage on the process of the conferment of proprietary rights of execution of conveyance deeds in favour of allottees. Further there is no evidence on the record to show that the appellant is living beyond his known sources of income, hence the sentence of fine is set aside. The appeal is partly allowed with the above modification in the quantum of the appellant's sentence. He will be released forthwith from the jail if not required to be detained in any other criminal case." 6. In the connected Reference (Reference No.21 of 2000), out of which Criminal Appeals Nos.440 and 442 of 2003 have arisen, the charge was framed as under:--- 175 "That during the period from 13th July, 1998 to 20th March, 2000, you Major (Retd.) Tariq Javed Afridi son of Malik Nadir Shah Afridi, resident of House No.48-A, Street No.16, Cavalry Ground Extension, Lahore Cantt., above-named accused, while posted as Managing Director, Cholistan Development Authority, Bahawalpur, being holder of Public Office, knowingly and voluntarily granted 559 proprietary rights, 78 Conveyance Deeds and 168 Conveyance Deeds about the lands/plots mentioned therein and which were under your administrative control, in violation of Notification dated 19-3-1995, issued by the Secretary Colonies Department Government of the Punjab, by exercising powers of Collector which were never conferred upon you under the Colonization of Government Lands (Punjab) Act, 1912, by corrupt dishonest illegal means and in abuse of your position/authority and thus, allotted deceitfully and dishonestly, and thereby caused colossal loss to the State exchequer, Cholistan Development Authority, Bahawalpur, and as such committed the offence of corruption and corrupt practices within the meaning of section 9, and punishable under section 10 of NAB Ordinance, 1999 and schedule appended thereto read with all the relevant provisions of earlier enactment mentioned in its section 35, within the cognizance of this Court." 7. The trial Court also having found the appellant guilty of the charge in this reference, convicted and sentenced him as under:-- "R.I. for 6 years with a fine of Rs.80,00,000 under section 10(a) of the Ordinance and in default of payment of fine, he was directed to undergo R.I. for a period of three years under section 9(a)(vi) of the NAB Ordinance, 1999, read with section 10(a) of the Ordinance and in default of payment of fine, he was directed to undergo R.I. for a period of three years and also was disqualified under section 15 of the Ordinance for a period of 10 years to seek any public office etc. with benefit of section 382-B, Cr.P.C." 8. The appellant on dismissal of the appeals preferred by him against the conviction and sentence awarded to him by the trial Court before the High Court, has filed two separate appeals before this Court and State also being not satisfied with the judgment of the High Court assailed the same before this Court. Leave was granted in this connected appeals vide order, dated 23-4-2003 as under:-176 "Through the captioned petitions leave to appeal is sought against a common order, dated 19th of January, 2002, whereby a learned Division Bench of the Lahore High Court upheld the conviction of petitioner Major retired Tariq Javed Afridi for offences under section 9(a)(vi) read with section 10(b) of the NAB Ordinance but reduced his sentence to already undergone by him and the sentence of fine was set aside. The precise allegation levelled against petitioner Major retired Tariq Javed Afridi is that in his capacity as M.D. Cholistan Development Authority, Bahawalpur, he had granted proprietary rights/conveyance deeds in favour of as many as 800 persons while exercising powers of Collector which were never conferred upon in terms of Colonization of Government Lands (Punjab) Act, 1912, and in violation of Notification dated 19th of March, 1995. Case of the petitioner before the Accountability Court was that cases for the grant of proprietary rights were pending since long, and he had decided the dame in a bona fide manner on the basis of reports submitted to him from time to time by the concerned revenue field staff and the Colonization Officer/Collector who had endorsed their recommendations in favour of each allottee. As regards the exercise of Collector's powers by him, petitioner's assertion was that he had applied for the conferment of such powers by the Board of Revenue, and during the interregnum, he had been exercising those powers on the assumption that conferment of power was merely a formality which ultimately had to be granted in his favour. It was contended that cases of entitlement of 805 persons had already been determined since 1980, and only consequential orders for the execution of sale-deeds remained to be accomplished. On the point of loss to the national exchequer, it was contended that admittedly an amount of Rs.70 million approximately was realized from aforesaid persons. Kh. Haras Ahmed, Advocate Supreme Court for the petitioner Major retired Tariq Javed Afridi contends that it was merely an irregularity and petitioner's act does not fall within the purview of section .9 of the NAB Ordinance at the most, he could have been proceeded under the Efficiency and Discipline Rules. He 177 next argued that petitioner did not cause any wrongful loss to any institution or authority and did not derive any pecuniary advantage for himself. After hearing the learned counsel in all these petitions, and going through judgments of both the Courts below, we are of the view that questions raised in the petitions filed by Kh. Haras Ahmed, Advocate Supreme Court and Mr. Shaukat Javed Malik, Advocate Supreme Court (Criminal Petitions Nos.63, 61, 64, 146 and 147-L of 2002) require reappraisal of the entire evidence, therefore, we grant leave to appeal in these petitions. As regards Criminal Petition No.170-L of 2002 Hussain and 74 others v. Major Retired Tariq Javed Afridi and another., let it be heard along with said petitions in which leave to appeal has been granted today." 9. Mian Muhammad Ilyas, learned Deputy Prosecutor-General, in support of Criminal Appeals Nos.438 to 440 of 2003, filed by State has contended that the High Court having taken a wrong view of the evidence, reduced the sentence of the appellant in improper exercise of jurisdiction and asserted that in the cases of corruption and corrupt practices falling under section 9(a)(vi) of the Ordinance, the insistence on direct evidence of high standard is not the requirement of law rather on discharge of initial burden by the prosecution, the onus is shifted to the accused to disprove the allegation and on his failure, Court can raise a presumption of his guilt under section 14(d) of the Ordinance and that once an accused facing the charge of corruption and corrupt practices is found guilty, the question whether the evidence of corruption was direct or circumstantial may not be a relevant consideration or a valid reason for taking a lenient view in the matter of sentence. Learned Deputy Prosecutor General argued that apart from the admission of appellant the prosecution has brought ample evidence, oral as well as documentary on the record to establish the charge and in the light thereof, the High Court in appeal in absence of very strong mitigation, was not at all justified to reduce the sentence awarded to the appellant by the trial Court. He asserted that the defence plea of appellant to have not acted in bad faith, would seriously reflect upon his bona fide as nothing is said to be done or believed in good faith, which is done or believed without due care and attention, therefore, the exercise of the power of the 178 Collector by the appellant knowingly that he could not exercise such powers under the law, would give rise to a legitimate presumption that he acted for an ulterior motive and extraneous consideration. In short, the learned Deputy Prosecutor General argued that in the cases under the NAB Ordinance, in absence of any proof of 'bona fide, the presumption of guilt can be raised on the basis of evidence available on record and nominal sentence in such cases, would defeat the purpose and spirit of law. 10. Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court, counsel for the appellant, on the other hand, has contended that the trial Court as well as the High Court without proper appreciation of the evidence available on record, by misinterpreting and misconstruing the provisions of section 14(d) of NAB Ordinance, raised a wrong presumption of guilt of the appellant and argued that there was no evidence direct or circumstantial of an illegal gain or pecuniary advantage which are essential component of an offence under section 9(a)(vi) of the Ordinance. Learned counsel submitted that since an act in absence of element of bad faith and mens rea is not a crime therefore, the presumption of guilt under section 14(d) of the Ordinance, could not be raised for mere reason that appellant without formal authority of law, exercised the power of Collector under Colonization of Government Lands (Punjab) Act, 1912 and forcefully argued that High Court due to the misconception of law, despite having come to the conclusion that appellant did not obtain any illegal gain or pecuniary advantage, was misled in forming the opinion that he was guilty of committing an offence under section 9(a)(vi) of the Ordinance. Learned counsel added the BOR having not reversed the order passed by the appellant by virtue of which proprietary rights were given to the affectees of Lal Sohanra Park and conveyance deeds were executed in their favour, has virtually rectified the irregularity if any in the said orders with the result that the charge, stood vanished and submitted that the appellant on the basis of reports given by the subordinate staff proceeded to pass the orders in the cases, which were pending for grant of proprietary rights since long with the sole object to bring to an end the sufferings of the affectees of Lal Sohanra 'Park, but unfortunately the trial Court as well as the High Court taking an extreme perverse view of the law and facts of the case, held that exercise of Dower of Collector without formal approval of BOR was an act of misuse of authority in terms of section 9(a)(vi) of the Ordinance. 11. The leading facts of the case are that appellant while discharging the functions of Managing Director of Cholistan Development Authority (C.D.A.) also exercised the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 without formal conferment of such powers in consequence to which he was put to face the criminal prosecution for the charge of corruption and 179 corrupt practices. The defence plea of the appellant was that in view of the past practice, he being under the bona fide impression that M.D. C.D.A., was competent to exercise the power of Collector exercised such powers,' which were also subsequently conferred on him, therefore, he committed no offence. In the light thereof, the real question for determination would be whether the appellant assumed the powers of Collector with mala fide intention and for some ulterior motive or he did exercise the power of Collector in good faith without any consideration of illegal gain or undue benefit. There is no cavil to the proposition that an illegal order in a particular set of fact, may have the penal consequence but the question required to be adhered in the present case, was as to whether the act of grant of propriety rights of the land without the power of Collector, by itself would constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance without proof of essential ingredient of illegal gain and undue favour to constitute such an offence and the answer would certainly be in the negative. The concept of criminal administration of justice is based' on the assumption that criminal act is injurious not just to an individual but society as a whole and violation of the criminal law which is built upon constitutional principles of the substantial as well as procedural law, has the consequence of punishment, therefore, the prosecution in the light of constitutional principle is under heavy duty to establish the violation of criminal law to award the, punishment. The striding of law to bring an action within its compass is in conflict to the concept of fair treatment, 'therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act in violation of some law which can be termed as actus reus of the crime (guilty act) and if this essential element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subject to the prosecution. The mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without the proof of concurrence to commit the crime, the offence is not complete. In addition to the ct3ve basic components of a crime, the harm caused in consequence to an act is also considered an essential element of a crime because the act if is harmless it may not constitute a crime. The above components of an offence of corruption and corrupt practices are not traceable in the series of transaction in the present case. 12. The charge against the appellant was that he by misuse of his authority, committed an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general, means wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without authority of law and except in the case of strict liability, the element of 180 mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not been as such defined in the Ordinance but in general terms, the corruption is an act which is done with intent to give some advantage in consistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/ debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt. In the present case, the NAB authorities on the basis of order passed by the appellant by virtue of which land was allotted to the affectees of Lal Sohanra Park, launched prosecution against the appellant for the charge of committing an offence under section 9(a)(vi) of the Ordinance whereas the appellant in his defence plea asserted that he having found that the rights of allottees were acknowledgeable in law, exercised the powers of Collector in a good faith with bona fide intention and perusal of record would show that no direct or circumstantial evidence was brought on record to suggest that appellant exercised the power of Collector for the consideration of an illegal gain or an undue benefit for himself or for any other person and consequently, the case would not fulfil the test of section 9(a)(vi) of NAB Ordinance to justify the criminal prosecution. 13. The allegation without specific evidence that appellant in connivance with his co-accused acted f 181 PLD 2007 Supreme Court 642 Present: Iftikhar Muhammad Chaudhry, C.J., Javed Iqbal Sardar Muhammad Raza Khan, Faqir Muhammad Khokhar, M. Javed Buttar, Nasir-ul-Mulk and Rana Fayyaz Ahmed, JJ PAKISTAN MUSLIM LEAGUE (N) through Khawaja Muhammad Asif, M.N.A. and others---Petitioners Versus FEDERATION OF PAKISTAN through Secretary Ministry of Interior and others--Respondents Constitutional Petitions Nos. 48 and 49 of 2007, decided on 23rd August, 2007. (a) Constitution of Pakistan (1973)--- ----Art. 15---Freedom of movement---Right to enter in the country cannot be denied but a citizen, can be restrained from going out of the country. Mian Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583 rel. (b) Constitution of Pakistan (1973)--- 182 ----Art. 184(3)---Interpretation of Art. 184(3) of the Constitution---Principles---While interpreting Article 184(3) .of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages of the interpretation but regard should be had to the object and purpose for which the Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), the fundamental rights and the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. (c) Constitution of Pakistan (1973)--- ----Art. 184(3)---Exercise of jurisdiction by Supreme Court under Art.184(3) of the Constitution--Not dependent only at the instance of aggrieved party---Scope---Exercise of powers by Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings---Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide. (d) Constitution of Pakistan (1973)--- ----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution to enforce Fundamental Rights---Scope and extent---Principles---Provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case. (e) Constitution of Pakistan (1973)--- ----Art. 184(3)---Invocation of Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Requirement of existence of an aggrieved party---Scope---Under Article 184(3) of the Constitution there is no requirement that only an aggrieved party can press into service this provision---Supreme Court can entertain a petition under Article 184(3) at the behest of any person. 183 (f) Constitution of Pakistan (1973)--- ----Art. 184(3)---Interpretation and scope of Art.184(3) of the Constitution---Article 184(3) is remedial in character and is conditioned by three prerequisites, namely that there is a question of public importance; that such a question involves enforcement of fundamental right, and that the fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution. (g) Constitution of Pakistan (1973)--- ----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the Constitution--Question of `public importance'---Scope and condition---Not every question of public importance which can be entertained by Supreme Court, but such question should relate to the enforcement of Fundamental Rights. (h) Constitution of Pakistan (1973)--- ----Art. 184(3)---Jurisdiction of Supreme Court to entertain petition under Art.184(3) of the Constitution---`Disputed questions of facts'---Scope and extent---Even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached---Where however, intricate disputed questions of facts involving voluminous evidence are involved Supreme Court will desist from entering into such controversies. (i) Constitution of Pakistan (1973)--- ----Arts. 184(3) & 199---Jurisdiction of Supreme Court under Art:184(3) of the Constitution is not bound by procedural trappings and limitations mentioned in Art.199 of the Constitution--Language of Art.184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution.---Supreme Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199, nor by the limitations mentioned in that Article for exercise of power by the High Court in a 184 case. Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC .621; Shahida Zahir Abbasi v. President of Pakistan PLD 1996 SC 632; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref. (j) Constitution of Pakistan (1973)--- ----Art. 184(3)---Invocation of Art.184(3) of the Constitution---Element of `public importance' is sine qua non---Adjective `public' necessarily implies a thing belonging, to people at large, the Nation, the State or a community as a whole---Issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals---Issues, in order to assume the character of public importance must be such that its decision affects the rights .and liberties of people at large---If a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance--Principles. (k) Constitution of Pakistan (1973)--- ----Part II, Chap.1 [Arts.8 to 28]---`Political justice'---Concept of `political justice' floats in Chap. 1 of Part II of the Constitution---Political justice' is very significant and it has been placed in the category of `Fundamental Rights'---Political parties have become a subject-matter of a Fundamental .Right in consonance with the said provision in the Objectives Resolution--Objectives Resolution provides that principles of democracy as enunciated by Islam are to be fully observed. Benazir Bhutto v. Federation of Pakistan PLD-1988 SC 416 ref. (l) Constitution of Pakistan (1973)--- 185 ----Art. 184(3)---Invocation of Art.184(3) of the Constitution---`Political justice'---Matter of public importance---Concept of `political justice' deserves consideration which would be a factor on the basis whereof the jurisdiction as conferred upon the Supreme Court under Art.184(3) of the Constitution can be exercised. Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref. (m) Undertaking--- ----Agreement---Distinction---Undertaking cannot be equated to that of an agreement--Principles. An undertaking cannot be equated to that of an agreement which has its own peculiar characteristics, connotations, import and significance. The striking difference between the two would be the element of enforcement. The agreement can be enforced legally but an undertaking cannot because it has got no legal sanctity behind it. (n) Constitution of Pakistan (1973)--- ----Arts. 184(3) & 199---Constitutional jurisdiction---Scope---Such jurisdiction is not available to enforce the contractual rights and obligations of the parties. 1990 MLD 563; PLD 1992 Lah.68; 1990 CLC 2007; 1990 CLC 560; PLD 1987 Lah. 262; PLD 1986 Quetta 187; PLD 1986 Quetta 181; PLD 1973 Kar. 878; 1971 DLC 250; PLD 1966 Dacca 576; 1985 CLC 2805; NLR 1978 Civ. 1.114; PLD 1969 Dacca 779; PLD 1969 Lah. 823; 1968 SCMR 1136; 1969 DLC 449; 21 DLR 394; 1970 DLC 387; 22 DLR 235; PLD 1962 SC 108; 1962 (2) PSCR 87; 14 DLR (SC) 102; PLD 1958 SC 267; PLR 1958 (2) WP 1369; PLD 1959 SC 147; PLR 1959(2) WP 501; 1959 (1) PSCR 34; 11 DLR (SC) 260; AIR 1953 Punj. 239; AIR 1952 Raj.151; ILR (1951) 1 Raj.755; AIR 1952 Viudh Pra 13 and ILR(195 L)1 Raj 496 ref. 186 (o) Constitution of Pakistan (1973)--- ----Art. 15---Freedom of movement---Every citizen has undeniable right vested in him as conferred under Art.15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint---Undertaking -given by a citizen not to come back to Pakistan having no constitutional legitimacy, such citizen cannot be prohibited from coming to Pakistan--Reasonable restrictions---Powers of Executive---Scope and extent--Principles. Every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. No action detrimental to such Fundamental Rights can be initiated except in due course of law. Citizens of Pakistan can return to their country as no restraint can be placed on a citizen of Pakistan to return to his country. Undertaking given by a citizen not to come back to Pakistan had no constitutional legitimacy, as such citizen cannot be prohibited from coming to Pakistan. Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has been made "subject to any reasonable restriction un-posed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant time but an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in accordance with law. Therefore action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck down as being taken in an unlawful manner. There is no inherent power in the Executive, except what has been vested in it by law, and that law is the source of power acid duty. The structure of the machinery of government, and the regulation of the powers and duties which belong to the different parts of this structure are defined by the law, which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed. From the all-pervading presence of law, as the sole source of governmental powers and duties, there follows 'the consequence that the existence or non-existence of a power or duty is a matter of law and not of fact, and so must be determined by reference to some enactment or reported case. Consequently there are no powers or duties 187 inseparably annexed to the Executive Government. It cannot be argued that a vague, indefinite and wide power has been vested in the Executive to invade upon the proprietary rights of citizens and that such invasion cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Any invasion upon the rights of citizens by anybody no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the; Executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down. It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way as a Fundamental Right. For it is an established principle of British Jurisprudence which may be treated as constituting a part of the Pakistan law also, that no member of the executive can interfere with the liberty or a property of a subject except on the condition that he can support the legality of his action before a Court of Justice. PLD 1973 SC 49; PLD 1969 SC 14; 21DLRE (SC) 1; PLD 1990 Lah. 432; 1990 MLD 1468; PLD 1989 Lah. 175; 1988 CLC 545; 1988 Law Notes 247; 1985 PCr.LJ 360; PLD 1976 Kar. 1257; PLD 1967 Dacca 607; 19 DLR 689; 1990 CLC 1772; 'AIR 1931 PC 248; A.K. Gopalan v. State of Madras AIR 1950 SC 27; 61 Law Journal 171 (203); Kent v. Dulles 357 US 116; Aseerwatham v: Permanent Secretary; Ministry of Defence and External Affiars and others Journal of International Commission of Juristis; Vol. VI, No.2, p.319 and Winter (1965 Part) and Satwant Singh Sawnney v. The Government of India Journal of the International Commission of Juristis, Vol. VIII, No.2, p.134 ref. (p) Constitution of 1'nkistan (1973)--- ----Part II, Chap.1 [Arts. 8 to 28]---Fundamental Rights---Infringement and curtailment of--Scope---Principles---Public interest---No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law---Reasonable restriction---Concept---Scope. 188 The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while interpreting Fundamental Rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable. No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt that reasonable restriction can be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled, powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest. A reasonable restriction is one which is unposed with due regard to the public requirement which it is designed to meet. Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public need which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being .the minimum that is required to preserve the public-interest. Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 1966 Dacca 472 and East anal West Steamship Co. v. Pakistan PLD 1958 SC (Pak) 41 ref. (q) Constitution of Pakistan (1973)--- ----Part II, Chap. 1 [Arts, 8 to 28]---Fundamental Rights---Characteristic. Fundamental Rights guaranteed by the Constitution are not meant merely to be pious enunciations of certain principles supposed to be the basis of the Constitution. The characteristic of a Fundamental .Right is its paramountcy to ordinary State-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional 189 provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of the Fundamental Rights is protected by Article 8(2) of the Constitution which prohibits the state which includes the Legislature not to make any law by which awry Fundamental Right may 'be curtailed or taken away and if any law is made to this effect then to the extent of such contravention it shall be void. It is not liable to be abridged by any legislative or executive orders except the extent provided in Art.233 of the Constitution. Fundamental Rights cannot be waived. No right which is based on public policy, can be waived. Citizens of Pakistan cannot themselves waive out of the various Fundamental Rights which the Constitution grants them. The Fundamental Rights are not to be road as if they included the words subject to a contract to the contrary'. AIR 1952 Punj. 309; ILR 1952 Punj. 381; AIR 1950 SC 27; 1950 SCR 88, PLD 1989 Kar.404; AIR 1951 Hyd. 1; AIR 1951 SC 41; 1950 SCR 869 and PLD 1965 SC 527 ref. (r) Constitution of Pakistan (1973)--- ----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---No Fundamental right can be surrendered yr waived by means of any agreement or undertaking. (s) Constitution of Pakistan (1973)--- ----Part II, Chap. 1 [Arts. 8 to 28]---Fundamental Rights---Concept---Scope. The idea behind the concept of Fundamental Rights is that the preservation of certain basic human rights against State interference is an indispensable condition of free society. The paramountcy to State-made laws is the hallmark of a Fundamental Right. It follows that the aim of having a declaration of Fundamental Rights is that certain elementary rights of the individual such as his right to life, liberty, freedom of speech, freedom of faith acid so on, should be regarded as inviolable under all conditions and that the shifting majorities in the Legislatures of the country should not be able to tamper with them. Absolute and unrestricted individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty. The collective interests of the society, peace and security of the State and the maintenance of public order are of vital importance in any organized society. Fundamental Rights have no real 190 meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibrium has to be maintained between the two contending interests at stake; one, the individual liberties and the positive rights of the citizen which are declared by the Constitution to be Fundamental, and the other, the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society. AIR 1951 All. 257; ILR (1951) 1 All. 269; AIR 1950 SC 27; 1950 SCR 88; AIR 1952 Mad. 613 and PLD 1965 Lah. 642 ref. (t) Constitution of Pakistan (1973)--- ----Art. 15---Interpretation and scope of Art.15 of the Constitution---Freedom of movement--Reasonable restriction---Principles. The language employed in Article 15 of the Constitution, is free from any ambiguity and no scholarly interpretation would be needed. "In interpreting a provision of a Constitution the widest construction possible in its .context, should be given according to the ordinary meaning of .the words used, and the general words should be held to extend to all ancillary and subsidiary matters. A Constitution is not to be interpreted in a narrow or technical manner, and a construction which leads to a legal vacuum is to be avoided". Right conferred upon a citizen is neither absolute nor unlimited but subject to "reasonable .restriction" imposed by law in the public interest which means that this right can be restricted by imposing "reasonable restriction of law" in the public interest. In other words the State has power to impose reasonable restrictions on the right of freedom of movement of a free citizen where such restriction is necessary in the interests of the general public. A restriction is unreasonable if it is for an indefinite or an unlimited period or a disproportionate to the mischief sought to be prevented or if the law imposing the restrictions has not provided any safeguard at all against arbitrary exercise of power. Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. The right to enter in the 191 country cannot be denied but a citizen can be restrained from going out of the country. Citizens of Pakistan have a constitutional right and a sacred prerogative to enter and remain in Pakistan. Where a fundamental right is sought to be restricted by any law, care should be taken that it provides sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by, it. In this respect it must he remembered that though a law may not in terms restrict the exercise of certain right under this Article yet if it has the effect of -doing so, it will be open to challenge. In the case of citizens of Pakistan, there is a fundamental right to enter Pakistan from outside and, therefore, airy restriction of such right will be an invasion of this Article. The imposition of restrictions by requirement of permits, etc., is justified as a reasonable-restriction in the public interest. But a law which subjects a citizen to the extreme penalty of a virtual forfeiture of a citizenship upon conviction for a mere bleach of the permit regulations or upon, a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes a reasonable restriction upon the fundamental right to reside and settle in the country, in the interests of the public. PLD 1959 SC 470; PLR 1960(1) W.P. 253; 11 DLR (SC) 423; 1959 (2) PSCR 275; PLD 1974 Kar. 345; AIR 1953 Assam. 77; ILR (1942)4 Assam 126; 1953 CriL. Jour 657; AIR 1953 Punj. 52; ILR 1952 ' Punj. 362; 1953 Cril. Jour. 421; PLD 1958 Lah 929; PLR .1959 (1)W.P.528; AIR 1964 SC 416; PLD 1957 Lah.388; PLR 1957(1) W.P. 1062; AIR 1961 SC 294; 17 DLR 553; Muhammad Shahbaz Sharif v. Federation of Pakistan PLD 2004 SC 583; AIR 1961 SC 293; AIR 1952 SC 115; 1952 SCR 572; PLD 1969 Lah. 908; PLR 1969 (2) W.P.298; 22 DLR (W.P.) 57; AIR 1952 All. 257; .ILR (1952) 1 All 513; AIR 1952 Cal. 837; 1952 Cri L Jour 1683; AIR 1953 Nag: 185; ILR 1951. Nag. 328; Leo Pfeffer, p. 238; AIR 1954 SC 229 and 1954 SCR 933 ref. (u) Constitution of Pakistan (1973)--- ----Arts. 184(3) & 15---Universal Declaration of Human Rights, Arts. 9 &, 13---International Covenant on Civil and Political Rights, Art.12(4)---Freedom of movement---`Legal restrictions in public interest'---Scope---Laches---Effect---Undertaking given by a citizen of Pakistan not to come back to Pakistan cannot be equated with legal restrictions imposed in `public interest'--Fundamental rights cannot be denied or infringed or curtailed on the ground of laches--Principles. Fundamental Rights cannot be denied or infringed or curtailed on the ground of laches. It depends upon a citizen to exercise such rights when he so wishes and no time limit can be 192 prescribed for claiming such rights because the. Fundamental Rights enshrined in the Constitution are always considered paramount and cannot be curtailed, usurped or infringed by any legislative device or executive measurement, however, it is subject to any reasonable restriction that may be imposed by law in the public interest. The undertaking given by a citizen not to come back to Pakistan cannot be equated to that of "legal restrictions imposed in the public interest". The Fundamental Right granted by Article 15 of the Constitution is backed by international norms. Article 9 of the Universal Declaration of Human Rights declares: that "No one shall be subjected to arbitrary arrest, detention or exile." Furthermore, Article 13 states: "Everyone has the right to leave any country, including his own, and to return to his country." The Human Rights Declaration itself draws its inspiration in this regard from the Magna Carta, which, as early as 121.5, proclaimed: "No man shall be outlawed or exiled ... except by the lawful judgment of his equals or by the law of the land". Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, on all member States of the United Nations and therefore on Pakistan. Although the International Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal force to many of the rights proclaimed in the human Rights Declaration, does not expressly prohibit exile, it codifies the right to return. It's Article 12(4) states that no one shall be arbitrarily deprived of the right to enter his own country". The substance of Article 12(4) implicitly prohibits forcible exile, since an order that would force a person to leave his country would in effect restrict his return to the country and therefore would be in violation of this Article. It is evident that both national and international law forbid forcible exile. For whatever reason, a government cannot force individuals to leave their own country or prohibit their return. Notwithstanding national and international efforts for outlaw political exile, the practice persists in authoritarian and politically under developed societies as an undesirable .legacy of ancient times. No restriction can be imposed on the right of citizens of Pakistan to enter into Pakistan who had given undertaking not to come back to Pakistan, They can come to Pakistan whenever they so desire. The Natives' right to return by Dr. Tariq Hassan ref. Fakhr-ud-Din G. Ebrahim, Senior Advocate Supreine Court, Malik Muhammad Rafique Rajwana, Advocate .Supreme Court, Zain Sheikh, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioners (in both cases). 193 Sahibzada Ahmed Raza Qasuri, Senior Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.1 (in C.P.No.48 of 2007). Raja Muhammad Ibrahimn Satti, Advocate Supreme Court and Arshad Ali Chaudhry, Advocateon-Record for Respondent No.1 (in C.P.No.49 of 2007). Malik Muhammad Qayyum, .Attorney-General for Pakistan, Pir Liaqat Ali Shah, A.G. N.W.F.P., Masood A. Noorani, Actg. A.G. Sindh, Ch. Khadim Hussain Qasier, .Addl. A.G., Punjab, Raja Muhammad Saeed Akram, A.A.G. Punjab and Mahmood Raza, Addl. A.-G. Balochistan (On Court Notice). Date of hearing: 23rd August, 2007. JUDGMENT JAVED IQBAL, J.---This judgment will dispose of the above captioned petitions preferred under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) on behalf of petitioners against their alleged forced exile to Saudi Arabia as similar questions of fact and. law are involved. 2. The following relief has been claimed:- "(i) Declare that the Petitioner No.2 and his family members including his brother Mian Shahbaz Sharif, have the inalienable, unqualified fundamental right to remain in Pakistan and participate in and contest the forthcoming general elections; (ii) Order that the Respondents may not directly or indirectly obstruct, hamper or resist the return of the petitioner No.2 and his family members, including his brother Mian Shahbaz Sharif, to 194 their country, Pakistan, or to force them to live in continued exile; and (iii) Grant such other relief as this Hon'ble Court may deem fit and proper in the interest of justice." (Identical relief has been sought in Constitutional Petition No.49 of 2007 hence reproduction whereof would be of no use). 3. Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court entered appearance on behalf of petitioners and after mentioning the background, achievements and performance of Pakistan Muslim League (N) urged with vehemence that every citizen of Pakistan has a right to enter and move freely throughout the country and to reside and settle in any part whereof without any embargo or restriction which cannot be imposed as the right conferred upon a citizen under Article 15 of the Constitution is inalienable. It is next contended that the petitioners were deported from Pakistan by force and in fact it was a forced exile. Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court has referred Article 19 of the Indian Constitution and also relied upon various judgments from Indian jurisdiction in order to support his esteemed view, as mentioned herein above, such as Ebrahim Vazir v. State of Bombay (AIR 1954 SC 229). Besides that heavy reliance has been placed on the dictum. laid down in case of Mian Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) whereby a declaration was given in an unequivocal term that the right to enter in the country cannot be denied but a citizen can be restrained from going out A of the country and Mian Muhammad Shahbaz Sharif being a citizen of Pakistan has a Constitutional right to enter and remain in the country. It is also contended with vehemence that no agreement whatsoever was executed with the' Government of Pakistan and all the allegations levelled and published in different newspapers are baseless. It is admitted that the undertaking produced by the Government is signed by the petitioners and its authenticity and genuineness was not controverted with the submission that such undertaking cannot be equated to that of an agreement and therefore, it cannot be enforced. It is also contended that no contract could have been executed in violation of the provisions as contemplated in Article 15 of the Constitution and besides that no Fundamental Rights could be surrendered or waived. It is also contended that such undertaking would have no legal sanctity and thus deserves little .consideration.. In order to substantiate his view point reference has been made to the case law enunciated in Benazir Bhutto v. .Federation of Pakistan (PLD 1988 SC 416), Benazir Bhutto v. Federation of Pakistan (PLD 1989 SC 66), Ghulam Sarwar v. Pakistan (PLD 1962 SC 142), Govt. of Pakistan v. Akhlaque Hussain (PLD 1965 SC 527). It is contended firmly that no restriction whatsoever can be imposed on the .Fundamental Rights guaranteed to the petitioners as it would be in violative of the provisions as contemplated in Article, 15 of the Constitution. 195 4. Sahibzada Ahmad Raza Qasuri, learned Sr. ASC entered appearance on behalf of the Federation of Pakistan and vehemently objected the petitions on the ground of maintainability. It is also pointed out shat the petitioners should have invoked the Constitutional jurisdiction under Article 199 of the Constitution as no such petition could have been filed by invoking Article 184(3) of the Constitution, because no point of public importance is involved in the matter. It is next contended that it is an individual grievance which could have been redressed by the learned High Court in exercise of its powers as conferred upon it under Article 199 of the Constitution. It is also pointed out that no prohibitory order has been passed imposing any restriction on the movement of petitioners and their apprehension is based on speculations and conjectural presumptions on the basis whereof no relief can be granted. Sahibzada Ahmad Raza Qasuri, learned Senior Advocate Supreme Court has contended that in fact no cause of action. is available to the petitioners. Learned Senior Advocate Supreme Court invited our attention to the conviction and sentence awarded to petitioner Mian Muhammad Nawaz Sharif in different cases. It is also pointed out that it is not a case of forced exile but on the contrary the petitioner had left the country with his own consent and that too to the choice of his country where he remained for more than six years and no attempt whatsoever was made to come to Pakistan. Had it been a forced exile the petitioner must have approached the forum concerned for the redressal of his grievances which could not be done for the reasons best known to the petitioner on the basis whereof it can be safely inferred that it was not a forced exile. In order to substantiate his view point reference has been made to Zulfigar Mehdi v. Pakistan .International Airlines Corporation (1998 SCMR 793), Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Muhammad Hassan v. Government of Sindh (1980 SCMR 400). It is urged with vehemence that. the Constitution petitions are liable to be dismissed in limine for the reason that the petitioners have not approached this Court with clean hands and have concealed and suppressed the relevant and material- facts and failed to mention that earlier petition on the same subject was dismissed being not maintainable under the provisions as contemplated under Article 184(3) of the Constitution as it pertained to the individual grievance and no question of public importance was involved. 5. Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court entered appearance on behalf of Federation of Pakistan and heavily relied upon the case of Mian Muhammad Shahbaz Sharif (supra) and contended that the petitions are not maintainable under Article 184(3) of the Constitution and the petitioners should have invoked the Constitutional jurisdiction under Article' 199 of the Constitution as conferred upon learned High Court. It is also pointed out that the petitions are hit by laches as-the petitioners got up from a deep slumber after a long period and on this score alone the petitions deserve dismissal. It is also pointed out that the petitioners had not approached this Court with clean hands and suppressed the real facts by concealing that no agreement whatsoever was made while the fact is that they had proceeded Saudi Arabia as a result of deal and the undertaking furnished in this regard has not been controverted. In the beginning of his arguments Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court contended that as per judgment of Liaquat Ali Ghanghro v. Province of Sindh (2007 CLC 923) emergency is still enforced in the country but later on did not press this point. 196 6. Malik Muhammad Qayyum, learned Attorney General at the outset supported the dictum as laid down in case of Mian Muhammad Shahbaz Sharif (supra) with the further submission that it is an inalienable right of a citizen of Pakistan to enter into Pakistan and move freely subject to any reasonable restriction. It is, however, contended that the petitioners had gone abroad at their own and as a result of agreement executed by the petitioners and Saudi Arabia was their own choice where they remained for a considerable long time and as such their voluntary migration cannot be termed as forced exile. It is argued that had it been forced exile the petitioners would have approached this Court for the redressal of their grievances which was not done. It is also pointed out that the petitioners specially Mian Muhammad Nawaz Sharif had never made -any attempt to enter into Pakistan and besides that no prohibitory order has ever been passed restricting the entry of the petitioner in Pakistan. The learned Attorney General has referred case of Benazir Bhutto v. President of Pakistan (PLD 1998 SC 388), Nargis Shaheen v. Federation of Pakistan (PLD 1993 Lah. 732), Nasrullah Khan Henjra v. Govt. of .Pakistan (PLD 1.994 SC 23), Govt. of Pakistan v. Dada Amir Haider Khan (PLD 1987 SC 504) to substantiate his view point.. It is also argued that the petitioners have. failed to honour their commitment and are responsible for the breach of agreement executed to migrate Saudi Arabia so .that .conviction. and sentence .awarded in different cases could be avoided. The learned Attorney General remained critical of their conduct and requested that notice of the same may be taken by the Court as the petitioners have not approached this Court with clean hands. The learned Attorney General has stressed that the petitioners had made a deal with the Government after giving an undertaking that they would not return to Pakistan for a period of ten years and more so they would not participate in the political activities. The learned Attorney General has relied heavily on ,the undertaking given by ,the .petitioners that they would not return to Pakistan and participate in politics for ten years. It is also .contended that since no restriction order was passed the petitioners could have come and no invitation was to be extended by the Government but on their return they will be dealt with in accordance with law. The learned Attorney General has also drawn the attention of this Court towards the dismissal of earlier Constitution Petition bearing No.55 of 2003 filed by Mian Muhammad Shahbaz Sharif which was dismissed by this Court on 7-4-2004, being not maintainable and according to learned Attorney General no direction was given for the return of Mian Muhammad Shahbas Sharif and hence the question of creating any hurdle or implementation of the order which was never passed does not arise. It is also pointed out that the grievances as canvassed on behalf of petitioners would not affect the public at large being personal grievance and as such the jurisdiction as conferred upon this Court under Article 184(3) of the Constitution cannot be exercised. It is stressed time and .again that no question of public importance with reference to the enforcement of Fundamental Rights is involved hence the jurisdiction under Article 184(3) of the Constitution cannot be invoked. 7. The learned Attorney General also mentioned that the sentence of Mian Muhammad Nawaz Sharif was remitted in 2000 but pardon was not granted in hijacking and helicopter cases and the order of fine, disqualification and property confiscation still holds the field. 8. We have carefully examined the respective contentions in the light of the provisions as 197 enumerated in Article 15 of the Constitution and case law enunciated in different cases. First of all we intend to dilate upon the pivotal question qua the maintainability of the above captioned petitions under Article 184(3) of the Constitution. The prime objection of the respondents seems to be that jurisdiction as conferred 'upon this Court, under Article 184(3) of the Constitution cannot be invoked as no question of public importance is involved and therefore, the petitioners should have approached the learned High Court by invoking .Constitutional .jurisdiction as conferred upon it under Article 199 of the Constitution. It is also the case of the respondents that in cases of individual grievances the question of invocation of the provisions as enumerated in Article 184(3). of the Constitution does not arise. It is not the first occasion when the question regarding interpretation of Articles 184(3) and 199 of the Constitution has been raised but on different occasions and in various cases the above Articles were dilated upon, discussed, considered and interpreted. In case of Muhammad Nawaz Sharif v; President of Pakistan (PLD 1993 SC 473) while interpreting the provisions as contemplated under Article 184(3) of the Constitution it was observed as follows:-- "3. In order to appreciate the above controversy, it may be advantageous to quote above clause (3) of Article 184 of the Constitution, which reads as follows.- "184(3). Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article. " A perusal of the above-quoted- clause indicates that without prejudice the provisions of Article 199 of the Constitution, which 'confers a Constitutional jurisdiction on the High Courts, the Supreme -Court has been empowered to make an order of the nature mentioned in the above Article 199 provided the following two conditions are fulfilled:- (i) A question of public importance is involved; (ii) with reference to the enforcement of any of the Fundamental Rights guaranteed by Chapter 1, Part II of the Constitution, i.e. Articles 8 to 28." 9. It was also observed that:-198 "Article 184(3) of the Constitution of Pakistan pertains to original jurisdiction of the Supreme Court and its object is to ensure the enforcemenrt of fundamental rights referred to therein. This provision is an edifice of democratic way of life and manifestation of responsibility casts on this Court as a protector and guardian of the Constitution: The jurisdiction conferred by it is fairly wide and the Court can make an order of the nature .envisaged by Article 199, in a case where a question of public importance, with reference to enforcement of any fundamental right conferred by Chapter 1 of Part II of the Constitution is involved. .Article 184(3) is remedial in character and is conditioned by three prerequisites, namely---- (i) There is a question of public importance. (ii) Such a question involves enforcement of fundamental right, and (iii) The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution." 10. It was further observed in the above mentioned case while interpreting the provisions as contemplated under Article 184(3) of the Constitution as under:- "3. First, we may understand the nature of Article 184(3). This provision confers power on the Supreme Court to consider questions of public importance which are referable to the enforcement of any Fundamental Rights guaranteed by the Constitution and enumerated in Chapter 1 of Part II. This power is without prejudice to the provisions of Article 199 which confer similar power with certain restrictions on the High Court. The power conferred depends upon two questions; one that the case sought to be heard involves question of public importance and two, the question of public importance relates to the enforcement of Fundamental Rights. It is not every question of public importance which can be entertained by this Court but such question should relate to the enforcement of Fundamental Rights. This provision confers a further safety and security to the fundamental rights conferred. and guaranteed 'by the Constitution. This shows the importance which Fundamental Rights have in the scheme of the Constitution. They cannot be curtailed or abridged and any provision of law or action taken which violates Fundamental Rights conferred by the Constitution shall be void. The nature of jurisdiction and the relief which can be granted under this Article is much wider than Article 199. It confers a power to make an order of the nature mentioned in Article 199. The word 199 'nature' is not restrictive in meaning but extends the jurisdiction to pass an order which may not be strictly in conformity with Article 199 but it may have the same colour end the same scheme without any restrictions imposed under it. Article 84 is an effective weapon provided to secure and guarantee the fundamental rights. It can be exercised where the Fundamental Right exists and a breach has been committed or is threatened. The attributes of Article 199 of being an aggrieved person or of having an alternate remedy and depending upon the facts and circumstances even laches cannot restrain the power or non-suit a petitioner from filing a petition under Article 184 and seeking relief under it. The relief being in the nature mentioned in Article 199 can be modified and also consequential reliefs can be granted which may ensure effective protection and implementation of the Fundamental Rights. Even disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been ' breached. However, in case where intricate disputed questions of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. Primarily, the questions involved are decided on admitted or prima facie- established facts which can be determined by filing affidavits. Evidence in support of allegations can be taken orally in very exceptional cases where the breach is of a very serious nature affecting large section of the country and is of great general importance." (Emphasis provided) 11. In case of Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), the provisions as enshrined under Article 184(3) of the Constitution were interpreted in a comprehensive manner after having a comparison between Articles 184(3) and 199 of the Constitution, relevant portion whereof is reproduced herein below:- "3. The above petitions have been filed under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter .referred to as the Constitution. The above provision reads as follows:- "(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is .involved, have the power to make an order of the nature mentioned in the said Article." A perusal of the above-quoted provision of the Constitution indicates that without prejudice to the provisions of Article 199, the Supreme Court has been conferred with the power to entertain a petition under the above provision directly if the following two conditions are fulfilled:- 200 (i) The case involves a question of public importance; and (ii) The question so involved pertains to the enforcement of any of the Fundamental Rights contained in Chapter 1 of Part II of the Constitution. 4. It may further be noticed that if the above two conditions are met the above provision of the Constitution confers power on the Supreme Court to make an order of the nature mentioned in above Article 199 of the Constitution. It may be pertinent to point out that the scope of Article 199, which confers jurisdiction on the High Courts is much wider than the jurisdiction conferred on the Supreme Court under the above-quoted provision of the Constitution inasmuch as a High Court not only can enforce a Fundamental Right under clause (2) of the above Article but call also pass an appropriate order iii the matters covered by sub-clauses (a), (b) of clause (1) of Article 199 of the Constitution, which provide as follows:-- "199.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a) on the application of any aggrieved party, .made an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order- 201 (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful mariner, or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to .hold that office." (Emphasis provided) 5. A High Court; while passing an appropriate order for the enforcement of Fundamental Rights or under the above sub-clauses (a) and (b) of clause (1) of Article 199 of the Constitution, is not required to go into the question, whether the case involves a question of public importance and, secondly, under the above sub-clauses (a) and (b) of clause (1) of Article 199, it is not necessary that the impugned action must be relatable to the enforcement of Fundamental Rights." 12. In case of Shahida Zahir Abbasi v. President of Pakistan (PLD 1996 SC 632) the provisions enumerated under Articles 184(3) and 199 of the Constitution were examined and it was observed as under:-- "From the above discussion it is quite clear that the use of the expression `without prejudice to the provisions of Article 199' in the opening part of Article 184(3) merely indicated that the power of the High Court under Article 199 ibid was left intact and has not been affected by conferment of jurisdiction on this Court to deal directly under Article 184(3) of the Constitution with a case which involved a question of public importance relating to enforcement of fundamental rights guaranteed under Chapter 1 of Part II of the Constitution. The language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated. in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution. is neither bound b the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. The provisions of Article 184(3) of the Constitution are self-contained and they regulate the jurisdiction of this Court on its own terminology. The exercise of jurisdiction by this .Court under Article 184(3) of the Constitution is not controlled by the provisions of Article 199 of the Constitution. I am, therefore, unable to agree with the contention of the learned Attorney-General that provisions of Article 199 ibid are to be read as part of Article 184(3) of the Constitution and therefore, exercise of power by this Court under the latter mentioned Article of Constitution is subject to limitation mentioned in Article 199 ibid. The jurisdiction of this Court under Article 184(3) of tie Constitution is not affected in any manner either by the provisions of section 133 of the Act or by the conditions contained in Article 199(3) of the Constitution. The jurisdiction of this Court in a case under Article 184(3) of the 202 Constitution arises on existence of two conditions mentioned in this Article firstly, that the Court considers that the matter brought before it involves a question of public importance and secondly, that it relates to enforcement of any of the Fundamental. Rights guaranteed under Chapter 1 Part II of the Constitution. Apart from these two jurisdictional requirements, no other consideration are relevant for exercise of power by this Court under Article 184(3) of the Constitution." (Emphasis provided) 13. The element of public importance was also discussed at length and it was observed in case of Shahida Zaheer Abbasi (supra) as under:-- " it is quite clear that whether a particular case involved the element of "public importance" is a question which is to be determined by this Court with reference to the facts and circumstances of each case. There is no hard and fast rule that an individual grievance can never be treated as a matter involving question of public importance. Similarly it cannot be said that a case brought by, a large number of people should always be considered as a case of "public importance" because a large body of persons is interested in the case. The public importance of a case is determined as observed by this Court in Manzoor Ellahi's case, supra, by decision on questions affecting the legal rights and liberties of the people at large, even though the individual who may have brought the matter before the Court is of no significance. Similarly, it was observed in Benazir Bhutto's case, supra, that public importance should be viewed with reference to freedom and liberties guaranteed under Constitution, their protection and invasion of these rights in a manner which raises a serious question regarding their enforcement, irrespective of the fact whether such infraction of right, freedom or liberty is alleged by an individual or a group of individuals. In the case of Employees of Pakistan Law Commission v. Ministry of Works 1994 SCMR 1548, Saleem Akhtar, J., relying on the observations in Benazir Bhutto's case, supra, on the scope of Article 184(3) of the Constitution observed as follows:-- "In Benazir Bhutto's case it was observed as follows:-- The plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is defined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to the enforcement of the rights of a group or a class of persons whose rights are violated. It was further observed that "the inquiry into law and life-cannot, in my view, be confined to the 203 narrow limits of the rule of law in context of constitutionalism which makes a greater demand on judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights, and the directive principles of State Policy so as to achieve democracy tolerance, equality and social justice according to Islam". (Emphasis provided) 14. The question of public importance was also discussed in case Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793) with the following observations:-- "8. In order to confer jurisdiction on this Court to entertain a petition under Article 184 (3) of the Constitution, it is necessary that two jurisdictional requirements must be established. Firstly,. that the question raised in the petition is a question of public importance and secondly, it relates to the enforcement of a fundamental right guaranteed under Chapter 1, Part II of the Constitution (see Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; and Shahida Zaheer Abbasi v. President of Pakistan PLD 1996 SC 632). The expression 'public importance' was interpreted in the case of Manzoor Elahi v. Federation of Pakistan (PLD. 1975 SC 66) as follows:- "Now, what is meant by a question of public importance. The term 'public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to, or belonging to the people; relating to a nation, State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community. As observed by the Judicial Committee of the Privy Council in Hamabai Framjee Petit v. Secretary for India-in-Council (ILR 39 Bom 279) while construing the words 'public purpose' such a phrase, 'whatever else it may mean must include a purpose, that is an object or aim, in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. This definition appears to me to be equally applicable to the phrase 'public importance'. The learned Attorney-General is clearly right in saying that a case does not involve a question of public importance merely because it concerns the arrest and detention of an important person like a Member of Parliament. In order to acquire public importance, the case must, obviously raise a question which is of interest to or affects the whole body of people or an entire community. In other words the case must be such as gives rise to questions affecting the legal rights or liabilities 204 of the public or the community at large even though the individual, who is the subject-matter of the case may be of no particular consequence. (Emphasis provided) Seen in this light, there can be little doubt as to the public importance of the questions arising in this case. I think I will not be far wrong in saying that it is not often that a single case raises so many questions of public importance touching the liberty of the citizen. In all systems of law which cherish individual freedom and liberty, and which provide Constitutional safeguards and guarantees in this behalf, any invasion of such freedom in circumstances which raise serious questions regarding the effectiveness and availability of those safeguards, must be regarded as a matter of great public importance." 15. The provisions as contemplated in Article 184(3) of the Constitution were also interpreted in case of Benazir Bhutto (supra) and it was observed that "Article 184(3) of the Constitution .empowers a Supreme Court to enforce the Fundamental Rights where the question of public importance arises in relation thereto. And if looked at from this angle it is hardly of any importance whether the Executive has passed a prejudicial order or not when the infraction of the Fundamental rights takes place by the operation of the law itself. In this context what would be relevant would be the language of the provisions of the impugned Act itself. It will then 'not be a question of the Court merely granting n declaration as to the validity or invalidity of law in the abstract. An enactments may immediately on its coming into force take 'away or abridge the Fundamental Rights of a person by its very terms and without any further overt act being done. In such a, case the infringement of the Fundamental Right is complete co instant the passing of the enactment and, therefore, .there can be no reason why the person so prejudicially affected by the law should not be entitled immediately to avail himself of the constitutional remedy. To say that a person, whose Fundamental Right has been infringed by the mere operation of an enactment, is not entitled to invoke the jurisdiction of Supreme Court for the enforcement of his right, will be to deny him the benefit of a salutary constitutional remedy which is itself his Fundamental Right. The infractions alleged - cannot be regarded as seeking a declaration in the air or asking the Court to decide, in abstract, and for that matter hypothetical or contingent questions. " 16. It was further observed in case of Benazir Bhutto (supra) while discussing Article 184(3) of the Constitution as follows:- "Another important question mooted for consideration is as to whether the requirement of an "aggrieved party" is spelt out from Article 184(3) of the Constitution. The submission of the learned counsel for the petitioner was. that the word "aggrieved" does not find mention in this sub-Article, and, therefore, it cannot be read into it while that of the learned Attorney-General 205 was that the jurisdiction conferred on the Supreme Court under Article 184(3) is co-terminus with that of Article 199 which by its -sub-Articles 1(a) and 1(c) envisaged the application to be made by an "aggrieved party" and that this requirement should also be read into Article 184(3). In support of his contention, the learned Attorney-General relied on Ch. Manzoor Elahi v. Federation of Pakistan, PLD 1975 SC 66, Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657 and Charanjit Lal Chowdhuiy v, The Union of India and others AIR 1951 SC 41." 17. In the same wake of events it was also observed in case of Benazir Bhutto (supra) that "the plain language of Article 184(3) shows that it is open-ended. The Article does not say as to who shall have the right to move the Supreme Court nor does it say by what proceedings the Supreme Court may be so moved or whether it is confined to the enforcement of the Fundamental Rights of an individual which are infracted or extends to .the enforcement of the rights of a group or a class of persons whose rights are violated. In this context the question arises whether apart from the non-incorporation of sub-Articles 1(a) and 1(c) of Article 199, the rigid notion of an "aggrieved person" is implicit in Article 184(3). as because of the traditional litigation which, of course, is of an adversary character where there is a lis between the two contending parties, one claiming relief against the other and the other resisting the claim. This rule of standing is an essential outgrowth of -Angle-Saxon jurisprudence in which only the person wronged can initiate proceedings of a judicial nature for redress against the wrong doer. However, in contrast to it, this procedure is not followed in the civil law system in vogue in some countries. The rationale of this procedure is to limit it to the parties concerned and to make the rule of law selective to give protection to the affluent or to serve in aid for maintaining the status quo of the vested interests. This is destructive of the rule of law-which is so worded in Article 4 of the Constitution as to give protection to all citizens. The inquiry into law and life cannot, be confined to the narrow limits of the rule of law in the context of constitutionalism which makes a greater demand ort judicial functions. Therefore, while construing Article 184(3), the interpretative approach should not be ceremonious observance of the rules or usages of interpretation,. but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely, the Objectives Resolution (Article 2-A ), the Fundamental Rights and the Directive Principles of State policy so as to achieve democracy, tolerance, equality and social justice according to Islam. " 18. The rule of stare decisis was also discussed in case of Benazir Bhutto (supra) with the following observations:- "As to the choice of the forum, it is no doubt correct that ordinarily the forum of the Court in the lower hierarchy should be invoked but that principle is not inviolable and genuine exceptions can exist to take it out from that practice such as in the case where there was a denial of justice as a 206 result of the proceedings being dilatory. As the human right norm is higher than the law then any violation and its consequent enforcement can only be controlled by an in-built limitation in the provision itself. A rule of practice which has received recognition as a principle of law is not higher than the norm and the machinery for its enforcement, and, therefore, it cannot control judicial power so as to stultify it until, of course, the petitioner has herself, in the strict sense, elected to seek her remedy from a Court of lower hierarchy exercising concurrent jurisdiction. The reason is salutary that at one and the same time the petitioner cannot be allowed to invoke the two forums in regard to the same relief. She has to choose one or the other. However, there can also be an abuse of this practice if there is an indiscriminate filing of petitions b y persons motivated to stultify the exercise of judicial power under Article 184(3) of the Constitution. How then the practice can be strictly adhered to deny to the citizen the remedy under this Article for seeking the enforcement of his Fundamental Rights. The measure of applicability of the practice has to be judged in the light of the particular facts and circumstances of each case. In spite of a Judge's fondness for the written word and his- normal inclination to adhere to prior precedents one cannot fail to recognise that it is equally important to remember that there is need for flexibility in the application of this rule, for, law cannot stand still nor can the Judges become mere slaves of precedents. The rule of stare decisis does not apply with the same strictness in criminal, fiscal and constitutional matters where the liberty of the subject is involved or some other grave injustice is likely to occur by strict, adherence to the rule. Too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law." 19. It was observed in case of Benazir Bhutto (supra) by per Abdul Kadin Sheikh, J. Chat "it is evident from the language of Article 184(3) that it provides a direct access to the highest judicial forum in the country for the enforcement ' of Fundamental Rights. It caters for an expeditious and inexpensive remedy for the protection of the Fundamental Rights from Legislative and Executive interference. It gives the Court very wide discretion in the matter of providing art appropriate order or direction including declaratory order to suit the exigencies of particular situations. There can be no doubt that declaration of Fundamental Rights is meaningless unless there is art effective machinery for the enforcement of the rights. It is the 'remedy' that makes the right real. It is often said that without 'remedy' there is no right. It is for this reason that Constitution-makers provided a long list of Fundamental Rights and the machinery for their enforcement. That machinery is the superior Courts, namely, the High Courts so far as the Provincial territory is concerned, and the Supreme Court at the apex having jurisdiction over the entire length and breadth of Pakistan. 207 Unlike in Article 199, the Framers of the Constitution placed no limitation nor prescribed any condition or stipulation for obtaining relief and redress under Article 184(3). No strait jacket formula was prescribed for the enforcement of the Rights. The obvious reason that can be spelled out is that in case the Supreme Court was itself of the view in a given case that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of -Part II is involved, it should directly interfere, and any rigid formula or strait jacket formula prescribed for enforcement of the Rights would be self defeating. The language of Article 184(3) is "open ended ", and the Framers of the Constitution did not intend any rigid or ceremonious observance of the rules or usage for the enforcement of the Fundamental Rights, by an individual or a group or class of persons." 20. After having discussed the law laid down in the above mentioned cases the judicial consensus seems to be as follows:-- (i) That while interpreting Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i. e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), 'the fundamental rights and' the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. (ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings. Traditional rule of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide. (iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case. (iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. Supreme Court can entertain a petition under Article 184(3) at the behest of any person. 208 (v) That the Article 184(3) is remedial in character and is conditioned by three prerequisites, namely---- * There is a question of public importance. * Such a question involves enforcement of fundamental right, and * The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution. (vi) That it is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. (vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in case where intricate disputed question of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. (viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood incorporated in Article 184(3) of the Constitution. Therefore, this Court I while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article .for exercise of power by the High Court in a case. (McCabe v. Atchison (1914) 285 US 151, S.P. Gupta and others v. President of India and others AIR 1982 SC 149, Standard Vacuum Oil Company v. Trustees of the Port of Chittagong PLD 1961 Dacca 289, Sneed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani v. Government of the Punjab PLD 1972 SC 139, Muhammad Boota and 77 others v. Commissioner, Sargodha Division PLD 1973 Lah. 580, Hakim Muhammad Anwar Babri v. Pakistan PLD 1973 Lah. 817, National Steel Rolling Mills v. Province of West Pakistan 1968 209 SCMR 317, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457, Abanindra Kumar Maity v. A.K. Majumdar AIR .1956 Cal. 273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, K.K. Kochumii v. State of Madras AIR 1959 SC 725, Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9, Messrs East and West Steamship Company v. Pakistan PLD 1958 SC (Palo.) 41 and Waris Meah v. The State PLD 1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990 SC 513, 1990 PLC 61, PLD 1988 SC 416, KLR 1988 SC 423, 1988 PSC 809. 21. On the touchstone of the criterion as mentioned herein above the case of petitioners has been examined. There is no denying the fact that Mian Muhammad Nawaz Sharif was elected twice as Prime Minister of Pakistan by securing a heavy mandate and Mian Muhammad Shahbaz Sharif remained as Chief Minister of Punjab. It is also an admitted fact that during the General Election held in 1997 Pakistan Muslim League (N) obtained about 8.8 million votes and thus it can be inferred safely that Pakistan Muslim League (N) is one of the biggest parties of Pakistan. According to Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court the number of its members is more than four millions but authenticity whereof cannot be determined by this Court. It is, however, also not disputed that Mian Muhammad Nawaz Sharif remained as Prime Minister of Pakistan till 12th October, 1999. Mr. Fakhr-ud-Din G. Ebrahim, learned. Senior Advocate Supreme Court in the case of Mian Muhammad Shahbaz Sharif has referred the order dated 7.4.2004 passed by this Court in Constitutional Petition No.55 of 2003 which was dismissed with the observation that "it is not denied by learned Attorney General for Pakistan and Advocate General Punjab nor so could be denied that Article 15 of the Constitution bestows a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in any part thereof. It is a settled proposition of law that the right to enter in the country cannot be denied but a citizen can be restrained from going out of the country. The petitioner is a citizen of Pakistan and has a constitutional right to enter and remain in the country. " It is an admitted fact that the present Provincial and National Assemblies would complete their term on or about 15th of November, 2007. and General Elections are to be scheduled to be held during the course of this year and therefore, the petitioners .as leaders of a national political party elected twice by the people of Pakistan has every right to return to organize their party and to participate in the General Elections subject to all legal exceptions. We are in agreement with the view of Mr. Fakhr-ud-Din G. Ebrahim, learned Sr. ASC that the party workers of Pakistan Muslim League (N) are eagerly and anxiously waiting for their leaders namely Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif. In the above mentioned scenario if these petitions are examined the only inescapable conclusion would be that the same are maintainable under Article 184(3) of the Constitution. It is, however, to be kept in view that the earlier petition preferred on behalf of Mian Muhammad Shahbaz Sharif was dismissed being non-maintainable as it was filed in his individual capacity and for the redressal of his individual grievances and the element of public importance which is sine qua non for the invocation of Article 184(3) of the Constitution was missing and it is well established by now that the issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume The character of public importance must be such that its decision affects the rights and liberties of people at large. The adjective `public' necessarily implies a thing belonging to people at large, the nation, the State or a. community as a whole. Therefore, if a controversy is raised in which only a 210 particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of public importance. 'Now the position has been changed altogether and the above captioned petitions have been preferred by the Central Working Committee on behalf of Pakistan Muslim League (N) which has got its own import, significance and it has assumed a character of public importance which also involves the question of enforcement of Fundamental Rights. As mentioned herein above while construing Article 184(3) of the Constitution the interpretative approach should not be ceremonious observance of the rules or usages. of interpretation, but regard should be had to the object and the purpose for which this Article is enacted, that is, this interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution, namely the Objectives Resolution (Article 2A), the Fundamental Rights, and the directive principles of State Policy so as to achieve democracy, tolerance, equality and social justice according to Islam. 22. The concept of "political rights" and "political justice" cannot be ignored in such like cases. At a cursory glance one may not find the element of "political justice" in all the .Fundamental Rights guaranteed by the Constitution but an in depth scrutiny would reveal that the concept of "political justice" is floating in Chapter-1 of the Constitution concerning "Fundamental Rights" even otherwise the "political justice" is not a new phenomena and it was observed more than a decade by Mr. K Justice Zaffar Hussain Mirza (as his lordship then was) that "the expression political justice" is very significant and it has been placed in the category of fundamental rights. Political parties have become a subject-matter of a fundamental right in consonance with the said provision in the Objectives Resolution. Even otherwise, speaking broadly on the model of Parliamentary form of representative Government prevalent in United Kingdom. It is also clear from the Objectives Resolution that principles of democracy as enunciated by Islam are to be fully observed. " (Miss Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416}. The concept of "political justice" deserves consideration in such like cases and therefore, it would be an additional factor on the basis whereof the jurisdiction as conferred upon this Court under Article 184(3) of the Constitution can be exercised. 23. We have also adverted to the main stance of learned Attorney General that petitioners had proceeded abroad as a result of an agreement pursuant whereof an undertaking was given that the petitioners would remain in Saudi Arabia, the country of their own choice, and would not participate in the politics for ten years. In order to substantiate the said stance heavy reliance has been placed on the undertaking furnished by the petitioners which is reproduced herein below for ready reference:-- "I, the undersigned, Muhammad Nawaz Sharif, hereby acknowledge- that I approved the gentleman's assistance to negotiate on my behalf for my release from incarceration in Pakistan. I, the undersigned, further acknowledge that I am thoroughly satisfied with the course and results 211 of .the negotiations on my behalf; that I have been kept fully advised on the negotiations; that I have been in full agreement with the negotiations and that I fully agree with and accept the result. (Emphasis provided) Upon my arrival in the country, I have approved to go to, I, the undersigned, hereby covenants and agree that I will not engage in any business or political activities or other activities of any nature whatsoever against the interests of Pakistan or relating to my incarceration in Pakistan for a period of 10 years. (Emphasis provided) Further I the undersigned agree to stay out of Pakistan for 10 years where my residence will be in the country I approved but I will be able to travel on the condition. I will come back to my residence for stay. (Emphasis provided) I, the undersigned, further agree that I will not disclose to any party either the gentleman or the country' involved in my release from Pakistan and relocation to in the approved location except with their prior written consent. Also, I, the undersigned, hereby specifically release all parties involved from any claim of any nature whatsoever I .have or may have had relating to the gentleman negotiating on my behalf and 1ny release from Pakistan and relocation to the country approved by myself." (Signed this 2nd day of December 2000: Both the undertakings made by the Sharif brothers are having the same text). 24. A bare perusal of the undertaking would reveal that certain assurances had been given such as residing in Saudi Arabia and non-participation in political activities in Pakistan for ten years. It is worth mentioning that the authenticity and genuineness of the undertaking duly signed by the petitioners has not been questioned by Mr. Fakhr-ud-Din G. Ebrahim, learned Senior Advocate Supreme Court on behalf of petitioners, however, its evidentiary value and admissibility was objected to seriously. It is to be noted that an undertaking cannot be equated to that of an agreement which has its own peculiar characteristics, M connotations, import and significance. The striking difference between the two would be the element of enforcement. The agreement can be enforced legally but an undertaking cannot because it has got no legal sanctity behind it. For the sake of argument if it is admitted that an agreement was executed by the 212 petitioners even then the question would be as to whether it can be enforced by invocation of Constitution jurisdiction?. The answer would be in negative' for the simple reason that Constitutional jurisdiction. is not available to enforce the "contractual rights and obligations of the parties as it squarely falls within the jurisdictional domain of ordinary courts and no relief can be granted while exercising the Constitutional jurisdiction. The High Court in exercising its writ jurisdiction will be loath to interfere in matters arising out of contractual obligations merely for the purpose' of enforcing contractual obligations notwithstanding the very extensive nature of the power of the .High Court under .that Article. " (1990 MLD 563 (DB), PLD 1992 Lah.68 (DB), 1990 CLC 2007, 1990 CLC 560 (DB), PLD 1987 Lah. 262, PLD 1986 Quetta 187, PLD 1986 Quetta 181 (DB), PLD 1973 Kar. 878 (DB), 1971 DLC 250 (DB), PLD 1966 Dacca 576 (DB), 1985 CLC. 2805, NT.R 1985 Civ. 69, NLR 1978 Civ. 1114 (DB), PLD 1969 Dacca 779 (DB), PLD 1969 Lah. 823 (DB), 1968 SCMR 1136, 1969 DLC 449, 21 DLR 394(DB), 1970 DLC 387, 22 DLR 235 (DB), PLD 1962 SC 108, 1962 (2) PSCR 87, 14 DLR(SC) 102, PLD 1958 SC 267, PLR 1958 (Z) WP 1369, PLD 1959 SC 147, PLR 1959(2) WP 501, 1959 (1) PSCR 34, 11 DLR (SC) 260, AIR 1953 Punj. 23.9, AIR 1952 Raj.151, ILR (1951) 1 Raj.755(DB),AIR 1952 Vindh Pra 13, ILR(1951)1 Raj. 496 (DB). 25. Be as it may, the petitioners being citizens of Pakistan can return to their country as no restraint can be placed on a Pakistani citizen to return to his country and the undertaking given by the petitioners had no Constitutional legitimacy as such the petitioners cannot be prohibited from coming to Pakistan. Every citizen has undeniable right vested in him as conferred under Article 15 of the Constitution to go abroad and return back to Pakistan without any hindrance and restraint but it must be kept in view that it is neither absolute nor unqualified as is indicative from the language employed in Article 15 of the Constitution as a specific mention has beep made "subject to any reasonable restriction imposed by law in the public interest", meaning thereby that such right is subject to the relevant law which is in existence at relevant tone but "an action which is mala fide or colourable is not regarded as action in accordance with law. Similarly, action taken upon extraneous or irrelevant considerations is also not action in .accordance with law. Therefore action taken upon no ground at all or without proper application of the mind of an authority would also not qualify as an action in accordance with law and would, therefore, have to be struck dawn as being taken. in an unlawful manner. " (PLD 1973 SC 49, PLD 1969 SC 14, 21 DLR [SC] 1). It is well settled by now that every citizen has an inalienable right to enjoy the protection of law and to be treated in accordance with law and in particular no .action detrimental to the life, liberty, body, reputation or property of any person shall be taken except P in accordance with. law.. No action detrimental to such Fundamental Rights can be initiated except in due course of law. In this regard we are fortified by the dictum laid down in the following authorities:-- (PLD 1990 Lah. 432, NLR 1990 AC 81.2, 1990 MLD 1468, PLJ 1990 Lah. 380, NLR 1990 Civ. 485; PLD 1989 Lah. 175, 1988 CLC 545, PLJ 1988 Lah. 189, NLR 1988 Civ. 203, 1988 Law Notes 247, 1985 PCrLJ. 360) 213 26. It may not be out of place to mention here that "there is no inherent power in the executive, except what has been vested in it by law, and that lain is the source of power and duty. The structure of the machinery of government, and the regulation of the powers and duties which .belong to the different parts of this structure are defined by the law, which also prescribes, to some extent the mode in which these powers are to be exercised or those duties performed.. From the all prevading presertce of law, as the sole source of governmental powers and duties, there follows the consequence that the existence or non-existence of a power or duty is, a matter of law and not of fact, and so must be determined by reference to same enactment or reported case. Consequently there are no powers or duties inseparably annexed to the executive Government. It cannot be argued that a vague, indefinite and wide power has keen vested in the executive to invade upon the proprietary rights of citizens and that such invasion .cannot be subjected to judicial scrutiny if it is claimed that it is a mere executive order. This is not the position in law. Arty invasion upon the rights of citizens by anybody no matter whether by a private individual or by a public official or body, must be justified with reference to some law of the country. Therefore, executive action would necessarily have to be such that it could not possibly violate a Fundamental Right. The only power of the executive to take action would have to be derived from law and the law itself would not be able to confer upon the executive any power to deal with a citizen or other-persons in Pakistan in contravention of a Fundamental Right. Functionaries of State, are to function strictly within the sphere allotted to them and in accordance with law. No Court or Authority is entitled to exercise power not vested in it and all citizens have an inalienable right to be treated in accordance with law. Therefore, an action of an Authority admitted to be derogatory to law and Constitution, is liable to be struck down. " (PLD 1976 Kar: 1257 (DB), PLD 1967 Dacca 607 (DB), 19 DLR 689, 1990 CLC 1772, 1990 MLD 1468. 27. It is bounden duty of the Executive to respect an ordinary legal right of a subject in the same way as a Fundamental Right. For it is an established principle of British jurisprudence which may be treated as R constituting a part of the Pakistan law also, .that no member of the executive can interfere with the liberty or a property of a subject except on the condition that he can support the legality of his action before a Court of Justice. (AIR 1931 PC 248, A.K.Gopalan v. State of Madras AIR 1950 SC 27, [1952] 61 Yale Law journal 171 [203], Kent v. Dulles 357 US 116, Aseerwatham v. Permanent Secretary, Ministry of Defence and External Affairs and others Journal of the International Commission of Jurists, Vol. VI; No.2, p. 319, Winter (1965 Part) and Satwant Singh Sawhney v. The Government of India Journal of the International Commission of Jurists, Vol. VIII, No.2, p. 134 (December 1967 Part). 28. The Fundamental Rights can neither be treated lightly nor interpreted in a casual or cursory manner but while "interpreting Fundamental rights guaranteed by the Constitution, a cardinal principle has always to be borne in mind that these guarantees to individuals are subject to the overriding necessity or interest of community. A balance has to be struck between these rights of 214 individuals and the interests of the community. If in serving the interests of the community, an individual or number of individuals have to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution, the restrictions can never be considered to be unreasonable. " (Nasirabad Properties Ltd. v. Chittagong Development Authority PLD 196G Dacca 472). 29. No infringement or curtailment in any Fundamental Right can be made unless it is in the public interest and in accordance with valid law. No doubt that reasonable restriction can be imposed but it does not mean arbitrary exercise of power or unfettered or unbridled powers which surely would be outside the scope of "reasonable restriction" and it must be in the public interest. The concept of "reasonable restriction" was discussed in case East and West Steamship Co. v. Pakistan (PLD 1958 SC (Pak.) 41) as follows:- "A reasonable restriction" in the sense of Article 11 is one which is imposed with due regard to the public requirement which it is designed to meet, Anything which is arbitrary or excessive will of course be outside the bounds of reasons in the relevant regard, but in considering the disadvantage imposed upon the subject in relation to the advantage which the public derives, it is necessary that the Court should have a clear appreciation of the public heed which is to be met and where the statute prescribes a restraint upon the individual, the Court should consider whether it is a reasonable restraint, in the sense of not bearing excessively on the subject and at the same time being the minimum that is required to preserve the public interest." 30. It, however, cannot be lost sight of that the "Fundamental Rights guaranteed by the Constitution are not meant merely to be pious enunciations of certain principles .supposed to be the basis of the Constitution. The characteristic of a Fundamental Right is its paramountcy to ordinary State-made laws. They are immune from the pale of legislative enactments and executive actions. They constitute express constitutional provisions limiting legislative power and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation. The sanctity of the Fundamental Rights is protected by Article 8(2) which prohibits the State which includes the Legislature not to make any law by which any Fundamental Right may be cur-tailed or taken away and if any law is made to this effect then to .the extent of such contravention it shall be void. It is not liable to be abridged by any legislative or executive orders except to the extent provided in Art. 233. Fundamental rights V cannot be waived. No right which is based on public policy can be .waived. Citizens of Pakistan cannot themselves waive out of the various fundamental rights which the Constitution grants them. The fundamental rights are not to be read as if they included the words `subject to a contract to the contrary'." (AIR 1952 Punj. 309, ILR 1952 Punj. 381 (FB), AIR 1950 SC 27, 1950 SCR 88, PLD 1989 Kar.404 (DB), AIR 1950 SC 27, AIR 1951. Hyd. 1 (FB), PLD 1989 Kar.. 404 (FB), AIR 1951 SC 41, 1950 SCR 869, PLD 1965 SC 527). 215 31. It is worth mentioning that no fundamental right can be surrendered or waived by means of any agreement or an undertaking as W argued by Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court and Malik Muhammad Qayyum, learned Attorney General for Pakistan because "the idea behind the concept of Fundamental Rights is that the preservation of certain basic human rights against State interference is an indispensable condition of free society. The paramountcy to State-made laws is the hallmark of a Fundamental Right. It .follows that the aim of having a declaration of Fundamental Rights is that certain elementary rights of the individual such as his right to life, liberty, freedom, of speech, freedom of faith and so on, should be regarded as inviolable under all ,conditions and that the shifting majori--ties in the Legislatures of the country should not be able to tamper with them. Absolute and unrestricted individual rights do not exist in X any modern State and there is no such thing as absolute and uncontrolled liberty. The collective interests of the society, peace and security of the State and the maintenance of public order are of vital importance in any organized society. Fundamental Rights have no real meaning if the State itself is in danger and disorganized. If the State is in danger, the liberties of the subjects are themselves in danger. It is for these reasons of State that an equilibriums has to be .maintained between the two contending interest at stake; one, the individual liberties and the positive rights of the citizen which are declared by the Constitution to be Fundamental, and the other, the need to impose social control and reasonable limitations on the enjoyment of those rights in the interest of the collective good of the society. " (AIR 1951 All. 257, ILR (1951)1 All. 269 (FB), (AIR 1950 SC 27,, 1950 SCR 88), AIR 1952 Mad. 613 (DB), PLD 1965 Lah. 642(FB). 32. Now we intend to discuss the provisions as contemplated in Article 15 of the Constitution for the purpose of interpretation which is reproduced herein below for ready reference:-- "Art. 15. Freedom of movement, etc. Every citizen shall have the right to remain in, and, subject to any reasonable restriction imposed by law in the public interest, enter and move freely throughout Pakistan and to reside and settle in any part thereof.'' 33. The language employed in Article 15 of the Constitution is free from any ambiguity and no scholarly interpretation would be needed. `In interpreting a provision of a Constitution the widest construction possible in its context, should be given according to the ordinary meaning of the words used, and the general words .should be held to extend to all ancillary and subsidiary matters. A Constitution is not to be interpreted in a narrow or technical manner, and a construction which leads to a .legal vacuum is to be avoided. " (PLD 1959 Supreme Court 470, PLR 1960(1) W.P. 253, 11 DLR (SC) 423, 1959 (2) PSCR 275, PLD 1974 Kar. 345. 216 34. It is, however, to be rioted that right conferred upon a citizen is neither absolute nor unlimited but subject to "reasonable restriction" .imposed by law in the public interest which means that this right can be restricted by imposing "reasonable restriction of law" in the public interest. In other words "the State has power t o impose reasonable restrictions on the right of freedom of movement of a free citizen where such restriction is necessary in the interests of the general public. Thus the law restricting the movement of prostitutes in a part of the town, or restricting movements of a person under Goonda Act are reasonable restrictions. A restriction is unreasonable if it is for an indefinite or an unlimited period or a disproportionate to the mischief sought to be prevented or if the law imposing the restrictions has not provided any safeguard at all against arbitrary exercise of power. " (AIR 1953 Assam 77, ILR (1942)4 Assam 126, 1953 Cril. Jour 657, AIR 1953 Punj. 52, ILR 1952 Punj.. 362, 1953 Cril Jour. 421(DB), PLD 1958 Lah.929, PLR 1959 (1)W.P.528, AIR 1964 SC 416, PLD 1957 Lah.388, PLR 1957(1) W.P.. 1062(DB), For contrary decision see AIR 1961 SC 29.4, 17 DLR 553). 35. The prime contention of Mr. Fakhr-ud-Din G. Ebrahirn, learned Senior Advocate Supreme Court is that Article. 15 of the Constitution confers a right on every citizen of Pakistan to enter or move freely throughout the country and to reside and settle in airy part thereof without any restraint or hindrance. Before the said contention could be discussed it is noticeable that in case of Muhammad Shahbaz Sharif v. Federation of Pakistan (PLD 2004 SC 583) the provisions as contemplated under Article 184(3) and Articles 15 and 4 of t h e Constitution were discussed at .length with the following observations:-- , "1.6. Clause (3) of Article 184 and sub-clause (c) of clause (1) of Article 199 of the Constitution are for the enforcement of any of the fundamental rights conferred by Chapter 1 of Part IL For their proper appreciation, they are reproduced below:--- "Article 184(3): Without prejudice to the provisions of Article 199, ,the Supreme Court shall, if it considers that a question of public importance with reference. to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved, have the power to make an order of the nature mentioned in the said Article." "Article 199(1,): Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law, - (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing 217 any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred- by Chapter 1 of Part II 17. Articles 199 and 184(3) regulate the jurisdiction of the superior Courts and do not oust it. Perusal of clause (3) of Article 184 unequivocally postulates that two conditions are precedent for invoking said clause. Firstly, the petition must clearly demonstrate that the grievance relates to violation of fundamental rights. Secondly, the violation is of nature of public importance, which- has been interpreted to mean any invasion of individual freedom, liberty, fundamental rights, including effectiveness and safeguard for their implementation. Therefore, having regard to the connotation of the words "public importance", the. facts and circumstances of the each case would have to be scrutinized on its own merits. " 36. While discussing Article 15 of the Constitution if was affirmed that it bestows a right on every citizen of Pakistan to enter or move A freely throughout the country and to reside and settle any part thereof. It A is a settled principle of law that the right to enter in the country cannot be deified but a citizen can be restrained from going out of the country. The petitioners are citizens of Pakistan and .have a Constitutional right and a sacred prerogative to enter and remain in Pakistan. 37. It is, however, to be noted that "where a fundamental right is sought to be restricted by any law, care should be taken that they provide sufficient safeguards against casual, capricious or even malicious exercise of the powers conferred by them. In this respect it must be remembered that though a law may not in terms restrict the exercise of certain right under this Article yet if it has the effect of doing so, it will be open to challenge (AIR 1961 SC 293, AIR 1952 SC 115, 1952 SCR B 572). Be as it may in "the case of citizens of Pakistan, there is a fundamental right to .enter Pakistan from outside and, therefore, any restriction of such right will be an invasion of this Article. The imposition of restrictions by requirement of permits, etc., is justified as a reasonable restriction in the public interest. But a law which subjects a citizen to the extreme penalty of a virtual forfeiture of a citizenship upon conviction for a mere breach of the permit regulations or upon a reasonable suspicion of having committed such a breach can hardly be justified upon the ground that it imposes reasonable restriction upon the fundamental right to reside and settle in the country, in the interests of the public. " (PLD 1969 Lah. 908, PLR 1969 (2) W.P.298, 22 DLR (W.P.) 57 (DB), AIR 1952 All. 257, ILR (1952) .1 All 513(DB), AIR 1952 Cal. 837, 1952 Cri L Jour 1683 (DB), AIR 1953 Nag. 185, ILR 1951 Nag. 328 (DB), The Supreme. Court speaks by Leo Pfeffer, p. 238, AIR 1954 SC -229, 1954 SCR 933). 218 38. We have also adverted to the contention of Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court that the petitions are hit. by laches and deserve dismissal on this score .alone. We are not persuaded to agree .with Raja Muhammad Ibrahim Satti, learned Advocate Supreme Court because Fundamental Rights cannot be denied or infringed or curtailed- on the ground of laches. It depends upon a citizen to exercise such right when he so wishes and no time limit can be prescribed for claiming such right. because .the Fundamental Rights enshrined in the Constitution are always considered paramount and C cannot be curtailed, usurped or infringed by any legislative device or executive measurement, however,. it is subject to .any reasonable restriction that may be imposed by law in the public interest. No such reasonable restriction could be pointed out by the learned Attorney General for Pakistan imposed on the petitioners by law in the public interest. The undertaking as mentioned herein above cannot be equated to that of "legal restrictions imposed in the public interest". "The fundamental right granted by Article 15 of the Constitution is backed by international norms. Article 9 of the Universal Declaration of Human Rights declares: "No one shall be subjected to arbitrary arrest, detention or exile. " Furthermore, Article 13 states: "Everyone has the right to leave any country, including his, own, and to return to his country." The Human Rights Declaration itself draws its inspiration in this regard from the .Magna Carta, which, as early as 1215, proclaimed: "No ... man shall be outlawed or exiled ... except by the lawful judgment of his equals or by the law of the land ". Although the Human Rights Declaration is not a legally binding treaty, its provisions are considered customary international law and binding, as such, ort all member States of the United Nations and therefore on Pakistan. Although the International Covenant on Civil and Political Rights (ICCPR), the treaty that gives legal, force to many of the rights proclaimed in the Human Rights Declaration, does not expressly prohibit exile, it codifies the right to return. It's Article 12(4) states that "no one shall be arbitrarily deprived of the right to enter his own country ". The- substance of Article 12(4) implicitly prohibits forcible exile, since an order that would force a person to leave his country would in effect restrict his return to the country and therefore would be in violation of this Article. It is evident that both .national and international law forbid forcible exile. For whatever reason, a government cannot force individuals to leave their own country or prohibit their return. Notwithstanding national and international efforts to outlaw political exile, the practice persists in authoritarian and politically tinder-developed societies as an undesirable legacy of ancient times. (The natives' right to return by Dr. Tariq Hassan). 39. The upshot of the above mentioned discussion is that no restriction can be imposed on the right of the petitioners to enter into Pakistan and they can come to Pakistan whenever they so desire. These are the reasons for our short order dated 23-8-2007 which is reproduced herein below for ready reference:-- "For reasons to be recorded separately, both the captioned petitions, being maintainable, are accepted. 219 2. It is declared that Mian Muhammad Nawaz Sharif and Mian Muhammad Shahbaz Sharif, under Article 15 of the Constitution of Islamic Republic of Pakistan, 1973 have an inalienable right to enter and remain in country, as citizens oh Pakistan. Their return/entry into country shall not be restrained, hampered or obstructed by the Federal or Provincial Government Agencies, in any manner." M.B.A./P-18/S Order accordingly. 220 221 P L D 1988 Supreme Court 6458 [ Shariat Appellate Bench] Present: Muhammad Afazal Zullah, Chairman, Pasim flaaan Shah, Shafiur Rahman, Pir Muhammad Karam Shah and Maulana Muhammad Taqi Usmani, JJ FEDERATION OF PAKISTAN through Secretary Ministry of Interior, Government of Pakistan, Islamabad--Appellant 8 www.Pakistanlawsite.com visited 3 June 2012. 222 versus THE GENERAL PUBLIC--Respondent Shartat Appeal No.17 of 1984, decided on 17th January 1988 (On appeal from the Judgment dated 27-3-1983 of the Federal Shariat Court, Islamabad, passed in S.S.M. No.82 of 1983). (a) Islamic Jurisprudence----Human rights--Limitations--Limitations on human rights must be subordinated to the most fundamental of all the human rights in 223 Islam, the one which cannot at all be abridged by any limitation; namely, right to justice. [p. 655] A Pakistan v . Public at Large P L D 1986 S C 240; Verses 107 and 108 of Surah (IX) "Tauba"; Almaida, Verse 33 of Sura (V); Ahkam ul Quran, Vol. 2 p.596 by Ibn-e-Arabi; (Almanar, Vo1.6, p.293); A1-Quran-ul-Hakeem by Maulana Abdul Majid Daryabadi; Tadabbur-ul-Quran, Vo1.2, pp.278-9; Pakistan v. Public at Large PLD 1987 S C 304 and Capt. (Retd.) Abdul Wajid and others v . Federation of Pakistan P L D 1988 S C 167 ref. (b) Constitution of Pakistan (1973)-- 224 ---Arts.203-D & 203-F--Security of Pakistan Act (XXXV of 1952), Ss.ll-A, 11-B & 11-C--Repugnancy to injunctions of Islam--Legislative control on exercise of property rights in the relevant provisions was found justified on the touchstone of the Islamic Injunctions on the one hand by Federal Shariat Court and on the other it was ordered to be omitted on the ground only of harshness--Held, proper course was to remove the harshness with the aid of the Islamic Injunctions regarding another fundamental right guaranteed by Islam; namely opportunity of . showing cause against abridgment of a basic right here, of property--Supreme Court declined to uphold the judgment of Federal Shariat Court in so far as provisions of Ss.ll-A, 11-B & 11-C were concerned. [p. 657] B, D & E 225 Pakistan and others v . Public at Large P L D 1987 S C 304 and Province of Sind v. Public at Large P L D 1988 S C 138 ref. (c) Constitution of Pakistan (1973)----Arts.203-D & 203-F--Repugnancy to injunctions of Islam--Remedial amendment of relevant provisions--Government/Legislature can be allowed option to make necessary amendment, consistent with the spirit of the Constitutional provisions in this behalf and serious consequences can be saved, by the Court permitting the amendment to be indicated in its judgments, with or without conditions--Such practice would, however, be possible only if such amendment has positive nexus with the provision in 226 question; and, supplies the omission without which it would remain repugnant to the injunctions of Islam. [p. 657] C (d) Constitution of Pakistan (1973)----Arts.203-F & 203-D--Security of Pakistan Act (XXXV of 1952), Ss.ll-A, 11-B & 11-C--Repugnancy to injunctions of Islam-Amendments can be made in the provisions on the two points (i) opportunity of hearing at various stages where right to own, possess and enjoy property is affected, and (ii) the final adjudication by judicial forum while keeping in mind the Supreme Court Judgment in Pakistan and others v . Public at Large P L D 1987 S C 304. 227 Amendments can be made in the provisions in question, on both the points--one, opportunity of hearing at various stages where right to own, possess and enjoy property is affected; and, two, the final adjudication by judicial forum. They would be in accord, mutatis mutandis, with the amendments which were indicated for the Press and Publications Ordinance, 1963. Before the preparation of this judgment, the hearing of Shariat Appeal No.18-R of 1984 regarding Press and Publications Ordinance having taken place, it was partly allowed. The judgment of Supreme Court in that appeal shall be kept in mind when considering the amendments to be 4nade in the provisions in question of the Security of Pakistan Act. [p 6581 F 228 The judgment of the Federal Shariat Court to the extent it held the entire provisions contained in sections 11-A, 11-B and 11-C of the Pakistan Security Act, 1952 as against the injunctions of Islam and directed their "omission" from the statute, is set aside. The provisions shall continue to remain on Statute book only if the necessary amendments /provisions are made therein with regard to right of opportunity of hearing and right of appeal before and or final adjudication by a judicial forum, whenever an action is proposed to be taken or is taken, under the provisions in question. It would also be in accord with the principles contained in the Holy Qur'an and the Sunnah as discussed in the impugned judgment that the words; "where the Federal Government is of the opinion that ..." are substituted by the words "where the Federal Government is satisfied that ....". The right 229 of opportunity of hearing would ordinarily be provided prior to the adverse action proposed to be taken under those provisions. However, exception can be made to the effect that in case of emergency this opportunity shall be afforded as soon after the action as possible. Adequate provision can also be made regarding the manner of affording the opportunity of hearing at the original and appellate stags. [p. 663] K (e) Islamic Jurisprudence----Right of hearing--Dispensation--Principle. As a corollary to the right of hearing, acknowledged in Islam, one so-called variation (there may be others) can be 230 visualised that whenever it is known to the extent of certainty that if and when an opportunity is afforded, the person concerned "surely" would take a certain position already taken as his defence, the formalities of summoning him again for a repetitive performance, could be dispensed with. Application of this principle would depend upon the circumstances of the situation vis-a-vis the Law, each case and particular action. [p. 662] G Pakistan and others v. Public at Large P L D 1987 S C 304; A1-Tauba, Verses 107 and 108; N.-W.F.P. v._ Hussain Pari PLD 1988 SC 144 and Pakistan v. Public at Large PLD 1986 SC 240 ref. (f) Constitution of Pakistan (1973)-231 ---Arts.203-D & 203-F--Security of Pakistan Act (XXXV of 1952 ), Preamble--Power of Federal Shariat Court and Supreme Court to decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam--Such repugnant law ceasing to have effect on the day on which the decision of the Court "takes effect" Under Article 203-D the Federal Shariat Court has the jurisdiction to decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam. The word "law" here means all laws, made by any law-making organ or agency, except those laws which are excluded by the definition of law as contained in Article 203-B (c). Thus, barring those exceptions, any law made by the Legislature including 232 the Pakistan Security Act, 1952, could be lawfully examined under Article 203-D. If as a result of this examination and decision of the Court, such law is held by the Court to be repugnant to the injunctions of Islam, it would "cease to have effect" on the day on which the decision of the Court "takes effect". Same is the power of the Supreme Court in appeal preferred under Article 203-F. [p. 662] H Pakistan v . Public at Large P L D 1986 S C 240 ref. (g) Constitution of Pakistan (1973)----Arts.203-D & 203-F--Repugnancy to injunctions of Islam--Exception with regard to right of opportunity of hearing made by legislature in a provision of law--Held, if the 233 exception or for that matter its purpose, runs counter to "injunctions of Islam as contained in the Holy Qur'an and the Sunnah", Supreme Court and Federal Shariat Court would be competent to take the necessary decision and declare such provision under Art.203-D/203-F of the Constitution as repugnant to injunctions of Islam. [p. 662] I (h) Constitution of Pakistan (1973)----Arts.203-F, 203-D & 187(1)--Powers of Shariat Appellate Bench of Supreme Court highlighted. When the Shariat Appellate Bench of the Supreme Court determines matter brought before it under Article 203-F read with 234 Article 203-D of the Constitution, except for the relevant limitations contained in Chapter 3-A of the Constitution, it continues to be the same Supreme Court as is visualized under Part VII, Chapter 1 of the Constitution. In that context it has the power under Article 187(1) "to issue such directions, orders or decrees as may be necessary for doing ,complete justice in any case or matter pending before it". Apart from other conditions the expression "complete justice" in the context of the jurisdiction of the Court under Article 203-F read with Article 203-D would have to be in accord with the principles contained in or derived from the Islamic injunctions as contained in the Holy Qur'an and the Sunnah.- [p. 663 ] J 235 B . Z . Kaikaus v . Federal Government of Pakistan and others PLD 1982 S C 409 and Abdul Hameed v. The State P L D 1983 S C 130 ref. Dr. Riazul Hasan Gilani, Deputy Advocate-General and Ch. Akhtar Ali, Advocate-on-Record for Appellant. Nemo for Respondent. Date of hearing: 17th January, 1988. JUDGMENT MUHAMMAD AFZAL ZULLAH (CHAIRMAN).--This appeal under Article 203-F of the Constitution is directed against Judgment dated 27-3-1984 of the Federal 236 Shariat Court; whereby under Article 203-D of the Constitution on suo motu examination of certain laws including the Pakistan Security Act (XXXV of 1952), some provisions thereof were declared to be repugnant to the injunctions of Islam. 2. The laws examined, which are of similar character, are as follows:- . (1) The Sind Crime Control Act IV of 1974; (2) The Prevention of Anti-National Activities Act VII of 1974; (3) The Punjab Maintenance of Public Order Ordinance XXXI of 1960; 237 The Sind Maintenance of Public Order Ordinance XXXI of 1960; The Baluchistan Maintenance of Public Order Ordinance XXXI of 1960; The West Pakistan Maintenance of Public Order Ordinance XXXI of 1960 (Applicable to N.-W.F.P.); (4) The Punjab Control of Goondas Ordinance XXXV of 1959; The Baluchistan Control of Goondas Ordinance XXXV of 1959; The West Pakistan Control of Goondas Ordinance XXXV of 1959 (Applicable to N.-W.F.P.); (5) The Security of Pakistan Act XXXV of 1952; 238 (6) The West Pakistan Press and Publications Ordinance XXX of . 1963. 3. The provisions of the Pakistan Security Act, 1952, which were held repugnant to the injunctions of Islam wholly or partly, read as follows: "11-A. (1) Where the Federal Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing, publishing or otherwise disseminating news, reports or information, likely to endanger the defence, the external affairs or the security of Pakistan, or any part thereof, or for the purpose of promoting such interests of any foreign State as are in conflict with 239 the interests of Pakistan, it may, by order, remove the owner or, if there be more than one, all or any of them, and, in the case of a company, all or any of the directors, managing directors, managing agents or any other person., from the control or management of such undertaking, and appoint a person to take possession of the whole or any part of the undertaking or its property, movable or immovable, and exercise such powers and perform such duties, including, in the case of a company, all or any of the powers or duties of the Board of Directors, as may be set down in the order, and such appointment may at any time be revoked, and a fresh appointment made on such conditions and with such limitations as the Federal Government may determine. 240 (2) Where an order has been made under subsection (1), the Federal Government, or any authority or person authorized by it in this behalf, shall, as soon as possible, make arrangements to transfer, subject to such conditions as may be deemed fit, and transfer. by way of sale, in any manner considered expedient, any right, title or interest in the undertaking, or if the undertaking be a company, in the shares thereof, of any director or shareholder to any other person not acting for or on behalf of or in collusion with. such director or shareholder. (3) Every sale under subsection (2) shall be subject to confirmation by the Federal 241 Government, and such confirmation shall be notified in the official Gazette. (4) If such undertaking as aforesaid be a company, the Federal Government may give a direction that the shares held by every or any director or shareholder shall be seized, wherever the shares may be, for sale under subsection (2), in such manner that such director or shareholder shall effectively cease to hold them. (5) Where possession has been taken under subsection (1), or a direction has been given in pursuance of subsection (4), any police officer may seize any property of the undertaking, or the shares thereof, or any document relating thereto, found anywhere in Pakistan, and any Magistrate 242 may, by warrant authorize any police officer not below the rank of Sub-Inspector, to enter upon and search for any such property, share or document in any premises where the same may be or may reasonably be suspected to be. (6) The Federal Government, or any authority or person authorized by it in this behalf, may, by order, make such arrangements as may be considered expedient to ensure that the continuity of the functioning of the undertaking affected by an order under subsection . (1) is not interrupted during the period between the date of such order and the date on which the person appointed under subsection (1) makes over the control and management of the undertaking under subsection (5) of section 11-B, and any 243 expenditure incurred in connection with such arrangements, including the remuneration of any person or persons, shall be met as the expenses of the undertaking. (7) If within fourteen days of the promulgation of the Security of Pakistan (Amendment) Ordinance, 1961, or the publication of a notification under subsection (3), the person whose right, title or interest has been transferred by sale, or the person to whom the sale has been made, makes to the Federal Government a representation against the sale, the Federal Government, after perusal of the record, may, subject to such conditions as it may deem fit to impose, set aside the .sale and order a fresh sale. 244 Explanation (I).--A fresh sale under this subsection shall be deemed to be a sale under subsection (2). Explanation (1I).--The Federal Government shall not be bound to hear any of the parties or their counsel or agent or to examine any witness or document, before making an order under this subsection. (8) Before a sale is set aside under subsection (7), the Federal Government may require the person making the representation to pay an amount sufficient to meet the expenses of the stile, and to forfeit to the Federal Government such other amount, not exceeding twenty-five per cent of the sale price, as may be determined by the Federal Government. 245 (9) If the purchaser fails to pay the full price of the sale, the property may be resold, and any deficiency which may happen on resale and all expenses attending such resale may be recovered from him. (10) Any amount payable under this section, whether as unpaid price, or as forfeiture or otherwise, if not paid within the time specified, if any, shall be recoverable as arrears of land revenue. (11) The sale shall be complete after all proceedings under this section relating to sale or resale, as the case may be, have been concluded and all sums due from the purchaser in whose favour the sale has 246 been concluded have been paid by or recovered from him. 11-B.- (1) On the completion of sale the Federal Government or the authority or person, as the case may be, arranging the sale shall deliver possession of the property, or in the case of shares, of the certificates relating thereto, to the purchaser, supported by a sale certificate. (2) If in consequence of the action taken under subsection (1) of section 11-A, the Board of Directors of a company has ceased to function, the person appointed thereunder shall, immediately after the delivery of possession under subsection (1), call, notwithstanding anything to the contrary in the Companies Act, 1913, or 247 the constitution of the company, by public advertisement, a general meeting of the company to be held under his chairmanship for the purpose of electing directors. (3) A meeting called under subsection (2) shall, as far as practicable, be held and conducted in accordance with the Articles of Association of the company. (4) On the conclusion of a meeting held under this section, a record of the proceedings shall be made and certified by the Chairman, and such certificate shall be conclusive proof of the directors named therein having been validly appointed. 248 (5) Immediately after the record of proceedings is certified under subsection (4), the control and management of the company shall be made over to the directors. 11-C.- (1) Any amount realized as price from a sale, or from a fresh sale, as the case may be, under section 11-A, shall, after deducting the expenses of the sale, be paid, within such time as may be specified by the Federal Government, to the person whose right, title or interest has been transferred by such sale. (2) Where the shares of more than one person have been sold in a single lot, the amount payable shall, with the shareholders' consent, be paid to them 249 against a joint discharge, and in the absence of such consent, the amount shall be paid to each shareholder in proportion to the paid amount of his shares. (3) If the person to whom any right, title or interest, is transferred under section 11-A has deposited any moneys before the sale to him is set aside, the amount so deposited or paid shall, after deducting the amount, if any, due from such person under any of the provisions thereof, be refunded to him, and thereupon .all documents executed and endorsements made in his favour shall stand cancelled. 4) Where, in order to effect the transfer of any property, instrument or share, any document or endorsement is required to be 250 executed or made by a person whose right, title or interest, is transferred, the Federal Government or any authority or person authorized by it in this behalf, may execute such document or make such endorsement, and any document so executed and endorsement so made shall be deemed to have been executed and made by the person whose right, title or interest is so transferred, and shall be conclusive proof of such transfer for all purposes. (5) In this section, and in section 11-A, the expression 'expenses of the sale' shall include expenditure incurred in connection with any dispute arising out of the sale, and such other expenditure as the Federal Government may determine to be such expenses. 251 (6) The provisions of this section and sections 11-A and 11-B shall have effect notwithstanding anything to the contrary contained in any law other than this Act, or in any instrument, deed or document. (7) For the removal of doubt it is hereby declared that where a person appointed under subsection (1) of section 11-A is required to exercise the powers or perform the duties of the Board of Directors of a Company, the provisions of the Companies Act, 1913, shall, as respects duties not expressly set forth in the order under subsection (1) of section 11-A, not apply to him. 252 12. Regulation of publication of certain matters.--(1) Where the Federal Government is satisfied that in the interest of the defence, the external affairs or the security of Pakistan it is necessary so to do, the Federal Government or any authority empowered by it in this behalf may, by order addressed to a printer, publisher or editor, or printers, publishers or editors generally, require that all matters relating to a particular subject or class of subjects affecting the defence, the external affairs or the security of Pakistan shall, before being published in any document or class of documents, be submitted for scrutiny to any authority specified in the order, who shall, within seventy-two hours of its submission, either approve of its publication or, if it is satisfied that it is likely to prejudicially affect the defence, the external affairs or the security of Pakistan prohibit it and no matter the 253 publication whereof has been so prohibited shall be published. (2) Any person affected by an order under subsection (1) prohibiting the publication of any matter may, within seven days of the communication of the order, appeal against it to the District Judge of the district in which such person resides. Provided that where appeals against the same order have been made by persons who reside in different districts all such appeals shall be preferred to the senior of the District Judges of such districts. Explanation.--A person shall be deemed to reside in the district which he ordinarily 254 resides or carries on business or personally works for gain. (3) The District Judge to whom an appeal has been made under subsection (2) shall, after giving the appellant an opportunity of being heard, consider the appeal as speedily as possible and pass such orders thereon as he may deem fit; and the orders shall be final. (4) If any person contravenes any order made under subsection (1), then, without prejudice to any other proceedings which may be taken against such person, the Federal Government may declare to be forfeited to Government every copy of any document published or made in 255 contravention of such order and any press used in the making of such document." (Section 12 as amended in pursuance of the impugned judgment) 4. Sections 11-A, 11-B and 11-C were found repugnant to the injunctions of Islam and direction was given for their "omission". Section 12 was found partially repugnant and was ordered to be amended accordingly. Federation of Pakistan felt aggrieved by this part of the Judgment and filed this appeal. 5. Learned Deputy Attorney-General has stated that the Government has accepted the decision regarding section 12 of the Act and amendment has been made accordingly. 256 Therefore, only sections 11-A, 11-B and 11-C are now the subject-matter of this appeal. 6. He raised two-fold contentions; one, that no reference has been made to injunctions of Quran and Sunnah in the impugned Judgment, therefore, as laid down by this Court in Pakistan v. Public at Large (P L' D 1986 S C 240) it is liable to be set aside. And two, that the Security of Pakistan Act having been approved generally and found not repugnant to the injunctions of Islam in the detailed discussion in the impugned Judgment, the provisions in Sections 11-A, 11-B and 11-C have been held repugnant only on the ground of "harshness", without justifying it on the touchstone of the injunctions of Islam. 257 7. When questioned, whether these provisions could not be treated as repugnant to the injunctions of Islam on the ground of negation of the right of the opportunity of hearing, before action thereunder is taken, he relied on verses 107 and 108 of Surah (IX) Tauba", relating to iMasjid-i-Zarar, to contend that in the context of 'security' that right can be dispensed with. In this behalf he also contended that the wisdom and intention of the legislature in making an exception to a .general rule cannot be questioned before the Federal Shariat Court; nor, could it exercise the power under Article 203-D of the Constitution, on that basis. 8. It is correct that the Federal Shariat Court tried to give the extent of various human rights in Islam including those 258 relating to life, liberty, thought, expression, property, equality, honour and others; and, we would add dignity of man, soul and body. It is also correct that an effort has been made to highlight the limitations on the exercise of these rights and power of the State to make laws in that behalf. Learned Deputy Attorney-General is right in claiming that the Court justified the preventive measures generally, as contained in the provisions like those in Sections 11-A, 11-B and 11-C of the Act. 9. In this context for example amongst others, Verse 33 of Sura (V) (Almaida) has been interpreted in paragraph 160 of the impugned judgment. This verse and the next Verse 34 read as follows:- 259 "33 -The recompense of those who war against God and His Messenger and strive in the land, spreading mischief (therein) is only that they be slain or crucified or their hands and their feet should be cut off, from the opposite sides, or be banished from the land; This, for them shall be the disgrace in this world, and for them, in the Hereafter shall be a great torment. 34 -Except those who repent before you gain power over them; know that God is Oft-pardoning, Merciful. (Translated by S.V. Mir Ahmed Ali). While commenting on the subject of this Quranic Verse, it was observed: "Some of 260 the commentators of the Holy Quran include preventive action also within the scope of the Verse Q 5:33 about Hiraba. In this connection the first important observation is that of Imam Malik. He said that if a Muharib (belligerent who fights with Allah and His Prophet) kills somebody, he will be put to death but if he does not commit murder he can be awarded the punishment out of the four sentences described in the above verse, which is appropriate for him. He said: (It is immaterial for the applicability of the verse) whether the person striving after corruption does it secretly or clandestinely, or he does it openly or publicly. (Ahkam ul Quran, Vo1.2, p.596 by Ibn-eArabi). The secret or mysterious nature of mischief-mongering will include preparation 261 also as striving after corruption would include preparation for spreading corruption or mischief. The words wal mustattirro fi zalik i.e. whether he does it clandestinely used by Imam Mali k, are extremely significant. "Allama Rashid Raza writes in the commentary of Verse 33 of Chapter 5: (Irrespective of the contradictory and opposing views and narrations it is manifest that the order in this verse is general and is applicable to every man who commits such acts in an Islamic state, and he is subdued and arrested in such state that either he is in fact committing such acts (of belligerency or he has achieved the capability necessary for their commission). (Almanar, Vol.6,p.293). 262 It is clear that attainment of capability is only a stage of preparation from which one can feel satisfied that if proper preventive action is not taken the person making such preparation may embark upon corruption and mischief-mongering as planned by him. "Maulana Shabbir Ahmad Usmani includes criminal conspiracy and seditious propaganda also within the category of offences dealt with by this verse. Propaganda may be something manifest, but criminal conspiracy may be a preparatory stage for commission of the criminal offence in future. (see his commentary on verse Q.5:33). "Maulana Abdul Majid Daryabadi said that expulsion or imprisonment can be ordered 263 even though murder might not have been committed and the arrest may have been made when there was either preparation for it or even attempt. (Al-Quran ul Hakeem, by Maulana Abdul Majid Daryabadi). "Maulana Ameen Ahsan Islahi writes in the commentary of this verse: "The words of the verse in the Holy Quran are conclusive proof that the Government is empowered to take such action as it considers necessary, keepirig in view the circumstances and consequences of any breach of security and peace, extant as well as expected. The view of those persons is correct who say that the Government is vested with the authority to take all effective measures expedient in the circumstances for 264 maintenance of peace and security, and elimination of mischief. In such a situation it is not sufficient consideration that the group of criminals has only caused financial loss. What is essentially to be kept in view is the time, place and objectives and intentions of the criminals and their likely consequences. "(Tadabbur ul Quran, Vo1.2, pp.278-9)." We need not go into the afore-discussed question because no appeal has been filed before this Court by any party aggrieved by the justification of the measures provided in the Security Laws in general. 10. However, on principle, we would not hesitate in laying down the rule that all these limitations on human rights must be subordinated to the most fundamental of all 265 the human rights in Islam, the one A which cannot at all be abridged by any limitation; namely, right to justice. It was ruled by this Court in Pakistan v. Public at Large PLD 1987 SC 304) that: "Man having been born in the image of Allah cannot be permitted in matters of judgment to do injustice." It was also held in Capt. (Retd.) Abdul Wajid and others v. Federation of Pakistan (P L D 1988 SC 167) that:"The Quran and Sunnah are full of Injunctions emphasising undiluted justice, with its much more pronounced importance in our polity, as compared to Western jurisprudence. It is one of main pillars of Islam--after Touhid and Risalat--like Taqva in one sense." 266 It mould be examined in due course, whether this rule is relevant and needs to be observed in the present context of abridgment of human rights. 12. The first question for determination is; whether after having held that on the touchstone of Islamic injunctions the legislature has the power to control the. right to enjoy property and freedom of Press, trade and business for the sake of security, defence and external affairs or other similar interests of Pakistan, could the Federal Shariat Court annul the disputed provisions on the touchstone of what it thought to be "harshness"; which was spelled out as follows:- 267 "These sections cannot be justified in Sharia. If any judicial authority finds that any undertaking is being used to endanger inter. alia the security of Pakistan, it would be open to that authority to seize and forfeit such undertaking. But such power cannot be allowed to be exercised by a Government merely on the basis of its opinion. This amounts to encroachment on the Sharia freedom to own property and to carry on trade' or business. Clearly the object of empowering the Government to act on opinion by excluding judicial trial and to forfeit one's property would be repugnant to the Quran and the Sunnah." It is also necessary here to notice that while discussing the sanctity of the right to property, it is observed in the impugned Judgment as follows:268 "(v) RIGHT TO PROPERTY Alongwith security of life, Islam has also guaranteed with equal clarity and force the sanctity and security of the right of ownership and property, see the address of the Farewell Hajj . The Holy Qur'an declares that the taking of some one's property is completely prohibited unless it is acquired by lawful means as permitted in the Shariah. The Quran categorically declares "Do not devour one another's wealth by false and illegal means" (2:188)." The Holy Prophet declared a man to be martyr in the way of Allah if he is killed while defending his lawful property (Bukhari). Explaining this principle of the sanctity of the lawful property of the people, Imam Abu-Yusuf 269 mentions the legal maxim developed by Muslim jurists. (It is not lawful for the Government to take something out of the possession of someone save according to an established and approved right (k. al-Kharaj, discussion On Ihya' al-Mawat, also Zarqa, Vol.tt, p.1081): The limits of the right of Government to property was discussed in detail in Muhammad Ameen's case (P L D 1981 FSC 23)." The entire approach of the Federal Shariat Court on question if individual's right to property was its sanctity and protection except where the legislature has to control it for the defence, security, foreign affairs etc. 270 of Pakistan. This limitation was found justified on the touchstone of the injunctions of Islam. Therefore, we do not agree with the learned Deputy Attorney-General that the injunctions have not been referred in the impugned judgment. The rule in this behalf laid down by this Court relied upon by him, has in our view, been satisfied. His argument on that point is, therefore, without any force. However, with respect, we find that the Federal Shariat Court fell into error in the reasoning from the aforenoticed point onward. On the one hand legislative control on exercise of property rights in the relevant provisions was found justified on the touchstone of the Islamic injunctions; and, on the other they were ordered to be omitted on the ground only of "harshness". The 271 proper course was to remove the harshness with the aid of the Islamic injunctions regarding another fundamental right guaranteed by Islam; namely, opportunity of showing cause against abridgment of a basic right--here, of property. And i indeed the harshness in similar provisions of West Pakistan Press and Publications Ordinance XXX of 1963, was removed by the Court in the same judgment. Remedial measures were ordered. Failing which only, they would have ceased to have effect. This course was not adopted in regard to the provisions in question in the Pakistan Security Act. For these reasons, therefore, the impugned judgment cannot be upheld in so far as these provisions are concerned.--Sections 11-AJ 11-B and 11-C. 272 12. The next question relates to the remedial amendment in these provisions. During the arguments, it was at one stage thought, that once repugnancy to Islamic injunctions is found in a provision of law, there is no escape from the same "ceasing to have effect"; and, that the Government/ Legislature cannot be allowed option to make necessary amendment in order to save that effect. It was, on examination, ultimately agreed and rightly so, that consistent with the spirit of the Constitutional provisions in this behalf, the said serious consequence can be saved, by the Court permitting the amendment to be indicated in its judgments, with or without conditions. This would, however, be possible only if such amendment has positive nexus with the provision in question; and, supplies the omission, 273 without which it would remain repugnant to the injunctions of Islam. 13. On this view of the matter in this case, it was essential for the Federal Shariat Court to spell out the remedial measures fort removing the element of "harshness". The defects in that behalf, as~D it appears from the reasoning in the impugned judgment, regarding similar provisions in the Press and Publications Ordinance could be removed by: (1) Adequate provision for opportunity of hearing; and (2) Necessary provision for final determination of the disputes by a judicial forum. Both these points have been taken care of in the said Ordinance, by directing amendments in its various provisions, including sections 48 and 49 thereof. As to the first point (opportunity of hearing) it is further pointed out that this 274 Court has discussed the same at length its basis in injunctions of Islam in Pakistan and others v. Public at Large (P L D 1987 S C 304). The same can be seen as guidelines in this case as well. We have also rendered another decision on this subject in Province of Sind v. Public at Large (P L D 1988 S C 138). It has been ruled therein that the observance of the principles regarding "opportunity of hearing" would be satisfied in cases of emergency by affording it as soon after the action as is possible. Otherwise, the well-established rule in cases other than those of emergency, remains intact; that it should be the prior opportunity. The reasoning of the Federal Shariat Court for providing effective and final judicial remedy in original section 12 of the Security of Pakistan Act and sections 48 and 49 of the Press and Publications Ordinance, if applicable to right of trade, profession and 275 expression/ publication, it would be more pronouncedly applicable to the exercise of right to property involved in the provisions in question in this case. 14. Therefore, in the light of foregoing discussion, amendments can be made in the provisions in question, on both the points;--one, opportunity of hearing at various stages where right to own, possess and enjoy property is affected; and, two, the final adjudication by judicial forum. They would be in accord, mutatus mutandis, with the amendments which were indicated for the Press . and Publications 1 Ordinance, 1963. 15. It is clarified that before the preparation of this judgment. the hearing of Shariat 276 Appeal No.18-R of 1984 regarding Press and Publications Ordinance having taken place, it was partly allowed. The judgment of this Court in that appeal shall be kept in mind when considering the amendments to be made in the provisions in question of the Security of Pakistan Act. 16. This is not all. At this stage it is also necessary to deal with two other arguments of the learned Deputy Attorney-General; one, relating to the right of opportunity of hearing; and, the other regarding power of the Court under Article 203-D, vis-a-vis that of the legislature. 17 . There is detailed discussion on the first point with the relevant conclusions in the majority judgment in the case already 277 noted--Pakistan and others v. Public at Large (P L D 1987 S C 304). Nevertheless learned Deputy Attorney-General has relied on the following verse in the Holy Qur'an (and also on the relevant Sunnah) S.9--Al-Tauba verses 107 and 108 (the case of Mosque de Zarar):"107 -And there are those who put up a mosque By way of mischief and infidelity--To disunite the Believers--And in preparation for one who warred against Allah And His Apostle aforetime. They will indeed swear That their intention is nothing but good; but Allah doth declare That they are certainly liars. 108 -Never stand thou forth therein. There is a mosque whose foundation was laid from 278 the first day On piety; it is more worthy Of thy standing forth (for prayer) Therein. In it are men who Love to be purified; and Allah Loveth those who make themselves pure." (Translation by Abdullah Yusuf Ali) 18. The Commentary on Verses Nos.107 and 108 at pages 381 and 382 by S.V. Mir Ahmed Ali is also reproduced below as it contains the relevant Sunnah also:107 -Abu-Amir was a nobleman of the Khazraj tribe, and was very well versed in the Torah and the Evangel. He used to always address the people of Medina about the advent of the Last Prophet of God, giving the description of the Holy Prophet 279 Muhammad. But the Holy Prophet emigrated to edina and all the people flocked to him and none cared for Abu Amir in the least and he got envious of the Prophet of God and became his vehement opponent. At last after the Battle of Badr he ran away from Madina and joined the heathens, at Mecca and participated in the Battle of Ohod and was the first to shoot the first arrow on the Muslims. He took part also in the Battle of Honain but when none of his efforts were of any avail to him, he went .to Hercules the Emperor of Rome, to instigate him against the Muslims. He wrote letters to the gang of his fellow-hypocrites saying, that very shortly he would march with a huge army to crush the Muslims at Medina and he would need a mosque of his own to preach his own doctrines, and .desired them to put a mosque at Quba (about three miles from Medina) to counter 280 the Mosque built there by the Holy Prophet. Thus, Tha Laba bin Hatib and the twelve others of the hypocrites quickly constructed a Mosque (called the Mosque of Zarar, i.e., the Harmful Mosque). But by the time the Mosque was completed Abu Amir died at Syria. When the Holy Prophet was about to start on his expedition to Tabuk the hypocrites requested the Holy Prophet to solemnize it by his praying in it. The Holy Prophet first got .on a mule to go to the Mosque but the animal would not move towards it. He then got on a horse-- the horse also did the same. Then the Holy Prophet started on foot alongwith some of his companions but their feet became wonderfully heavy and they could never walk. Then the Holy Prophet said: 'God does not will it,' He would consider the question of praying in the Mosque after his return from Tabuk." 281 "108 -When on his return from Tabuk the hypocrites once again approached him for his praying in the mosque, then arrived God's command through this verse. The Mosque was demolished, for it was founded just to create dissension among the believers." 19. As already mentioned, the general question regarding right of opportunity of hearing, before any right of a citizen guaranteed by Islam, is taken away or abridged, has been upheld in Pakistan and others v. Public at Large (P L D 1987 S C 304). The limited question raised in this case by the learned Deputy Attorney-General is that; if in matters relating to Zarar and Fasad-fil-Arz and for similar other reasons for making proper exceptions, the power is 282 exercised by a law-making organ of the State, the Federal Shariat Court, or for that matter, the Supreme Court has no jurisdiction to declare the exception concerned as against injunctions of Islam under Article 20:3-D read with Article 203-F of the Constitution. 20. The question of making exceptions with regard to a general rule contained in Islamic injunctions has been dealt with by this Court in N.-W.F.P. v. Hussan Pari (P L D 1988 S C 144); and Pakistan v. Public At Large (P L D 1986 S.C.240). In the former case, it was held that where Zaroorat is made the basis for an exception, the Federal Shariat Court has the power under Article 203-D to declare that such provision (relating to exception) is against the injunctions of Islam if it is not found as a case of Zaroorat, in 283 accordance with the injunctions of Islam. Some of the wed-known limitations in this behalf have also been spelled in latter case. If those limitations are applicable to Courts, they would, with necessary variations, depending upon each situation, mutatis mutandis, be also applicable to the law making agencies (see page 253 et sequens of the report). It is, perhaps, in obedience to the conditions Nos.(iii) and (iv) at page 254 of the above-cited case, that the learned Deputy Attorney-General in support of his plea that the exception/ Zaroorat is established vis-a-vis the provision in question, relied on the case of Masjid-i-Zarar already cited, from the Holy Qur'an. These conditions are:- 284 ''(iii) Whether a relaxation is approvable on the accepted rules and principles of Ijtihad and Ijmah, old or new, Zaroorat or Zarar; Tawil, or Takhsis; Urf and other recognized methods like Qiyas Ihsan, Istehsan, Masalah Mursalah etc.? (iv) Whether in a case a new principle like the foregoing, is visualised there is support for the same in the Holy Qur'an and the Sunnah? He confined himself to the case of Masjid-i-Zarar and did not try to seek support for his contention from any other material regarding the Islamic injunctions as contained in the Holy Qur'an and the Sunnah--their interpretation or' application. We would, therefore, assuming for .the sake 285 of arguments, that the legislature has the power to make exceptions with regard to certain rights guaranteed by Islam, whether by way of its denial, abridgment or control, would deal with the case of Masjid-i-Zarar; so as to see whether it justifies the denial of the right of hearing in the situation visualised in sections 11-A, 11-& and 11-C of the Security of Pakistan Act. 21. As is apparent from the text of Sections 107 and 108 (verses) of Sura 9 as also the Sunnah in that behalf related in various commentaries, the Holy Prophet (P. B . U . H) did not afford formal opportunity of hearing to those, who were responsible for constructing the Masjid-i-Zarar before directing its demolition. The impression is straightaway gained as if they were not 286 entitled to an opportunity of showing cause against domolition. 22. It has already been noticed in connection with the arguments of the learned Deputy Attorney-General, that the Federal Shariat Court did concede power of the legislature similar to that visualised in the provisions in question, when the following basic condition is satisfied:"Where the Federal Government is of the opinion that any undertaking is being used, whether with the aid of funds from foreign sources or otherwise, or is likely to be used, for the purpose of making, printing, publishing or otherwise disseminating news, reports or information, likely to endanger the defence, the external affairs or the 287 security of Pakistan, or any part thereof, or for the purpose of promoting such interests of any foreign State, it may, by order, remove the owner or, " (Section 11-A) 23. It is also correct that, amongst others, reliance was placed on Verse 33 of Sura-5--Almaida and related material which deals with those, who wage war against the State or create disorder in the country or spread mischief or do similar other acts. And it is in that context that we, agreeing with the learned Deputy Attorney-General, have already held that the subject-matter of the provisions in question cannot be treated as repugnant to the injunctions of Islam. He, however, wants us to hold further that in addition to the abridgment and control of right to hold and enjoy ones property guaranteed by Islamic injunctions, that part 288 of the provisions which denies the right of hearing to the party concerned should also be treated as not repugnant to those injunctions. His interpretation of the words; "Where the Federal Government is of the opinion" in fact is that on the basis of the case of Masjid-i-Zarar, the Federal Government can entertain, hold and execute an opinion in the form of an order in cases covered by the provisions in question, even when opportunity of showing cause is not afforded to the accused party. 24. The case .of Masjid-i-Zarar is clearly distinguishable on more than one grounds. The persons concerned did have enough opportunity of satisfying the Prophet (P. B . U . H .) with regard to their beliefs and practice, which had already been demonstrably found to be antiState. They 289 had also enough opportunity of convincing the Prophet (P. B . U . H) despite their previous conduct that they were not in the wrong, when an attempt was made by them to persuade him to visit and offer the prayer in the said mosque. Some signs/evidence as mentioned in the commentary quoted above, had already appeared within the knowledge of the persons concerned indicating that their stand was wrong. Not only this, in order to remove all doubts, Allah, the all knowing, Himself became the Witness in the matter--and this shows how important is the right of an accused person to defend himself. The words used in section (Verse) 107 are:- One translation we have already quoted wherein means "Allah doth declare". In another translation the same words mean 290 "God (Himself) bears witness" --Muhammad Asad's The Message of the Quran. 25. It is not possible to imagine that after a verdict was rendered by Allah Himself on a controversy, then His Messenger (P . B. U . H . ) would not or could have declined to act upon it on the basis of any technical or procedural hindrance. However, in this case that hindrance also was not there because; firstly, Allah Himself as a Witness established that the persons concerned (the accused) were guilty. And it also establishes the rule: that in matters of right guaranteed by Islam no adverse action can be taken except on the basis of some material/evidence/proof/testimony, vis-a-vis misuse of the right. Secondly, even when .Allah had Himself furnished the evidence 291 by becoming Witness. He felt it necessary presumably on account of the importance of the right of hearing that it was further revealed in Verse-107: that when those persons would be summoned to answer the accusation, they would "swear that..." a particular reply. In other words a principle was being laid down that though those persons were entitled to right of hearing, yet on account of their utterances and previous opportunity of explaining their position, they would state what Allah knew and the same is then rendered in the words of those persons, in Verse-107 itself. In one translation already quoted the words are:"They will indeed swear That their intention is nothing But good." 292 but in the other translation by Muhammad Asad in the Message of the Qur'an, the translation is as follows:"And they will surely swear (to you, 0 believers), 'We had but the best of intentions'--the while God (Himself) bears witness that they are lying."-26. In the light of the foregoing discussion, it can be safely said that as a corollary to the right of hearing, acknowledged in Islam, one so-called variation (there may be others) can be visualised that .whenever it is known to the extent of certainty that if and when an opportunity is afforded the person concerned "surely" would take a certain position already taken as his defence, the formalities of summoning him again for a repetitive 293 performance, could be dispensed with. It is not necessary to elaborate this principle here any further, Its application would depend upon the circumstances of the situation vis-a-vis the Law, each case and particular action. 27. The next point raised by the learned Deputy Attorney-General regarding the "power of the Court" under Article 203-D as against that of the legislature, -.vas discussed in some detail in the case of Pakistan v . Public at Large (P L D 1986 S C 240) . It is reiterated that under Article 203-D the Court has the jurisdiction to decide the question whether or not any law or provision of alaw is repugnant to the injunctions of Islam. The words "Law" here means all laws, made by any law-making organ or agency, except those laws which 294 are excluded by the definition of law as contained in Article 203-B(c). Thus barring those exceptions any law made by the legislature including the Pakistan Security Act, 1952, could be lawfully examined under Article 203-D. If as a result of this examination and decision of the Court such law is held by the Court to be repugnant to the injunctions of Islam, it would "cease to have effect" on the day on which the decision of the Court "takes effect",--See Clause (3) of Article 203-D. Same is the power of the Supreme Court in appeal preferred under Article 203-F. 28. The only remaining contention raised by the learned Deputy Attorney-General to the effect that when a legislature in its wisdom makes a certain exception with regard to right of opportunity of hearing as 295 in the provisions in .dispute, the Court has no power under Article 203-D/203-F to examine such wisdom or for that matter) intention of the legislature, is also without force. It is obvious that if the exception or for that matter its purpose, runs counter to "the injunctions of Islam as contained in the Holy Qur'an and the Sunnah" as already interpreted in the aforesaid case, the Courts will be competent to take the necessary decision and declare it under Article 203-D/203-F of the Constitution. It may be mentioned here that, as held in the cases of B . Z . Kaikaus v . Federal Government of Pakistan and others (P L D 1982 S C 409) and Abdul Hameed v. The State PLD 1983 S C 130), when the Shariat Appellate Bench of the Supreme Court determines matter brought before it under Article 203-F read with Article. 203-D of the Constitution, except for the relevant limitations contained 296 in Chapter 3-A of the Constitution, it continues to be the same Supreme Court as is visualized under Part VII, Chapter 1 of the Constitution. In that context it has the power under.Article 187(1) "to issue such directions, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it".. Apart from other conditions the expression "complete justice" in the context of the ~ jurisdiction of the Court under Article 203-F read with Article 203-D would have to be in accord with the principles contained in or derived from the Islamic injunctions as contained in the Holy Qur'an and the Sunnah. 29. Accordingly, this appeal is partly allowed. The Judgment of the Federal Shariat Court to the extent it held the entire 297 provisions contained in sections 11-A, 11-B and 11-C of the Pakistan Security Act, 1952 as against the injunctions of Islam and directed their "omission" from the statute, is set aside. The provisions shall continue to remain on Statute book only if the necessary amendments /provisions are made therein--as indicated in this judgment with regard to right of opportunity of hearing and right of appeal before and on final adjudication by a judicial forum whenever an action is proposed to be taken or is taken under the provisions in question: It would also be in accord with the principles contained in the Holy Qur'an and the Sunnah as discussed in the impugned Judgment that the words; "where the Federal Government is of the opinion that ...." are substituted by the words "where the Federal Government is satisfied that......... ‘The right of opportunity of hearing would ordinarily be 298 provided prior to the adverse action proposed to be taken under those provisions. However, exception can be made to the effect that in case of emergency this opportunity shall be afforded as soon after the action as possible. Adequate provision can also be made regarding the manner of affording the opportunity of hearing at the original and appellate stages. 30. Sufficient guidelines and directions have been given in the foregoing discussion for bringing the provisions in question in accord with the injunctions of Islam. In order to afford adequate time for doing the needful, this decision shall take effect on 1st January, 1989 and, unless as.discussed in this Judgment, amendments /provisions are. made in the Security of Pakistan Act, 1952, in the meanwhile, Sections 11-A, - 11-B and 299 11-C thereof shall cease to have effect on the said date--1st January, 1989. 31. There shall be no order as to costs M.B.A./F-64/S Appeal partly allowed 300 1994 S C M R 1028 [Supreme Court of Pakistan] Present: Nasim Hasan Shah, C J., Shafiur Rahman, Saad Saood Jan, Abdul Qadeer Chaudhry and Sajjad Ali Shah, JJ In re: SUO PETITION MOTU CONSTITUTIONAL Constitutional Petition No. 9 of 1991(Suo Motu), heard on 6th February, 1994. Constitution of Pakistan (1973)--- 301 ----Arts. 14 & 184(3)---Universal Declaration of Human Rights in Islam, Art7---Special Courts for Speedy Trials Act (IX of 1992), S. 10---Dignity of man---Public hanging as provided by S. 10, Special Courts for Speedy Trials Act, 1992 of even the worst criminal, appears to violate the dignity of man and constitutes therefore, a violation of the fundamental right contained in Art. 14 of the Constitution. The cognizance of the matter was taken up by Supreme Court suo motu as a question of public importance namely the validity of public hanging and execution of punishments in public arose therein. 302 According to Article 14(1) of the Constitution of Pakistan (1973) the dignity and self-respect of every man has become inviolable and this guarantee is not subject to law but is an unqualified guarantee. Accordingly, in all circumstances, the dignity of every man is inviolable and executing in public, even the worst criminal, appears to violate the dignity of man and constitutes, therefore, a violation of the fundamental right contained in Article 14. Again in the "Universal Declaration of Human Plights in Islam" a document prepared by a number of leading Muslim 303 Scholars and published in London on April the 12th,1980, it is stated in the Article 7 thereof as follows:-"7. The right of protection from torture: --(a) It is not permitted to torture the criminal, still less the suspect: "God will inflict punishment on those who have inflicted torture in this world." When the matter came up for final determination the Deputy Attorney-General made a statement before Supreme Court that the Government had decided, as a matter of policy, that it will not carry out execution of criminals' sentence to death in public despite the powers vesting in it to do so under section 10 of the Special Courts for 304 Speedy Trials Act, 1992. In other words the public hangings will not be resorted to. In view of this statement no further action by Supreme Court appeared to be necessary. The case stood-disposed of in the above terms. Mumtaz Ali Mirza, Deputy Attorney-General for Appellant. Date of hearing: 6th February, 1994. ORDER 305 NASIM HASAN SHAH, C.J.--The cognizance of this matter was taken up by this Court suo motu as a question of public importance namely the validity of public hangings and execution of punishments in public arose herein. 2. This matter was heard by this Court on several occasions and we have heard the learned Attorney General for Pakistan the Advocate General of all the Provinces, Syed Afzal Haider and Qazi Muhammad Jamil eminent members of the Bars in connection with this matter. However, decision was postponed as the learned Attorney-General requested the Court to await the opinion of the Council of Islamic Ideology which had 306 been moved by Government to tender its opinion in the matter. 3. Under section 10 of the Special Courts for Speedy Trials Act, 1992, it is provided: "10. Place of execution of sentence.---The Government may specify the place of execution of any sentence passed under this Act, having regard to the deterrent effect which such execution is likely to have." 4. Pursuant to the powers conferred by this provision of law, the Government can order 307 a convict sentenced to death to be executed in public. Now Article 14 of the Constitution, which is contained in the Chapter relating to fundamental rights, by clause (1) thereof, provides as follows:- "14. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable." According to this provision the dignity and self-respect of every man has become inviolable and this guarantee is not subject to law but is an unqualified guarantee. Accordingly, in all circumstances; the dignity of every man is inviolable and executing in 308 public, even the worst criminal, appears to violate the dignity of man and constitutes, therefore, a violation of the fundamental right contained in Article 14. Again in the `Universal Declaration of Human Rights in Islam' a document prepared by a number of leading Muslim scholars and published in London on April the 12th, 1980, it is stated in the Article 7 thereof as follows:- "7. The right of protection froze torture.--(a) It is not permitted to torture the criminal, still less the suspect: "God will inflict 309 punishment on those who have inflicted torture in this world". This case, therefore, appeared, to be fit one- for exercise of suo motu jurisdiction by this Court under Article 184(3) of the Constitution. 6. Today when the matter came up for final determination the learned Deputy Attorney-General Mr. Mumtaz Ali Mirza made a statement before us that the Government had decided, as a matter of policy, that it will not carry out executions of criminals sentenced to death in public despite the powers vesting in it to do so a/s 310 10 of the Special Courts for Speedy Trials Act, 1992. In other words the public hangings will not be resorted to. 7. In view of this statement no further action by this Court now appears to be necessary. This case stands disposed of in the above term's. Order accordingly. M.BA./C-14/S Order accordingly. 311 P L D 2011 Supreme Court 997 Present: Iftikhar Muhammad Chaudhry, C. J., Anwar Zaheer Jamali, Sarmad Jalal Osmany, Amir Hani Muslim and Ghulam Rabbani, JJ WATAN PARTY Petitioners and another--- Versus FEDERATION OF others---Respondents PAKISTAN and Suo Motu Case No.16 of 2011 and 312 Constitution Petition No.61 of 2011. [Suo Motu Action regarding law and order situation in Karachi] (a) Islam------Teachings---Islam is a religion of peace and tolerance and stands for safety, security and sanctity of human life---Islam abhors unlawful killing of innocent people and strictly prohibits it. Surah-Ai-Maidah Verse 32; Surah AlBaqarah Verse 84; Surah An-Nisa Verse 93; The Farewell Sermon (Khutbatul-Wada); Sahih Bokhari, Vol VIII, p.434, Number 667 and Sahih Bukhari, Vol IX, P.2, Numbr 3 ref. 313 (b) Constitution of Pakistan------Preamble, Arts. 2-A & 9---Universal Declaration of Human Rights, Arts. 3 & 17--Constitution of Pakistan, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed---Such principles have been made a substantive part of the Constitution under Article 2-A---State was duly bound to protect and. safeguard all these Fundamental Rights including the 314 right to life and liberty; as envisaged by Article 9 of the Constitution---- "Right to life and liberty "---Interpretation---State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide etc.---Primary tasks of any legal government are defined as the provision of security, welfare and growth and constitutional order--Clear cut interconnection exists between law and order and economic development--Principles. Constitution of Pakistan, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, 315 economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed. Such principles have been made a substantive part of the Constitution under Article 2-A. State was duty bound to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution.' Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. Word "life" is very significant as it covers all facts of human existence. Word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. "Life" includes all 316 such amenities and facilities which a person born in a free country, is entitled to enjoy with dignity, legally and constitutionally. Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The word `life' in the Constitution has not been used in a limited manner; a wide meaning should be given to enable a man not only to sustain life but-to enjoy it. The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one's property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides that 317 `everyone has the right to life, liberty and security of person', no one shall be subjected to torture or to cruel., inhuman or degrading treatment or punishment; everyone has the right to recognition everywhere as a person before the law; and all are equal -before the law and are entitled without any discrimination to equal protection of the law. Article 17 lays down that `every one has the right to own property alone as well as in association with others'. No society can make any progress in a state of chaos and disorder. It is manifest to hypothesize that the law and order condition prevailing in a country has a direct and significant bearing on the pace and pattern of economic development of that country. The existence of basic socio-economic framework of the country and the continuation of economic growth without any hindrance or interruption depends upon subsistence of 318 better law and order situation. In case of break-down of peace on account of any factors negative effect is exerted on the economic growth. Better law and order as a determinant of economic development was spelled out in explicit terms in the theories of growth advanced by economists who have mentioned that the structure of the prevalent value system of a community can reasonably be considered as an important condition of law and order, because the value system defines the basic norms and ethos of human conduct. For example, if the value system of a society is predominated by sectarian or ethnic dispensations, then such a society would be continuously ridden by law and order problems, thus putting frequent twists and turns to the process of economic growth. Theme of stage, `propensities' and their linkages' have been extended to the role of political factors, institutions and the 319 law and order framework in determining the pattern of economic growth. The primary tasks of any legal government are defined as the provision of security, welfare and growth, and constitutional order. Thus there is a clear cut interconnection between law and order and economic development. Shehla Zia's case PLD 1994 SC 693; Arshad Mehmood v. Government of Punjab PLD 2005 SC 193; Theories of Socio-economic Growth, Problems in the Study of Economic Growth, 1949, JJ. Spangler and W.W. Rostow in Politics and the Stages of Growth, 1971 ref. (c) Constitution of Pakistan--- 320 ----Arts. 9, 14 & 25---Every citizen must be treated equally, dignity of human life should be maintained and liberty of life and honour must be guaranteed as envisaged in the Arts. 9, 14 and 25 of the Constitution. Commissioner of Income Tax v. Eli Lilly Pakistan 2009 SCMR 1279 ref. (d) Constitution of Pakistan------Art. 18--Freedom of trade, business or profession---Article 18 of the Constitution assures the citizens the right to enter upon any "lawful profession or occupation" and "to conduct any lawful trade or business""Lawful"- qualifies the right of the citizen in the relevant field, which clearly envisages 321 that State can by law ban a profession, occupation, trade or business by declaring the same to be unlawful which in common parlance means anything forbidden by law-Government has the authority to regulate a lawful business or trade--Reasonable restriction, however, does not mean prohibition or prevention completely--Principles. Government of Pakistan v. Zamir Ahmad PLD 1975 SC 667 and Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 ref. (e) Constitution of Pakistan------Art. 24(1)---Protection of property 322 rights---No person shall be deprived of his property save in accordance with law. Arshad Mehmood v. Government of Punjab PLD 2005 SC 193 ref. (f) Constitution of Pakistan------Art. 5---Loyalty to State and obedience to Constitution and law---Any democratic set up consisting of citizens and functionaries in the country under the Constitution is bound to show its loyalty to the State, for to be loyal and faithful to the State is the basic duty of every citizen under Article 5 of the Constitution---Article 5(2) of the Constitution has mandated that obedience to the Constitution and law is the 323 inviolable obligation of every citizen wherever he may be and for every other person for the time being within Pakistan--Chosen representatives, who have acquired authority on behalf of their electors as members of the National Assembly, Senate or Provincial Assemblies as per mandate of their oath, which they take before entering upon office, are bound to bear true faith and allegiance to Pakistan---Oath of the office of members of the National Assembly and Senate as set out in the Third Schedule of the Constitution provides that. the members will perform their functions honestly, to the best of their ability, faithfully and in accordance with the Constitution and law; that they' will act in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan and they will preserve, protect and defend the Constitution---While holding a 324 constitutional office, the chosen representatives of the people have to remain true to their oath and to observe constitutional limits in all circumstances. Shahid Orakzai v. Pakistan through Secretary Law PLD 2011 SC 365 ref. (g) Constitution of Pakistan------Arts. 101 & 105-Governor to act on advice---Governor of a Province is to be appointed as per Article 101 by the President on the advice of the -Prime Minister---Governor who is holder of a constitutional post and acts as the agent of the President, has to keep the Federation informed of the affairs of the Province, 325 although as per Article 105, the Governor shall act on the advice of the Cabinet or the Chief Minister. (h) Constitution of Pakistan------Arts. 107 & 112---Dissolution of Provincial Assembly---Scope---provincial Assembly cannot be dissolved by the Governor except under circumstances warranting such dissolution as per Art.112 of the Constitution---Principles. Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25 ref. (i) Constitution of Pakistan--326 ----Art. 232---Proclamation of Emergency by the President on account of war, internal disturbance, etc.---Scope. (j) Constitution of Pakistan------Art. 17---Political party cannot be formed or operate in a manner prejudicial to the sovereignty or integrity of Pakistan. (k) Administration of justice------Courts can only act upon evidence and material presented before them, which is to be collected by the executive---Courts cannot be blamed if the executive/police fail 327 in their duty---Evidence collected by executive/police must be evaluated according to the laws and rules prescribed by the legislature---Government has to ensure that cogent evidence to support prosecution is collected and presented in the court---Legislature is to provide processes for the protection of witnesses, Policemen and Judges and it is for the executive/government to fully implement such reforms---Intelligence sharing and action on intelligence that is uncorrupted by political or extraneous influence must also be ensured by the executive---Supreme Court observed that it was expected that a new culture of independent, depoliticized, and non-partisan prosecution comprising efficient, capable prosecutors will be established by the Government to aid and assist the courts--Government must also depoliticize the administration/prosecution 328 which will be for its own good and for that of the nation---Courts will keep a watchful eye and strike down all illegal pressures and orders that are brought to their notice. (l) Adversarial proceedings------Definition and concept---"Adversarial proceedings" are defined as proceedings relating to, or characteristic of an adversary or adversary procedures. Concise Oxford English Dictionary, 11th Edn.; Muhammad Manawar v. Deputy Settlement Commissioner 2001 YLR 2350; Peoples' Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] = [(1982)3 SCC 235], Bandhua Mukti Morcha 329 v. Union of India [AIR 1984 SC 802], Peoples' Union for Liberties v. Union of India [AIR 1996 Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402. ref. (m) Adversarial process------Definition---"Adversarial process" is defined as a process in which each party to dispute puts forward its case to the other and before a neutral Judge, soliciting to prove the fairness of their cases. Advanced Law Lexicon; American Heritage Dictionary of the English Language, 4th Edn. and Collins English DictionaryComplee and Unabridged ref. 330 (n) Adversarial system------Definition and Scope. The adversarial system (or adversary system) is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitoriar system has a judge (or a group of judges who work together) whose task is to investigate the case. The adversarial system is a two-sided structure under which criminal trial courts operate that pits the prosecution against the 331 defence. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her perspective on the case is the correct one. (o) Words and phrases-------"Inquisitorial"-Definition and scope. "---Definition Concise Oxford English Dictionary, 11th Edn.; Advanced Law Lxicon 3rd Edn. 2005; Webster's New World College Dictionary Copyright 2010 by Wiley Publishing, Inc., Cleveland, Ohio and Collins World English Dictionary ref. 332 (p) Inquisitorial system------Scope and application---Distinction between Inquisitorial and Adversarial systems. An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial system where the role of the court is primarily that of an impartial referee between the prosecution and the defence. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries using common law, including the United States, may use an inquisitorial system for summary hearings in the case of 333 misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term "inquisitorial" misleading, and prefer the word "non-adversarial". The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However, some jurists do not recognize this dichotomy and. see procedure and substantive legal relationships as being interconnected and 334 part of a theory of justice as applied differently in various legal cultures. In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice. The proceedings, which are initiated as public interest litigation in civil or criminal matters cannot be treated as adversarial because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded. 335 (q) Constitution of Pakistan-----Arts. 184(3) & 199---Public interest litigation---Proceedings---Nature--Proceedings under public interest litigation is inquisitorial in nature where the court may even delve into fact finding so as to promote public interest-Proceedings which are initiated as public interest litigation in civil or criminal matters cannot be treated as "adversial" because of the definition of nature of the proceedings where without contest between the parties a final finding has to be recorded. Tabacco Board v. Tahir Raza 2007 SCMR 97; Ch. Muneer Ahmad v. Malik Nawab Sher PLD 2010 Lah. 625 and Philips Electrical Industries of Pakistan Ltd. v. 336 Pakistan 2000 YLR 2724 ref. (r) Constitution of Pakistan------Art. 148---Law and order situation and enforcement of fundamental rights of citizens---Held, under the Constitution, it is the obligation of the Federation to protect every Province against internal disturbances as well as external aggression and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution. (s) Constitution of Pakistan------Arts. 184(3) & 199---Enforcement of 337 fundamental rights---Supreme Court, in exercise of its jurisdiction under Art.184(3) of the Constitution, which is in the nature of "inquisitorial proceedings", has the same powers as are available to the High Court under Art.199 of the Constitution. Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Bank of Punjab v. Haris' Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 and Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752 ref. (t) Constitution of Pakistan------Part II, Chap.1 [Arts. 9 to 28]--338 Ensuring good governance, maintaining law and order situation and providing security to the persons is a primary duty of the Government. Mohtsham, Saeed M., Vision and Visionary Leadership-An Islamic Perspective; Federation of Pakistan v. Haji Muhammad Saifullah Khan PLD 1989 SC 166; Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 and Benazir Bhutto v. Federation of Pakistan PLD 1968 SC 416 ref. (u) Penal Code (XLV of 1860)------Ss. 386, 387 & 388---Anti-Terrorism Act (XXVII of 1997), S.6(1)(k)---Offences 339 of extortion of money, which can also be considered as bhatta, is covered by Ss.386, 387 & 388 of P.P.C. and falls within definition of "terrorism" given in S.6(1)(k), Anti-Terrorism Act, 1997---Such crime can be controlled by applying said laws strictly. Bracy v. Gramley, Warden [502 US 899 (1997)] ref. (v) Constitution of Pakistan------Preamble---Different institutions, as per scheme of the Constitution are required to fulfil their commitment because Constitution is based on the principle of trichotomy of powers i.e. Legislature, which is responsible to legislate the laws, 340 Executive/Government headed by the Prime Minister in the Federation and the Chief Ministers in the Provinces to fulfil their duties, and the Judiciary, which has to interpret the Constitution and the law--Violation of constitutional provisions by any of the organs/functionaries of the State is not permitted by law. Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 876 ref. (w) Constitution of Pakistan------Part II, Chap. 1 [Arts.9 to 28]--Enforcement of fundamental rights/civil rights---Duty of executive---If the 341 executive fails to do so, they have to face consequences envisaged by the Constitution---Executive functionaries who have also taken oath in the Province and Federation to protect and preserve the Constitution cannot be allowed to defeat any provision of the Constitution, whatever the circumstances may be. (x) Constitution of Pakistan------Art. 5---Loyalty to State and obedience to Constitution and law- Article 5 of the Constitution commands that loyalty to State is the basic duty of every citizen and obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be, and of every other person for the time being within Pakistan-342 -Executive/public functionaries are bound to enforce the Constitution while protecting the Fundamental Rights of the citizens without, any fear or favour or compromise .for subjective purpose---Executive Authorities cannot be allowed to be negligent to an extent where ultimately the sovereignty and integrity of the country is jeopardized. Abdul Majeed Zafar v. Governor of Punjab 2007 SCMR 330 and Ch. Zahur Ilahi v. Zulfiqar Ali Bhutto PLD 1975 SC 383 ref. (y) Constitution of Pakistan------Arts. 5(2) & 184(3)---Public interest matter---Incidents of violence, commission 343 of crimes, bloodshed and looting occurring in the society---Without claiming any immunity, in the public interest proceedings, the Prime Minister as well as the Chief Minister (of the Province), both are bound to follow the Constitution under Art.5(2) of the Constitution by ensuring security and safety of persons and property of the citizens---Principles. (z) Constitution of Pakistan------Art. 5(2)---Loyalty to State and obedience to Constitution and law--Whosoever is ruling the country under the Constitution, he being the Leader of the House, is bound to know the constitutional commitments and provisions of law because of the fact that he or they have taken oath(s) 344 to preserve, protect and defend the Constitution, including Fundamental Rights as well as to show obedience to the Constitution and law under Article 5(2) notwithstanding their holding of any high office. Ch. Zahoor Ilahi v. Zufiqar Ali Bhutto PLD 1975 SC 383 ref. (aa) Constitution of Pakistan------Preamble, Part II, Chap.] [Arts.9 to 28]--Under the Constitution, it is not possible now for the Armed Forces to dismiss the Government by adopting extraconstitutional measures, but at the same time the chosen representatives also owe a duty 345 to the Constitution and if they feel that on account of any political expediency they can allow the continuance of the position of law and order in the Province, it will be at their own risk and cost, otherwise under the Constitution they are bound to secure lives and properties, ensuring the proprietary rights, freedom of movement, etc., and failing which constitutionally such government is likely to lose their right of ruling. Sindh High Court Bar Association v. Federation of Pakistan PLD 2009 SC 876 ref. (bb) Constitution of Pakistan--- 346 ----Art. 148(3)---Obligation of Provinces and Federation---Federal Government, under Art.148(3) of the Constitution is bound to assist the Provincial Government during period of disturbances. (cc) Press statement------Such statement having not been controverted by anyone, will be presumed to have been accepted. Mubashir Hussain v. Federation of Pakistan PLD 2010 SC 265 ref. (dd) Adversarial proceedings--- 347 ----Criminal case in an adversarial proceeding is likely to be decided on merits after recording of evidence. Federation of Pakistan v. Gul Hassan Khan PLD 1989 SC 633 ref. (ee) Constitution of Pakistan------Art. 4---Right of individuals to be dealt with in accordance with law---To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person would 348 be taken except in accordance with law--Fundamental Rights of the citizens have to be enforced by the court in the discharge of judicial functions. Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 and Syed Jalal Mehmood Shah v. Federation of Pakistan PLD 1999 SC 395 ref. (ff) Constitution of Pakistan------Art. 17(2)---Freedom of association-Held, under Art.17(2) of the Constitution it is the duty of the Federal Government to declare that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of 349 Pakistan and within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final. (gg) Constitution of Pakistan------Art. 148(3)---Obligation of Provinces and Federation---Federal Government is duty bound under Article 148(3) of the Constitution to protect every Province against internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution. (hh) Constitution of Pakistan--- 350 ----Art. 148(3)---Obligation of Provinces and Federation---Bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., were being committed within the knowledge of the State through Provincial Government/Executive but it remained a silent spectator and prima-facie failed to take appropriate action, may be for some political reasons---Constitution does not allow the Executive to compromise its position at the cost of innocent citizens who lost their lives, property, liberty and dignity because of the expediency of the Provincial or Federal Government. (ii) Constitution of Pakistan--- 351 ---Art. 148(3)---Obligation of Provinces and Federation---Pakistan having written Constitution, which is implemented through the Federation and the Provincial Governments by strictly adhering to its provisions without any political considerations, the situation of law and order can be managed. (jj) Constitution of Pakistan------Art. 17---Political Parties Order [18 of 2002], Art.15---Political parties---If the Government succeeds in establishing that any political party is operating in a manner prejudicial to the sovereignty or integrity of Pakistan, provisions of Art. 17 of the Constitution read with S.15, Political Parties Order, 2002 can be invoked. 352 (kk) Islamic jurisprudence------Crimes---If anyone killed a person not in retaliation of murder, or to spread mischief in the land, it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved all mankind, which is to be accepted by all the Muslims---Life of a human being is very precious, therefore, Allah has condemned the killing of even a single human being and has equated it with the killing of the whole humanity, and vice versa, if a man is saved, the whole humanity will be deemed to have been saved. Sura Almaida Verses 22 and 23 ref. 353 (ii) Words and phrases------"Executive"-Definition. American Heritage Dictionary of the English Language, 4th Edn.; Collins English Dictionary; Cultural Dictionary and Oxford Guide to the US Government ref. (mm) Words and phrases------"State"-Definition. Advance Law Lexicon; Corpus Juris Secondum and Collins English Dictionary ref. 354 (nn) State------Concept. (oo) Government------Concept. As against the term "State", a government is an institution whose existence precedes that of the State. A government is a person or group of persons who rule or administer (or govern) a political community or a State. For government to come into being there must be an existence of public on the territory of a State. Ruling within a 355 household is not government. Government exists when people accept (willingly or not) the authority of some person or persons to address matters of public concern; the administration of justice, and defence against external enemies being typical examples of such matters. (pp) Constitution of Pakistan------Arts. 90, 129 & 7---Executive authority of the Federation and Provinces and institution of State---Scope---Institution of State is distinguished from executive authorities as defined in Art.7 of the Constitution. Article 90 of the Constitution defines 356 "executive authority" as "subject to the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government which consists of Prime Minister and Federal Ministers, who shall act through the Prime Minister who shall be the chief executive of the Federation." Whereas in relation to the Provincial Government, Article 129 with the substitution of Governor with the President defines the Executive Authority of the Province consisting of the Chief Minister and Provincial Ministers, who shall act through the Chief Minister. Both these executive authorities represent the Federal and Provincial Governments whereas the institution of State is distinguished from executive authorities as defined in Article 7 of the Constitution. 357 (qq) Constitution of Pakistan------Art. 184(3) & Part II, Chap.] [Arts.9 to 28]---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope--Under Article 184(3), Supreme Court exercises same powers, which are available to a High Court under Article 199(1)(c) of the Constitution---Supreme Court can make an order giving such direction to any person or authority including any government exercising power or performing any function find, in relation to, any territory within its jurisdiction as may be appropriate for the enforcement of Fundamental Rights conferred by Chap. 1 of Part II of the Constitution. Muhammad Nawaz Sharif v. President of 358 Pakistan PLD 1993 SC 473; Syed Wasey Zafar v. Government of Pakistan PLD 1994 SC 621; Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109; Federation of Pakistan v. Munir Hussain Bhatti PLD 2011 SC 752; Zulfiqar Mehdi v. Pakistan International Airlines Corporation 1998 SCMR 793; Benazir Bhutto's case PLD 1988 SC 416; Asma Jilani v. Government of the Punjab PLD 1972 SC 139 Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457 and Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9 ref. (rr) Constitution of Pakistan------Art. 184(3)---Suo motu action regarding law and order situation in Karachi and 359 petitions under Art.184(3) of the Constitution---Nature of proceedings---Such proceedings are not against the State but to consider whether the Provincial Government of Sindh had failed to enforce the Fundamental Rights of the citizens. (ss) State------Successful State---Scope---Successful State maintains a monopoly on the legitimate use of physical force within its borders. Max Weber ref. (tt) Constitution of Pakistan--360 ----Arts. 184(3) & 199---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Court is empowered under Article 184(3) to consider any question of public importance with reference to enforcement of any of Fundamental Rights, conferred by Chapter 1, Part II and can make an order of the nature mentioned in Article. 199---Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversarial proceedings and while dealing with a case under Article 184(3) of the Constitution, court is neither bound by the procedural trappings of Article 199 nor by the limitations mentioned in the said Article for exercise of power by the High Court in any case---Court is empowered to examine as to whether Province has failed to enforce Fundamental Rights. 361 Pakistan Muslim League (Nawaz) v. Federation of Pakistan PLD 2007 SC 642 ref. (uu) Constitution of Pakistan------Art. 245---Armed Forces also fall within the definition of the executive. Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 ref. (vv) Pakistan Armed Forces (Acting in Aid of Civil Powers) Ordinance (XIII of 1998)--362 ----S. 6 & Sched.---Constitution of Pakistan Art.184(3)--- Pakistan Armed Forces (Acting in Aid of Civil Powers) Ordinance, 1998 as in so far as it allowed the establishment of the Military Courts for control of the civilians, charged with the offences mentioned in section 6 and the Schedule to the said Ordinance is unconstitutional, without lawful authority and of no legal effect---Supreme Court has jurisdiction to examine an instrument on the basis of which power to try the accused is conferred upon the executive or the Armed Forces. (ww) Constitution of Pakistan------Art. 148(3)---Obligation of Provinces 363 and Federation---Federal Government has to protect the Provinces against internal disturbances--Such protection, if required by a Province in terms of Article 148(3) of the Constitution in view of the given facts and circumstances and the scenario presupposes prompt protection and failure to do so makes the Federal Government responsible. Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646 and Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 ref. (xx) Administration of justice------All criminals, howsoever influential, have to be dealt with across the board 364 without any discrimination or compromising the position of the law on the subject. (yy) Constitution of Pakistan------Art. 148(3)---Obligation of Province and Federation---Provincial Government as well as the Federal Government are duty bound to protect and preserve the Constitution, which confers such rights upon individuals--When violation of the Fundamental Rights is admitted, ultimately blame lies with the executive authorities, both Provincial and the Federal, for non-implementation of their rights. (zz) Constitution of Pakistan--- 365 ----Art. 232---Proclamation of Emergency on account of war, internal disturbances--Held, except adherence to the constitutional provisions in any situation prevailing in the country, no extra-constitutional steps have to be followed. Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 ref. (aaa) Constitution of Pakistan------Art. 184(3)---Suo motu action regarding law and order situation in Karachi and petitions under Art.184(3) of the Constitution---Supreme Court, from the material produced before the court and the information conveyed during hearing of the 366 case by Inter-Services Intelligence of Pakistan followed by intensified arguments advanced by the counsel appearing for the Provincial and Federal Governments, Attorney General, Advocate General, counsel for the Province of Sindh and counsel for the interveners, the Inspector General of Police, the DG Rangers, the Presidents of the Sindh High Court Bar Association and the Karachi Bar Association as well as all others observed and gave directions in that regard. Supreme Court observed and directed: that violence in Karachi during the (current) year and in the past is not ethnic alone but it is also a turf war between different groups having economic, socio-politico interest to 367 strengthen their position/aggrandizement, based on the phenomenon of tit for tat with political, moral and financial support or endorsement of the political parties, who are claiming their representation on behalf of public of Karachi including components and non-components of Provincial Government/ Executive; that recent violence in Karachi represents unimaginable brutalities, bloodshed, kidnapping and throwing away dead bodies and torsos in bags; as illustration, indicating toll of 306 lives in one month; detection of torture cells video of which has been produced; receiving bhatta to strengthen the ranks of one group against the other; grabbing land; drug mafia etc., destroying moveable and immovable properties of the citizens, establishes that the Fundamental 368 Rights of the citizens enshrined in Articles 9, 14, 15, 18 and 24 of the Constitution have not been protected/enforced by the Provincial Government/Executive authority and this failure has made the lives and properties of the citizens insecure, inasmuch as Federal Government/ Executive has also not protected Province of Sindh against internal disturbance, thus the government of Province of Sindh, on this account, too, failed to carry out functions in accordance with the provisions of the Constitution [Article 148(3)]; that both the Provincial and Federal Governments/Executives have to find out solutions of the present scenario as per provisions of the Constitution; 369 that to come out of instant grave situation of law and order in Karachi, police force being principal law enforcing agency has to be depoliticized and strengthened so that they could, with full commitment, dedication, zeal and zest, perform its bounden duty, and unless there is a de-politicized police, the situation of law and order is likely to become more aggravated, no sooner the assistance of Rangers is withdrawn; that any further failure to protect the lives and property of the citizens is likely to cause unprecedented disaster, therefore, all efforts should be made to avoid the same in the interest of the nation and country, which is supreme as per the mandate of the Constitution and the law; 370 that in respect of banning any political party including MQM, against whom all the interveners mostly had voiced complaints is not within domain of the Supreme Court at this stage as in terms of Article 17(2) of the Constitution every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and it is the responsibility of the Federal Government to act under Article 17 for action against any party violating this Article. The Supreme Court will only review such issue at any other appropriate stage or proceeding if then necessary to determine whether the actions of any party are directly or indirectly prejudicial to the sovereignty or integrity of Pakistan within the meaning of the Article. The Supreme Court will remain, in 371 appropriate proceedings, the ultimate arbiter of this question but will not allow any government to avoid its duty under the law and the Constitution; that as per material brought before the court, there are criminals who have succeeded in making their ways in political parties notwithstanding whether they are components or non-components of government, and are getting political and financial support allegedly from such parties, therefore, the political parties should denounce their affiliation with them in the interest of the country and democratic set up and they should not allow them to use their names as militant outfits of the political parties. Failure to do so may entail consequences of a penal nature against the party or person responsible, whether in 372 office or not; that to avoid political polarization and to break the cycle of ethnic strife and turf war, boundaries of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as no go areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. 373 The Election Commission of Pakistan may also initiate the process on its own in this behalf; that equal chances should be provided to different communities of Karachi to participate in economic and commercial activities instead of confining the same to different political groups on the basis of parochial, racial, tribal, sectarian, partisan and provincial prejudices; that Karachi is full of arms and ammunition of prohibited and non-prohibited bores including licensed and illicit, therefore, Karachi has to be cleansed from all kinds of weapons by adhering to the laws available on the subject, and if need be, by promulgating new legislation. All licensed 374 arms genuinely required for security concerns and personal safety may be retained but these must also be registered with NADRA. All other licenses, where such need cannot be shown, or where multiple licences have been issued to the same individual (as distinct from security firms) if not justified, or which are used for unnecessary display at ceremonies or elsewhere for aerial firing should be cancelled after summary and expeditious proceedings in accordance with law; that there is a need for a fresh comprehensive law to eliminate and punish land grabbers and encroachers. This is one of Karachi's greatest problems. The court has already dealt with some cases suo motu and otherwise, and will continue to do so whenever necessary or appropriate. 375 Sometimes Supreme Court is the last hope of the citizens or a community which turns to it for redress when all other avenues are denied to them. But overall it is the duty of both Governments to formulate such law and initiate it in the appropriate Assembly; and thereafter to implement it fully without showing any favour or immunity to any person whether a political favourite, ally or for any other personal or party consideration; that monitoring of the criminal cases should take place in view of the observations made in the case of Sheikh Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504). Besides, the appointments of the Presiding Officers of the Anti-Terrorism Courts should also not be delayed for any reason, as it was experienced during the hearing of the 376 case that those appointments were delayed for a period of nearly two years. However, under the direction issued by the court, the Presiding Officers were appointed and it is expected that such delays shall not be allowed to occur in future; that since innocent citizens have lost their lives, number of .which comes to 1310 during the current year. Similarly, a good number of citizens have been injured and/or lost their valuable property, both movable and immovable, therefore, Provincial Government/Executive shall constitute a Commission to assess their losses and on its recommendation, compensation must be paid to the sufferers without partisan consideration, as early as possible; 377 Supreme Court directed that there must be no `no go areas' at all in Karachi. If any is found or credibly reported to the court the Police and, if required by the Provincial Government, the Rangers shall take strong and decisive action to eliminate it. Moreover, if such an area is proved to exist to the satisfaction of the court, Supreme Court may require the Inspector General Police himself, and if necessary the DG Rangers also, to personally lead the operation into such areas. The Police and Rangers are therefore, expected to conduct the on-going operation across the board without showing any favour to any one and without being influenced from any quarter, be it political or otherwise. In case they are asked to obey any illegal orders, or to show leniency to any criminal, it will be their duty to bring it to the notice of the court and appropriate orders will be passed 378 accordingly; that an independent and a depoliticized investigation agency be deputed to conduct investigation of cases fairly, honestly and without being influenced in any manner. Similarly, the prosecution agency comprising competent prosecutors and the Provincial Government/Executive must provide protection to the witnesses so that they may depose against the perpetrators of crimes without any fear, enabling the courts to decide cases against them in accordance with law. The prosecutors, particularly for the Anti-Terrorism Courts should be appointed in a highly transparent manner according to the Constitution and the law. Appointments of prosecutors are required to be undertaken without any political whims and considerations; 379 that DG NADRA and the Inspector General Police will set up a special joint cell with specialized officials and experts along with sufficient manpower to establish several teams to visit on the spot and identify illegal foreigners so that they may be dealt with strictly in accordance with law after a proper hearing and opportunity to present proof of their citizenship. They should attempt to conclude this exercise preferably in one year; that the Inspector General Police shall collect the record and facts about the disappearance or elimination of all police and other officials who took part in the Karachi operations of 1992 and 1996 or were witnesses in ethnic or related crimes and present a report to the court within the 380 next one month also showing whether their families were compensated or not; that the Provincial Government shall place on record of the court copies of all judicial inquiries instituted in the matter of law and order in Karachi since 1985. These shall be retained for perusal and for any necessary action or appraisal of the situation at any time in the future; that the Provincial Government/Executive shall ensure smooth running of economic and commercial activities and shall take necessary steps that provide protection to businessmen against uncalled for and illegal shutter down and strikes. During arguments, it was also brought to the Court's notice that due to illegal strikes and shutter down calls, 381 the normal life of citizens of Karachi is paralyzed, and allegedly it causes loss of billions of rupees in a day, therefore, it is observed that the Government and the political parties shall evolve a respectable way out to avoid such a situation in future; and that a Committee be constituted by the Provincial Government/Executive, headed by the Chief Justice of Sindh High Court, who shall be assisted by the Chief Secretary, the heads of the security agencies i.e. paramilitary organizations and Inspector General Police, to supervise and ensure that law enforcement agencies take action indiscriminately, across the board against the perpetrators involved, in causing disturbances in Karachi. The Chief Justice shall convene the meeting at least once a 382 month to review the implementation of present judgment and copy of the proceedings shall be transmitted to the Registrar of Supreme Court for perusal of Judges and passing appropriate orders at a later stage, if need be. Barrister Zafarullah Khan, Advocate Supreme Court for Petitioners (in Constitution Petition No.61 of 2011). Maulvi Anwar-ul-Haq, Attorney General for Pakistan, Syed Ashiq Raza, D.A.-G., M. Shoaib Shaheen D.A.G., Raja Aleem Abbasi, D.A.-G., Ms. Asma Jehangir, Advocate Supreme Court/President SCBA and Anwar Mansoor Khan, Senior Advocate Supreme Court/President, SHCBA, Abdul Fattah Malik A.G. Si,ndh, Shahadat Awan, 383 P.G. Sindh, Wajid Ali Durrani, I.G.P., Sindh, Saud Ahmed Mirza, Addl. I. G. Sindh and Anwar Subhani, Legal Consultant (On Court Notice). Abdul Hafeez Pirzada, Senior Advocate Supreme Court [assisted by Abdul Sattar Pirzada, Advocate] for Province of Sindh. Dr. Babar Awan, Senior Advocate Supreme Court and A.S.K, Ghouri, Advocate-onRecord for the Federation. Arif Chaudhry, Advocate Supreme Court and A.S.K. Ghouri; Advocate-on-Record for M/o Interior. 384 Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Applicant (in C.M.A. No.4108 of 2011). Abdul Mujeeb Pirzada, Senior Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Applicant (in C.M.A. No.531-K of 2011). Muhammad Aqil, Advocate, President KBA, Syed Haider Imam Rizvi, Advocate, Gen. Secy. and Iftikhar Javed Qazi, Advocate Supreme Court, Vice Chairman Sindh Bar Council for Applicants (in C.M.A. No.532-K of 2011). Ghulam Qadir Jatoi, Advocate Supreme Court/Advocate-in-Record for Applicant (in 385 C.M.A. No.533-K of 2011). Khawaja Naveed Ahmad, Supreme Court and Mazhar Advocate Ali B. Chohan, Advocate-on-Record for Applicant (C.M.A. No.535-K of 2011). Irfanullah Marwat, Applicant in person (in C.M.A. No.541-K of 2011). Syed Iqbal Haider, Senior Advocate Supreme Court and K.A.Wahab, Advocateon-Record for Applicant (in C.M.A. No.544-K of 2011). 386 Faisal Kamal Aalam, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocateon-Record for Applicant (in C.M.A. No.546-K of 2011). Rasool Bux Palijo, Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-onRecord for Applicant (in C.M.A. No.552-K of 2011). Jamil Ahmad Virk, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Applicant (in C.M.A. No.555-K of 2011). Javed Ahmad Chhattari, Advocate 387 (Applicant) (in person) (in C.M.A. No.558K of 2011). Ashraf Samoo, Advocate/President Malir Bar Association for Applicant (in C.M.A. No.560-K of 2011). Mst. Surriya (Applicant) in person (in C.M.A. No.561-K of 2011). Dr. Farogh Naseem, Advocate Supreme Court Dr. Kazi Khalid Ali, Advocate Supreme Court and Izhar Alam Farooqi, Advocate-on-Record for Applicant (in C.M.A. No.565-K of 2011). Afaq Ahmed (through Jail) for applicant (in 388 C.M.A. No.569-K of 2011). Dates of hearing: 26th & 29-30 August, 5-9 & 13 September, 2011. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---Islam is a religion of peace and tolerance and it stands for safety, security and sanctity of human life. Islam abhors unlawful killing of innocent people and strictly prohibits it in a number of Quranic verses and Ahadith. In Surah AlMaidah Verse 32, Allah says:-- 389 "Because of that, We ordained for the Children of Israel that if anyone killed a person not in retaliation of murder, or to spread mischief in the land - it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved the life of all mankind. And indeed, there came to them Our Messengers with clear proofs, evidences, and signs, even then after that many of them 'continued to exceed the limits (e.g. by doing oppression unjustly and exceeding beyond the limits set by Allah by committing the major sins) in the land." Some of the other verses of the Holy Quran are as under:"And (remember) when We took your 390 covenant (sayings: Shed not the blood of your (people), nor turn out your own people from their dwellings. Then, (this) you ratified and (to this) you bear witness." [Sura Al-Baqarah Verse 84] "And whoever kills a believer intentionally, his recompense is Hell to abide therein; and the Wrath and the Curse of Allah are upon him, and a great punishment is prepared for him." [Sura An-Nisa Verse 93] The Holy Prophet [SAW] said "O People, just as you regard this month, this day, this city as Sacred, so regard the life and property of every Muslim as 391 a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet your Lord, and that He will indeed reckon your deeds……." [The Farewell Sermon (Khutbatul-Wada)] "The biggest sins are: To join others in worship with Allah; to be undutiful to one's parents; to kill somebody unlawfully; and to take an oath AlGhamus." [Sahih Bukhari, Vol VIII, P.434, Number 667] "Narrated Abdullah bin Umar: One of the evil deeds with bad consequence from which there is no escape for the one who is involved in it is to kill someone 392 unlawfully." [Sahih Bukhari, Vol IX, P.2, Number 3] 2. This aspect of the Islamic teachings, as well finds its reflection in the Constitution of the Islamic Republic of Pakistan 1973. The Constitution, in its very Preamble, postulates that the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed and the fundamental rights, including equality of status, of opportunity and before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; shall be fully guaranteed. These very principles have been made a substantive part of the Constitution under Article 2A. Thus, it is the duty of the State 393 to protect and safeguard all these Fundamental Rights including the right to life and liberty as envisaged by Article 9 of the Constitution, which has been interpreted by this Court in Shehla Zia's case (PLD 1994 SC 693) as under:-"Article 9 of the Constitution provides that no person shall be deprived of life or liberty save in accordance with law. The word "life" is very significant as it covers all facts of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can it be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and 394 constitutionally. For the purposes of present controversy suffice to say that a person is entitled to protection of-law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations. Under the common law a person whose right of easement, property or health is adversely affected by any act of omission or commission of a third person- in the neighbourhood or at a far off place, he is entitled to seek an injunction and also claim damages, but the Constitutional rights are higher than the legal rights conferred by law be it municipal law or the common law. Such a danger as depicted, the possibility of which cannot be excluded, is bound to affect a large number of people who may 395 suffer from it unknowingly because of lack of awareness, information and education and also because such sufferance is silent and fatal and most of the people who would be residing near, under or at a dangerous distance of the grid station or such installation do not know that they are facing any risk or are likely to suffer by such risk. Therefore, Article 184 can be invoked because a large number of citizens throughout the country cannot make such representation and may not like to make it due to ignorance, poverty and disability. Only some conscientious citizens aware of their rights and the possibility of danger come forward." 3. In case of Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193) 396 also, the Court observed that the word `life' used in Article 9 of the Constitution includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. The word `life' in the Constitution has not been used in a limited manner; a wide meaning should be given to enable a man not only to sustain life but to enjoy it. The State is duty bound to protect the life and property of its citizens in accordance with law against all the atrocities, target killings, homicide, etc. The basic human rights of life, liberty and enjoyment of one's property have been recognized nationally as well as internationally. Article 3 of the Universal Declaration of Human Rights provides that `everyone has the right to life, liberty and security of person', no one shall be subjected to torture or to cruel, inhuman or degrading 397 treatment or punishment; everyone has the right to recognition everywhere as a person before the law; and all are equal before the law and are entitled without any discrimination to equal protection of the law. Article 17 (ibid) lays down that every one has the right to own property alone as well as in association with others. It is worth mentioning here that no society can make any progress in a state of chaos and disorder. It is manifest to hypothesize that the law and order condition prevailing in a country has a direct and significant bearing on the pace and pattern of economic development of that country. The existence of basic socioeconomic framework of the country anal the continuation of economic growth without any hindrance or" interruption depends upon subsistence of better law and order situation. In case of break-down of peace on account of any factors negative 398 effect is exerted on the economic growth. Better law and order as a determinant of economic development was spelled out in explicit terms in the theories of growth advanced by economists such as J.J Spangler and W. W. Rostow. In his Theories of Socio-economic Growth, Problems in the Study of. Economic Growth, 1949, J.J. Spangler has mentioned that the structure of the prevalent value system of a community can reasonably be considered as an important condition of law and order, because the value system defines the basic norms and ethos of human conduct. For example, if the value system of a society is predominated by sectarian or ethnic dispensations, then such a society would be continuously ridden by law and order problems, thus putting frequent twists and turns to the process of economic growth. W.W. Rostow, in Politics and the Stages of 399 Growth, 1971, has extended the theme of stage, `propensities' and their linkages to the role of political factors, institutions and the law and order framework' in determining the pattern of economic growth. The primary tasks of any legal government are defined as the provision of security, welfare and growth, and constitutional order. Thus there is a clear cut interconnection between law and order and economic development. 4. Article 14 of the Constitution of Pakistan ensures dignity of every individual. In the case of `Commissioner of Income Tax v. Eli Lilly Pakistan' reported as 2009 SCMR 1279, this Court observed that: "It is the duty and obligation of the State on account of the various provisions of 400 the Constitution to provide the atmosphere based on honesty by providing equal protection of law. Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 and 25 of the' Constitution." 5. Articles 15 and 18 of the Constitution, respectively relate to freedom of movement etc. and freedom of trade, business or profession and have been interpreted by this Court in the case titled "Government of Pakistan v. Zamir Ahmad" reported as PLD 1975 SC 667, in the following words:-"Article 18 of the Constitution of 401 Pakistan, which relates to the freedom of trade, business or profession, which corresponds to Article 15 of the interim Constitution, and which incidentally held the field at the relevant time, assures the citizens the right to enter upon any "lawful profession of occupation" and "to conduct any lawful trade or business". It is important to point out that the word "lawful" qualifies the right of the citizen in the relevant field. This clearly envisages that the State can by law ban a profession, occupation, trade or business by declaring it to be unlawful which in common parlance means anything forbidden by law. Prostitution, trafficking in women, gambling, trade in narcotics or dangerous drugs are common place instances of unlawful profession or trade. These are inherently dangerous to public health or welfare. 402 Therefore, on the wording of Article 18 of the Constitution, the right to enter upon a profession or occupation or to conduct trade or business can hardly be described to be a Constitutional or Fundamental Right when such right may be denied by law. In this respect our Constitution stands in sharp contrast with the corresponding provision of the Indian Constitution which omits the use of word "lawful" in the relevant Provision." The same principle was enunciated by this Court in the case of Arshad Mehmood (supra). This Court observed that the Government has the authority to regulate a lawful business or trade. Reasonable restriction, however, does not mean prohibition or prevention completely. Article 24(1) of the Constitution envisages 403 that no person I shall be deprived of his property save in accordance with law. 6. Any democratic set up consisting of citizens and functionaries in the country under the Constitution is bound to show its loyalty to the State, for to be loyal and faithful to the State is the basic duty of every citizen under Article 5 of the Constitution. This Court in the case of Shahid Orakzai v. Pakistan through Secretary Law (PLD 2011 SC 365) held that Article 5(2) of the Constitution has mandated that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and for every other person for the time being within Pakistan. The chosen representatives, who have acquired authority on behalf of their electors as members of the National Assembly, Senate or Provincial 404 Assemblies as per mandate of their oath, which they take before entering upon office, are bound to bear true faith and allegiance to Pakistan. The oath of the office of members of the National Assembly and Senate as set out in the Third Schedule provides that the members will perform their functions honestly, to the best of their ability, faithfully and in accordance with the Constitution and law; that they will act in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of Pakistan and they will preserve, protect and defend the Constitution. Therefore, while holding a constitutional office, the chosen representatives of the people have to remain true to their oath and to observe constitutional limits in all circumstances. 7. As per the scheme of the Constitution, all 405 the federating units, namely, Balochistan, Khyber Pakhtunkhwa, Punjab and Sindh are the essential components of the Federation by virtue of the parliamentary system of government prevalent in the country. The Federal Government is being run through Prime Minister and Federal Ministers and their executive authority extends to the matters with respect to which Parliament has power to make laws, etc. Similarly the Provincial set-up is being run through Chief Minister and the Provincial Ministers. The Governor of a Province is to be appointed as per Article 101 by the President on the advice of the Prime Minister. It is to be noted that the Governor who is holder of a constitutional post and acts as the agent of the President, has to keep the Federation informed of the affairs of the Province, although as per Article 105, the Governor shall act on the advice of the Cabinet or the 406 Chief Minister. 8. Under Article 130 of the Constitution the Chief Minister of the Province has to be elected by the votes of the majority of the total membership of the Provincial Assembly. The member who gets majority votes of the total membership shall be called upon by the Governor to assume the office of the Chief Minister and holds office during. the pleasure of the Governor, however, at any time, if the Governor is of the opinion that the Chief Minister is not commanding majority in the House, he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. The Chief Minister shall cease to hold office if a resolution for vote of no-confidence is passed by a majority of the total 407 membership of the Provincial Assembly as per Article 136. The President can suspend the functions of the Provincial Assembly subject to availability of the circumstances under Article 234. The Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly. In case the Governor intends to act against the Chief Minister, then it is incumbent upon him to summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly as referred to above. Reference may also be made to the case of Muhammad Anwar Durrani v. Province of Baluchistan reported as PLD 1989 Quetta 25 wherein the Court while interpreting Articles 107 and 112 of the Constitution observed as under: 408 "Under Article 107 of the Constitution, duration of Provincial Assembly is five years. Therefore, dissolution of Provincial Assembly before its constitutional period must be justified on the definite reasons provided by the Constitution extraordinary powers of dissolution of Assembly, must be exercised carefully, faithfully and in accordance with the provisions of the Constitution. According to their admissions, the Chief Minister had no clear majority except with the casting vote of the Speaker. In such circumstances, Constitution properly demanded that advice of such Chief Minister should have been weighed with caution and sanctity of basic charter should have been maintained. An Assembly is an important organ of the State and every effort should have been 409 explored which is possible under the law to save the Assembly from dissolution Governor, before taking extreme action of dissolution of Assembly under the advice of Chief Minister, ought to have advised him to seek vote of confidence before his advice was accepted. We have come to the conclusion that a Chief Minister who had not obtained vote of confidence from majority members of an Assembly could' not advise the Governor to dissolve the Assembly under Art. 112(1) of the Constitution." However, a Provincial Assembly cannot be dissolved by the Governor except under circumstances warranting such dissolution as per Article 112. 410 9. A Proclamation of Emergency may be issued by the President of Pakistan providing for imposition of emergency due to internal disturbance beyond the power of Provincial Government to control, a resolution from Provincial Assembly of the Province shall be required, however, if the President acts on his own, the Proclamation shall be placed before both houses of parliament for approval of each house within 10 days. As per Article 232(7), a Proclamation of Emergency is to be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting. A proclamation issued under Article 234 may, by like resolution, be extended for a further period not exceeding two months at a time, but no such Proclamation shall in any case remain in force for more than six 411 months. It is competent for the Majlis-eShoora (Parliament), in terms of Article 234(5) of the Constitution, in joint sitting to, inter alia, confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly. Under Article 245 of the Constitution, the Federal Government also intervenes in the affairs of the Provinces and may call upon the military to act in aid of civil administration. 10. The Federation and Provinces are equally responsible to adhere to the provisions of the Constitution, particularly for ensuring the enforcement of Fundamental Rights as guaranteed by the Constitution. The Federal and the Provincial Governments, though not directly, but indirectly share their responsibility in 412 running the affairs of the Province in accordance with the relevant provisions of the Constitution. 11. The National as well as Provincial Assemblies have to uphold constitutional norms but unfortunately, in the past, the political parties were blamed for having failed to assert their role in bringing true democratic rule based on the norms of social justice, peace and tranquility and on account of non-adherence to the constitutional provisions, which, resulted in dissolution of these bodies. In the years 1958, 1977 and 1999, when the Army Generals, in their wisdom, dismissed the Governments, dissolved the Assemblies and imposed martial law in the country. Each time, the matter came up before this Court, but legality was accorded to the acts of the 413 Generals. It was, however, for the first time in November, 2007 when like action taken by the then Chief of Army Staff was not accepted by the Superior Judiciary, which ultimately led to the ouster of the retired General and restoration of the democratic set up in the country. 12. Primarily, it is the responsibility of the Provincial Government to maintain law and order in the territories of the respective Provinces for the purpose of smooth running of economic and social life and without disturbance in the daily affairs because if the life and liberty of the citizens is, in any part of a Province at stake, highhandedness continues to remain unabated; atrocious acts like target killings, torture, extortion, etc., become the order of the day and then neither the Provincial Government can discharge its 414 duties nor the people consider themselves safe and protected. Virtually, in that case, discomfort painfully envelops the whole Province and decay soon creeps in breaking the very fabric of human life of the citizens. 13. The city of Karachi is the Capital of the Province of Sindh, and undoubtedly the hub of-great economic and financial activities. Karachi continues to be an important financial and industrial centre for Sindh and the whole country and handles most of the overseas trade of Pakistan and the Central Asian countries. It accounts for a .large portion of the GDP of Pakistan. Karachi's population has continued to grow and is estimated to have exceeded 18 million people. According to a legend, this city started as a fishing settlement, where a fisherwoman, Mai Kolachi, settled and 415 started a family. The village that grew out of this settlement was known as Kolachi-joGoth (The Village of Kolachi in Sindhi). When Sindh started trading across the sea with Muscat and the Persian. Gulf in the late 18th century, Karachi gained in importance; a small fort was constructed for its protection with a few cannons imported from Muscat. The fort had two main gateways: one facing the sea, known as Khara Dar (Brackish Gate) and the other facing the adjoining Lyari river, known as the Meetha Dar (Sweet Gate). The location of these gates corresponds to the present-day city localities of Khaaradar (Khara Dar) and Meethadar (Mitha Dar) respectively. By passage of 'time, it grew into a bigger city. The foundations of a city municipal government were laid down and infrastructure development was undertaken. New businesses started opening up and the 416 population of the town began growing rapidly. In 1878, the city was connected to the rest of British India by rail. Public building projects such as Frere Hall (1865) and the Empress Market (1890) were undertaken. In 1876, Muhammad All Jinnah, the Founder of Pakistan, was born in the city, which by now had become a bustling 'city with mosques, churches, courthouses, markets, paved streets and a magnificent harbour. By 1899 Karachi had become the largest wheat 'exporting port in the east. The population of the city was about 105,000 inhabitants by the end of the 19th century, with a cosmopolitan mix of Muslims, Hindus, Europeans, Jews, Parsis, Iranians, Lebanese, and Goans. By the turn of the century, the city faced street congestion, which led to South Asia's first tramway system being laid down in 1900. In later years, so Karachi prospered as a major 417 centre of commerce and industry during the Raj, attracting communities of: Africans, Arabs, 'Armenians, Catholics from Goa, Jewish, Lebanese, Malays, and Zoroastrians (also known as Parsees) in addition to a large number of businessmen. As the movement for independence almost reached its conclusion, the city suffered widespread outbreaks of communal violence between the majority Muslims and the minority Hindus, who were often targeted by the incoming Muslim refugees. In response to the perceived threat of Hindu domination, self preservation of identity, language and culture in combination with Sindhi Muslim resentment towards wealthy Sindhi. Hindus, the Province of Sindh became the first Province of India to pass the Pakistan Resolution, in favour of the creation of the Pakistani State. The ensuing turmoil of independence led to the expulsion of most of 418 Karachi's Hindu community. While many poor low caste Hindus, Christians, and wealthy Zoroastrians (Parsees) remained in the city, Karachi's native Sindhi Hindu community fled to India and was replaced by Muslim refugees who, in turn, had been uprooted from regions belonging to. India. District Karachi was chosen as the capital city of Pakistan and it accommodated a huge influx of migrants and refugees from India to the newly formed country. As a consequence, the demographics of the city changed drastically. However, it still maintained a great cultural diversity as its new inhabitants arrived from different parts of India. In 1958, the capital of Pakistan was shifted from Karachi to Islamabad and Karachi thus became the capital of Sindh. During the 1960s Karachi, was seen as an economic role model around the world. Many countries sought to emulate Pakistan's 419 economic planning strategy and one of them, South Korea, copied the city's second "Five-Year Plan" and World Financial Centre in Seoul is designed and modeled after Karachi. With economic growth and prosperity, peace and tranquility reigned in the city, business places were full of activity till late night with a lot of hustle and bustle seen all around and it came to be known as the city of lights. Being a big port city, it contributed, roughly stating, about 60- 70 per cent of the total revenue of the country. 14. The 1980s and 90's saw an influx of illegal Afghan refugees from the Afghan war into Karachi. Political tensions erupted and the city was wracked, at different points of time, with violence among groups widely speculated to be aligned with various political parties. In this behalf, a reference is 420 made to the report of the Commission of Enquiry into Karachi Affairs filed by Syed Iqbal Haider, ASC, which reflects, inter alia, the figures relating to population, geographical area, roads, vehicles, housing, police, number of riot cases of the years from 1985 to 1989, number of persons killed/injured, number of police officers/men martyred/injured, damage to private and public property including vehicles, petrol pumps, houses, shops, factories, cinemas, offices, schools, banks, police stations, railway stations, telephone exchanges, hospitals, imposition of curfews on account of clashes between religious groups (Shias & Sunnis), clashes between police and residents, ethnic riots, drug mafia, firing and looting, etc. 15. The law and order worsened during the 421 period from 1992 to 1994 when Operation Clean up was, allegedly, launched against Mohajir Qaumi Movement (MQM). Constitution Petition No.46 of 1994 was filed before this Court by MQM (Mohajir Qaumi Movement) through Senator Ishtiaq Azhar, Convener Central Coordination Committee. It was submitted in the said petition, inter alia, that the law and order situation in Karachi was deteriorating day by day, the workers of MQM were abducted, arrested and murdered and their dead bodies were not handed over to their relatives. It was further submitted that thousands of members of MQM were denied protection from illegal arrest without any warrant, extra-judicial detention, death in custody, etc. It was asserted that Fundamental Rights of the petitioner contained in Articles 9, 10, 14, 15, 16, 17, 18, 19, 22, 24 and 25 were violated, therefore, a declaration was sought 422 that the petitioner be allowed to function in accordance with the scheme of the Constitution. A voluminous reply was filed on behalf of the Federation and the Province denying the allegations attempting to present, allegedly; their side of the case citing horrifying instances holding MQM responsible for the worsening situation. The case was fixed on various dates, but ultimately it was not pursued and vide order dated 26-10-1999, the above petition was dismissed for non-prosecution. 16. It appears that on account of the worsening law and order situation, another operation was conducted during the year 1996 and similar action continued thereafter also. In this context, Constitution Petitions Nos. 6 & 13 of 1999 were filed by the MQM wherein complaints of physical torture of the 423 MQM workers and activists by the law enforcement agencies were agitated and directions to the law enforcement agencies for pre- and post-interrogation medical examination of all persons taken into custody by them by an independent medical practitioner of their choice to enable them to obtain certificate about their physical condition, were sought. It was pleaded that no suspect be subjected to any kind of interrogation until such a certificate is handed over to the next of his kin and in the event of evidence of physical torture, the respondent Governments be directed to register appropriate criminal cases against the members of the law enforcement agencies in whose .custody the suspect was entrusted for interrogation. Protection was also sought against arrest of elected representatives of MQM unless any incriminating material was available to 424 justify such an action. The case came up for hearing on 14-1-1999, but the representative of the petitioner stated that the case was to be argued by another counsel, therefore, request for adjournment was made. Thereafter, the petitioners never approached this Court for fixation of the petitions. 17. Critical/serious and dismal condition of law and order, once again emerged on account of various factors for the past few months, particularly in the months of July and August 2011 as widely reported in the print and electronic media, e.g. Al-Akhbar, The Daily Express, The News, The Daily Nawa-e-Waqt, The Daily Jang, The Daily Times, The Frontier Post, The Daily Nation, The Daily Sahafat, Aaj Ki Awaz and various News Channels, e.g., Express, GEO, SAMA, PTV, AAJ, Dunya, Dawn, etc., that 425 the lives and properties of the people of Karachi are not safe, frequent killings of innocent citizens have made their lives miserable; citizens are being abducted for ransom; beheaded dead bodies of innocent people with arms and legs tied and wrapped in sacs, are being recovered in large numbers; street crimes are in abundance and different groups are involved in target killings. Recovery of a large number of dead bodies almost everyday; brutality and heinousness of the offences; passivity of the Government functionaries; involvement of gangs in money extortion, nefarious and bloody activities of land mafia and drug mafia; damage to valuable properties of the citizens; shifting of capital from Pakistan to Malaysia and Bangladesh (as reported in some clippings) and transfer of dead bodies from Karachi to the places of their origins in different parts of the country causing 426 discomforting stir, harassment and fear in the minds of people, provide substantial evidence that Karachi has reached the verge of destruction posing a threat to the very stability of Pakistan. Recently, on this issue, different views were being expressed by the observers, analysts and anchor persons about causes of the catastrophe. 18. In that scenario, on a note put up by the Registrar of this Court, based on press clippings, CDs and DVDs provided by private TV Channels showing a dismal situation within the jurisdiction of several police stations of Karachi, the instant proceedings were initiated under Article 184(3) of the Constitution vide order passed on 24-8-2011 in the following terms:-- 427 "I have gone through above noted facts reported in the print/flashed in the electronic media, perusal whereof presents a bleak/.dismal picture of bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (Bhatta) from traders, which prima facie are violative of Articles 9, 14, 15, 18 and 24 of the Constitution. Prima facie, the Executive has failed to protect the life, liberty, dignity, property and freedom of the general public as is manifested in the above note/reported. Therefore, let this note be converted into petition under Article 184(3) of the Constitution. Notice be issued to learned Attorney General for Pakistan to appear and submit a comprehensive report about the above incident, which have been taking place in Karachi for the last more than one 428 month. The report should be based on the material to substantiate the same, which should be collected from the Federal and Provincial law enforcement and intelligence agencies. The Chief Secretary and PPO of the Province of Sindh are directed through Advocate General to submit details of the incidents in view of the fact noted herein above in the office note. They should also provide the number of persons who have been killed/injured in these incidents for the last one month. They should also place on record copies of the daily situation reports duly prepared by the concerned police officers for the perusal of PPO and the Chief Secretary. 429 The F.I.Rs. and other material be also filed in order to assess violation of the fundamental rights of the citizens noted herein above. Notices be also issued to President, Supreme Court Bar Association as well as President, Sindh High Court Bar Association to appear and assist the Court. Put up in Court on 26th. August, 2011." 19. On 26-8-2011, this Court, after a preliminary hearing, in view of ongoing bloodshed, killing, arson, collection of bhatta, etc., being committed in Karachi, passed the following order: "2. Learned Attorney General for 430 Pakistan has stated that due to paucity of time he could not prepare a report as per the directions of the Court, therefore, he needs some time. It has been explained. to him that on account of non-adherence to the constitutional provisions, reference to which has been made herein-above, incidents of brutal murders and commission of heinous crimes have occurred in which, according' to the information laid before the Court by the media, gangs are involved in extortion of money, nefarious/bloody activities of land mafia and drugs mafia and damage to the valuable properties of the citizens have taken place, therefore, relevant material need to be collected for ascertaining the extent of the violation of the constitutional provisions as such he may convey to all the law enforcing agencies at Federal and Provincial level 431 that they should provide all the necessary material highlighting the incidents with reference to the jurisdiction of various police stations, involvement of the accused persons, their identity, if possible, and failure of the police functionaries to proceed with them in accordance with law. To achieve this object, he should convene a meeting with the concerned functionaries and place a report on the next date of hearing, as is directed in order dated 24-8-2011. 3. Mr. Abdul Fattah Malik, learned Advocate General Sindh, has submitted copies of DSRs for the period commencing from 24-7-2001 to 23-82011 and has also filed brief of more than 232 F.I.Rs. which, according to him, could be collected by him so far, 432 therefore, he is required to do the needful before the next date of hearing. Orally, he has pointed out that during the past one month 306 people have been killed and their particulars shall also be furnished. He is required to furnish the same indicating the police stations where people were killed; F.I.Rs., if any, were registered; how many dead bodies of the killed person were found; how many of them were found beheaded and/or their arms and limbs were chopped and whether the investigation commenced and evidence collected or not against the accused involved. We have pointed out to him that he should convey to the Chief Secretary and IGP Sindh who are primarily responsible to ensure law and order in the Province that they should proceed against all types of accused persons across the board and on the next 433 date of hearing he would arrange a presentation in the Court room with reference to details of the police stations where the incidents have taken place and the manner in which the victims were killed, the F.I.Rs. registered and the names of persons posted in the police station who are responsible etc. so we may understand that the police is serious in conducting the investigation and to report to/challan the accused; so also in prosecuting them in Courts on solid material so that they may not go scot free on the basis of said information. He is also directed to submit in the same manner the details of the injured persons and the properties destroyed in rowdyism by the culprits and whether in respect of such occurrences evidence has so far been collected or not. The report must be comprehensive one and there should be a 434 presentation on the Power Point by the police. It is to be noted that further proceedings shall, as well, take pace in respect of violation of the constitutional position. 4. Mr. Abdul Hafeez Pirzada, learned Sr. ASC, has stated that he would appear on behalf of the Province of Sindh through Chief Executive and shall place important documents on record on or before the next date of hearing. 5. Syed Iftikhar Hussain Gillani, learned Sr. ASC, stated that he intends to file an application on behalf of Awami National Party (ANP) to become a party in the instant case. He may do so and even otherwise being a Senior Counsel of this 435 Court he can address the argument on the basis of material if he has in his possession to assist the Court. 6. Mr. Babar Awan, learned Sr. ASC, has stated that he will represent the Federation and he has filed nomination on behalf of Secretary, Ministry of Law and Justice, Islamabad. 7. Ms. Asma Jehangir, President Supreme Court Bar Association of Pakistan, has stated that there are certain preliminaries which need to be completed by the executive in respect of registration of cases, investigation and arrest of nominated accused persons. According to her, the names of all the accused persons have not been disclosed; 436 no action has been taken against those accused person's whose names have appeared in the F.I.Rs. and they have not been arrested. On this, learned Advocate General Sindh has replied that few arrests have taken place. Be that as it may, he is required to submit on the next date of hearing, the details of the same because, unless sufficient evidence is collected, no useful purpose will be served by sending them to face trial. 8. Mr. Anwar Mansoor Khan, President Sindh High Court Bar Association, has filed copies of resolutions of the Bar Association as well as press clippings and has pointed out that during recent incidents starting from January, 2011, nineteen Advocates have been murdered. He has also 'pointed out that even 437 yesterday i.e. 25-8-2011, one of brilliant Advocates of Sindh High Court namely Mr. Muhammad Murtaza Chinnoy has been brutally (sic) yet according to his information the investigation has not been conducted properly. The IGP Sindh is directed to look into the matter personally and communicate the report in this behalf through Advocate General Sindh on the next date of hearing. Learned Advocate General Sindh is also required to submit report mentioning the names of the culprits involved in the killings of the Advocates and showing whether they have been arrested or not. 9. The Chief Secretary and the IGP Sindh have submitted reports which may be kept on record. Let the case be adjourned to. 29-8-2011 to be fixed at 438 Branch Registry Karachi." of this Court at 20. It is important to note that in response to order dated 24-8-2011, the Chief Secretary in his report on the affairs of Karachi, stated as under: * After 9/11, the Phenomenon of international terrorism emerged in which bomb blasts, and beheading of foreigners attracted world attention. The terrorist groups targeted US diplomats and carried out suicide attacks at US consulate thrice. The French engineers were killed outside the Sheraton Hotel, even Muharram processions and shrines were not spared, besides suicide attack at CID building. 439 * During the briefing sessions, it was pointed out to me that army operation in the north and insurgency in Balochistan had caused internal displacement, in the garb of which certain criminal/hostile elements have moved into Karachi and have also smuggled arms. The hostile foreign agencies are backing up to cause chaos in the economic capital of Pakistan under a clandestine way against the State. Citing various reasons the emerging situation, I was told that Karachi population is approaching 18 million with diverse ethnic communities competing for resources. This mega city has been allowed to expand and grown in an unplanned way by the city managers in the past. Resultantly, the city lacks basic infrastructure to support such a large human settlement and provide 440 basic civic amenities to all the growing urban jungle of Katchi Abadies. * The Police have its own shortcoming and weaknesses both in terms of man-power and other resources, and have further drained due to security challenged in the post 9/11 scenario. * In early July, 2011 violent incidents took place in which 16 people were killed in Karachi. This was followed by an armed clash on 22nd July, 2011 between militant of, two groups in the area of District East (Malir and Landhi), resultantly, 14 people lost their lives. The fragile peace in Orangi Town was disturbed again due to clash between two ethnic communities in the last week of 441 July, 2011 taking a death toll of 37 lives. * On 17th August, 2011, Five (05) dead bodies were found in P.S. Garden area. On the same day, Ex-MNA was shot dead. These incidents triggered violence in other area i.e. Kharadar, Lyari, Sher Shah, Baldia and Chakra Goth. Resultantly, 62 persons were killed and 95 got injured from 17 to 20 August, 2011, which include 03 policemen, who embraced Shahadat in line of duty. During the past one month there has been incidents of killing. Cases Persons Registered Killed Murder 306 Killing 232 442 Gum shot injury 98 159 STEPS TAKEN BY THE CHIEF SECRETARY, SINDH * On 8th July, 2011, the government of Sindh entrusted powers under section 5 of ATA, 1997 to Pakistan Rangers (Sindh) enabling and making Rangers responsible to apprehend the criminal elements involved in firing and killing of innocent . citizens. * The Government of Sindh further authorized Rangers to cordon, search and use force to control the situation in the 443 affected areas of Karachi. Copy of the Notification bearing No.SO(LE-I)/HD/666/11, dated 8th July, 2011 (copy submitted as Annex A). * On 25th July, 2011, the President of Pakistan, while reviewing the Karachi situation, directed to enhance the operational capability of Police (AnnexB). Accordingly, the Government of Sindh immediately made available and released Rs.450 million for procurement of APCs from HIT. These' 15 APCs will be delivered by end of August, 2011 to Sindh Police. * The policy directive on the subject was issued by the Home Department vide No.SO(LE-II)/HD/3-1/2011 dated 23 444 August, 2011, wherein the lead implementing agency i.e. Police was reminded of legal responsibility to ensure safety of people's life and establish public order as per law, irrespective of any consideration of political linkage of anyone involved in this cycle of violence. Copy of the letter spelling out the policy of the subject is attached as Annex `C'. 21. The IGP Sindh also filed a report to the following effect:-* Karachi is the 7th largest city of the world having peculiar/ethnic nature comprising of Punjabi, Pakhtoon, Balochi, Sindhi and Urdu speaking communities. It has a population of 445 approximately 18th million and spread over area on 3527 sq. kms. * The ethnic divide became pronounced during last few years as a result of influx of people from other parts of the country. With this change in demography, there are over 150 areas where two or more communities are facing each other. * It has long history of terrorism/violence as is indicated of the cases mentioned below: HIGH PROFILE CASES (2004-2007) 446 S. Police No Station . 1. Mithadar 2004 Incidents No of decease d Bomb Blast 23 in Haidery Masjid Situated inside the compound of Sindh Madrasatul-Islam 2. Brigade Bomb Plast 22 2004 in Imam Bargah Ali Raza 3. Boat Basin Corps 10 2004 Commande r Motor Cade Firing incident at No. of Injure d 98 29 13 447 4. 5. 6. 7. Clifton Bridge Site 2004 Bomb 10 Blast at Binoria restaurant Soldier Bomb 55 Bazar 2006 Blast at Nishtar Park Various PSs 12 May, 40 2007 2007, arrival of Chief Justice in Karachi Bahaduraba Bomb 119 d 2007 Blast in the welcome procession of Ms. 44 125 127 353 448 Benazir Bhutto at Karsaz, Main Shahrah-eFaisal 8. Preedy 2009 IED 17 explosion in Ashoora Procession near Light House Traffic Signal, M.A. Jinnah Road, Karachi 9. Saddar 2010 IED 16 explosion Parking 39 19 449 10. Ferozabad 2010 Area in front of emergency JPMC Karachi IED 11 explosion Ramp Shahrah-eQuaideen Nursery Bridge 24 * During past one month there has been incidents of killing: Cases Persons Registered Killed Murder/Killing 306 450 232 Gun shot injury 98 159 * In response Karachi Police has arrested 26 accused in target killings in the last month. To date 117 target killers 'have been arrested and 179 cases have been deterred and challenged. * In the last one month 3075 raids been conducted wherein Pos/absconders and 1162 criminals been arrested. 03 K.Koves, Pistols/Revolvers, 02 Rifles, Repeaters and 03 Hand grenades been recovered from criminals. have 495 have 508 13 have 451 * The prolonged power and water shortage in Karachi city have also resulted in frequent public disorder on daily basis, which engages the police in fire fighting duties. In the previous months police has arrested 1142 miscreants involves in arson and breach of peace. * Action is also being taken against extortionists/Bhatta collectors. 70 Bhatta collectors have been arrested and 43 cases have been detected. In the previous month 13 extortionists were arrested. * In spite of the limited resources the Police and Law Enforcing Agencies have made hectic efforts to combat the terrorist activities in the city and have been able to control the terrorism and 452 target killing. The law enforcing agencies are now in full control of the situation and are prepared to met any challenging situation for ensuring the safety of life and property of the citizens. 22. On 29-8-2011, the IGP gave a power point presentation in the Courtroom, relevant excerpts whereof are as under: Causes of Violence  Recent demographic changes  Ethnicity, Sectarianism and factional in-fighting  Clashes between land and bhatta mafias 453  Deep mistrust among the ethnic groups  Easy access to illicit weapons and misuse of Arms Licenses Types of Killings  Killings due to personal enmity  Political motivated killings  Sectarian killings  Ethnic killings  Gang war killings  Target killing of Police Officials  Victims of stray/cross fire 454 ETHNIC INTERFACES/FLASH POINTS IN KARACHI Katti Pahari Qasba Colony Sharafi Goth Banaras Chowk Quaidabad New Karachi Sachal Surjani Town Malir city Urdu speaking v. Pathan Urdu speak v. Pathan Urdu speaking v. Bloch Urdu speaking v. Pathan Urdu speaking v. Sunni Tehreek Sunni Tehreek v. Sipah-e-Sahaha Urdu speaking v. Afghanis Pathan v. Seraiki speaking Urdu speaking v. 455 Baloch Landhi Urdu speaking v. Pathan Al-Falah Urdu speaking v. Baloch Korangi 2½ (Chakra Urdu speaking v. Goth) Sindhi Khokharpar/Saudabad Urdu speaking v. Sindhi DEAD BODIES FOUND BEHEADED/TORTURED FROM 24-7-2011 TO 24-8-2011 POLICE STATION NO. OF DEAD BODIES 456 N.K.I. Area Kalri `SITE-B Docks Total: 4 2 I 1 8 DEAD BODIES FOUND IN GUNNY BAGS FROM 24-7-2011 TO 24-8-2011 S.No. POLICE NO. OF STATION DEAD BODIES 1. Baghdadi 6 2. Nazimabad 2 3. Dsrakhshan 1 4. Risala 1 457 5. 6. 7. 8. 9. 10. 11. Nabi Bux 1 Kharadar 1 Bin 1 Sharafi Goth 1 Rizvia 1 Iabal Market 1 Mominabad 1 Total 17 PATTERN OF VIOLENCE FROM 24-7-2011 TO 24-8-2011 S. DAT AREAS DISPUR PERSO PERSO N E OF TED NS NS o. VIOLEN PARTIES KILLE INJUR CE D ED 458 1 24 Baldia i, Urdu 91 July Taimoria Speaking to 31 Kalakot v. July Pashtoon ii. Urdu Speaking v. Baloch 2. 1st to Surjani Urdu 38 3rd Town Speaking Aug and 2011 Seraiki v. Pashtoon 3. 6th Peerabad Urdu 13 Augu SITE, Speaking st Orangi v. 2011 Pashtoon 4. 17the Kharadar Gang war 111 to , convertin 24th Mithadar g into Augu , Lyari, ethnic st, Chakra violence 47 53 16 146 459 2011 Goth (Urdu speaking v. Baloch and Sindhi). New Phenomena of abduction and killing Starting from 17th August, 2011 > Triggered by the kidnapping and killing of five Baloch residents of Singo Lane, Lyari (4 of them footballers) Date 17-8-2011 18-872013. 19-8-2011 20-8-2011 Death/Toll Injured 17 30 29 23 22 39 07 15 460 21-8-2011 22-8-2011 23-8-2011 24-8-2011 25-8-2011 26-8-2011 27-8-2011 28-8-2011 13 13 08 02 04 02 01 02 09 10 09 11 02 03 06 04 POLICE SHAHEEN/INJURED From 24-7-2011 to 24-8-2011 S. Police No. Station 1 2 SITE-B Zaman No. of Police Station 1 4 No. of Police Injured 29 461 Town 3 Rizvia 4 Sharafi Goth 5. Awami Colony 6. Pak colony TOTAL 1 1 1 1 9 29 23. It has been pointed hereinabove that the peace of Karachi city had been disturbed by criminals by committing both heinous as well as petty crimes. Some of the major killings have been highlighted in the presentation given by the IGP, which has been reproduced hereinabove, including 232 incidents of murder wherein 306 persons were killed and 98 incidents of gunshots causing injuries to 159 persons also took 462 place. According to available figures, approximately, more than 50 dead bodies in gunny bags have been recovered from several localities including areas where dominant majority of people speaking Urdu, Pashto, Balochi etc. are living. In this behalf, the IGP Sindh furnished details along with F.I.R. numbers and the areas where such dead bodies were found, brief of which is as under:- Sl.No. Police Station Number of Dead bodies 1. Baghdadi 06 2. Nazimabad 02 3. Darakshan 01 4. Risala 01 5. Nabi Bux 01 6. Kharadar 01 7. Bin Qasim 01 463 8. 9. 10. 11. Sharafi Goth Rizvia Iqbal Market Mominabad 01 01 01 01 24. Some torsos i.e. human bodies without heads and limbs, rendering it difficult to identify the same, have also been found. Besides, buses with passengers have been set on fire as a result whereof several passengers were burnt alive while others died inside the bus due to fear and shock. In this behalf, reference is made to F.I.R. No.460/2011 Police Station Jackson, West Karachi. Similarly, perusal of F.I.R. No.314/2011 under sections 302/324 PPC r/w section 7 ATA, dated 5-9-2011 registered at Police Station Pakistan Bazar, reveals how brutally people were killed by the criminals. Besides, so many persons 464 were abducted and later their dead bodies were thrown in the streets. During the months of July and August 2011 the streets of Karachi, sorrowfully, saw a large number of such like dead bodies. Some of abducted persons were, however, recovered by the intervention of the law enforcing agencies and on our direction, their statements were recorded. Out of them, only four persons, namely, Muhammad Junaid s/o Muhammad Hussain, Muhammad Rafiq s/o Muhammad Hussain, Mehtab s/o Shakeel and Sarfaraz s/o M. Ahmed agreed to lodge the F.I.R. whereas rest of them, on account of fear, were not agreeable to do it. Reference may be made to the following two statements: 25. When the hearing of this case was in progress, about four dead bodies were recovered and on our direction, the IGP 465 submitted a report on 9-9-2011 to the following effect: "(1) An unknown dead body was found (on 5-9-2011) in Red Colour gunny Bag at Katchara Kundi, Grahaib Nawaz Dispensary, previous UC-8, Office Sector-14, B Orangi Town without head, hands and legs inquest u/s 174, Cr.P.C. has been conducted. The dead body is still un-identified. The dead body is kept in the Edhi Center. A case vide F.I.R. No: 314/2011 u/s 302/324 PPC r/w 7ATA has been registered through State at Pakistan Bazar Police Station against unknown accused persons, on 5-9-2011. The investigation is under way. The detail report is enclosed at Annex "A" 466 (2) Another dead body was found in a Bag (Bori) on road between Country Heights & Yasir View Gulzar-e-Hijri Scheme No: 33, Karachi. A case vide F.I.R. No. 580/2011 u/s 302/365/34 PPC, at Police Station Sachal on the complaint of one Zabih Khan s/o Haji Sardar Muhammad was registered against the nominated accused namely Sikandar Javed (APMSO), Ahmed Shah, (3) Umair Siddiki, (4) Zohaib, (5) Liaquat 'Ali Qureshi s/o Ghazi Uddin, (6) Khutram, (7) Zeeshan. The incident was witnessed by one Muhammad Hassan Saleem s/o Muhammad Saleem Hussain, (2) Syed Obaid-ur-Rehman, along with other PWS Naseeb Ullah s/o Badshah Gul. The I.0 arrested one accused person 'namely Ahmed Khan s/o Khan Muhammad on the pointation of the complainant. Later on, after the 467 satisfaction of the complainant he was released being not involved in this offence. Hectic efforts are underway to arrest the nominated accused person, copy of the compressive report is enclosed at Annex-"B". (3) The third dead body was found in Garage behind Car Parking of JPMC Hospital, Karachi. Proceeding u/s 174 Cr.P.C. was conducted by police. (7-92011). No mark of torture was found on the dead body. Postmortem was held at Jinnah Hospital Karachi by MLO vide TM No: 741 of 2011, dated: 7-9-2011, in which MLO opined that his death was occurred due to' asphyxia/strangulation. In this connection F.I.R. No: 281/2011 u/s 302, PPC was lodged on behalf of State at Saddar Police Stain u. During 468 investigation no any eye-witness has appeared/traced as yet. Efforts are underway and NADRA head office was contacted to provide assistance, 'who cooperated and identify the deceased as Muhammad Farukh Nawaz having CNIC No: 56302-2990221-9, his temporary address was provided as CB-58/4, Kakool Road Abbottabad. The family of the deceased was traced out by the District Police' Officer Abbottabad Mr. Muhammad Kareem Khan. The brother of the deceased namely Javed (Cell No.0334- 8963217) was contacted who disclosed that his brother deceased was a chartered accountant and was doing his internship in some organization in Karachi and living in Defence Garden. He also disclosed that his brother returned to Karachi on 7-9-2011, after celebrating Eid with his family in 469 Abbottabad. Further investigation is underway. The copy of the report as enclosed herewith at Annex-"C". (4) On 7-9-2011, Police Constable No.18609 namely Javed Iqbal s/o Abdul Ghafoor was going on his Motor Cycle. Two unknown Motor Cyclist stopped him at Bakra Peri Road, near Evergreen School, Malir City Karachi and opened fire upon him who sustained bullet injures and expired on the spot. A case F.I.R. No.248 of 2011 u/s 302/34, P.P.C. on 7-9-2011 at Police Station Malir City on behalf of state is registered. During investigation two persons from the locality disclosed involvement of two criminals namely Kaloo Baloch s/o Mawali Baloch and Akbar Punjabi s/o Baloch Khan in this offence. Hectic 470 efforts are underway to arrest them. Copy of the report is attached herewith at Annex-" D". (5) The forth death body was found of one Faheem-ul-Kareem Advocate along with two other persons namely Wajid and Mst. Quratulain from a Flat No.7/C, 14th Commercial Street, DHA, Ph-II, Karachi. A case vide F.I.R. No.340 of 2011 under section 302/34, PPC at Police Station Defence is registered. A detailed report of Mr. Tariq Razzaq Dharejo, SP Saddar Division South, Karachi regarding efforts made to trace and arrest the accused is attached herewith at Annex-"E". (It has been taken back) 471 (6) One young man namely Sahreef s/o Muhammad Anwar Baloch has been kidnapped from near NA'DRA Office, near Bahadurabad Police Station. In this regard F.I.R. No.114 of 2011 u/s 365, P.P.C. has been registered at Police Station Kalakot by one Muhammad Akram s/o Muhammad Anwar. Detail progress report is attached herewith as Annex-"F". The list of 17 kidnappees supplied by Advocate Mr. Jameel Ahmed Virk on behalf of the applicants in C.M.A. No.555 of 2011 w h o have returned to their homes in injured condition. In this regard the concerned quarters have submitted their report and in all 16 cases the F.I.Rs. have been registered the same is enclosed herewith as Annex "G". The 472 investigation is under way. Further 34 dead bodies have found in Bags. In this regard a comprehensive report has already been submitted before this honourable Court on 26-8-2011. 26. It is noteworthy that the law enforcing agencies have detected a torture cell during hearing of the case at Karachi and succeeded in getting video clips of the most heinous, gruesome, brutal, horrible and inhuman acts of the criminals, who are found cutting throats of men and drilling their bodies. But, now it is informed that more such cells have been detected in different parts of Karachi. 27. As far as the injured or wounded persons 473 are concerned, they are countless in number in all the disturbed areas of Karachi where different political parties have got dominant population on the basis of the language being spoken by them. It may be noted that the objective of above-noted brutal and gruesome incidents is to terrorize the citizens of Karachi and keep the entire society a hostage. 28. An impression has been created that on account of demographical reasons, the above issue has its origin on ethnic divides, but Mr. Abdul Hafeez Pirzada, Sr. ASC appearing for the Province of Sindh, and Syed Iftikhar Hussain Gillani, Sr. ASC for ANP vehemently dispelled such an impression and we also tend to agree with them because we feel that it is a turf war between various groups on account of their financial and 474 economic interests in the huge economic, industrial and commercial activities, etc. of the city of Karachi highlighted in the presentation given by the IGP, relevant aspects whereof have been noted herein above. However, there is, and has for some time in the past, been a visible element of ethnic strife in Karachi and some elements and parties benefited from keeping the tension alive. There are not only Urdu Speaking, (When the Court uses the term `Urdu Speaking' it is for a specific purpose. As it is the language common to all and even those who proudly speak Pashto, Punjabi, Sindhi or Baluchi, can and do speak Urdu), Pashtun, Sindhis, and Balochis, Punjabis, Saraikis, but foreigners and others also live in Karachi and all of them are the victims of violence, crime, fear and insecurity, as is evident from F.I.Rs., reports, etc. submitted from time to time by 475 the police department. Some of the hardened criminals, who associate themselves with the political parties do take support of the powerful groups/political, parties as is evident from the reports of the joint investigation team of various intelligence agencies including ISI and others. These reports have been filed by Syed Iftikhar Hussain Gillani, throwing sufficient light on the criminal activities of these heartless criminals such as Ajmal Pahari, Kamran Madhuri and many others. It is to be noted that the aforementioned JIT reports were prepared after 'causing arrests of various accused persons involved in the commission of offences this year in the month of March. 29. It goes without saying that if the involvement of above accused persons allegedly aligned with a political party is 476 established, it may entail serious consequences for said political party as well, because a political party cannot be formed or cannot operate in a manner prejudicial to the sovereignty or integrity of Pakistan. 30. It is important to note that the learned counsel representing various political parties have though not categorically denied affiliation of above noted persons with their parties, but have taken exception to the JIT report; on the ground that the same are not admissible in evidence. It is also important to note that during the discussion, it has been informed that two notorious accused persons, namely, Kamran Madhuri and Sohail Commander involved in criminal activities were not nominated in the F.I.Rs., yet on arrest of one of them he has been found in injured condition. Investigation is 477 being conducted to collect relevant material against them. It is also astonishing that most of the accused persons nominated in crimes have got their acquittal on the plea of alibi and false involvement. We are surprised to know that the law enforcement agencies, who are supposed to conduct investigation honestly, had allegedly involved persons falsely or half-heartedly in the commission of offences in which their fellow policemen were murdered. Indeed, they have not shown any professionalism and have failed to bring the real culprits to book. 31. It seems that the police primarily being responsible to enforce law and order has no intention to deliver. Either they are scared or they are dishonest or absolutely lack the requisite skills. It could be that in the year 1992 operation clean up was launched 478 against MQM wherein statedly, the police had played an active role, but subsequently, 92 police officers/officials disappeared and up till now there is no clue of their whereabouts nor is it known that by whom, and under whose patronage, such persons were abducted and/or killed. Another reason appears to be that police force has been highly politicized, recruitments have been made on political considerations. It came to light during hearing of the case that in police force many police officers have been recruited on political considerations who have managed to occupy such posts for extraneous considerations and senior officers in the rank of SSP, SP and DSP etc. have been inducted into the force from other organizations without following any rules and even they have not undergone training for the purpose of policing. To highlight this aspect, following information has been 479 obtained Sindh:- from the Advocate General, 1. Mr. Dost Ali Baloch from Intelligence Bureau, absorbed in Sindh Police with effect from 14-10-1998, presently working as Director General Finance, CPO Sindh Karachi (BS-20).\ 2. Mr. Muhammad Malik from FIA, absorbed in Sindh Police with effect from 31-10-2007, presently working as Director General Traffic, Planning & Regulation, Sindh Karachi (BS-20). 3. Mr. Muhammad Riaz Soomro from Anti-Narcotic Force, absorbed in Sindh Police with effect from 26-2-2008; 480 presently working as SSP, District Mirpurkhas (BS-19). 4. Mr. Muhammad Ali Baloch appointed as Assistant Director (Computer) in Sindh Police on 6-4-1999, presently working as SSP, District Tando Muhammad Khan (BS-19). 5. Mr. Abdul Hadi Bullo from OMG, absorbed in Sindh Police with effect from 16-7-2003, presently working as SSP District Matiari (BS-19). 6. Mr. Attaullah K. Chandio, from Solicitor Department, absorbed in Sindh Police with effect from 1-6-1995, presently working as SP, Special Branch, 481 Mirpurkhas (BS-18). 7. Mr. Shahid Hussain Mahesar on deputation from Intelligence Bureau, with effect from 26-7-2009, presently working as SSP Political (SB) Karachi (BS-18). 8. Mr. Zameer Ahmed Abbasi on deputation from National Accountability Bureau with effect from 31-12-2008, presently working as SDPQ/Frere, District South, Karachi Range (BS-17). 9. Mr. Shiraz Asghar Shaikh, on deputation from PEMRA with effect from 23-8-2008, presently working as SDPO/Darakhshan, District South, 482 Karachi Range (BS- 17). 10. Mr. Faisal Mukhtar Vakaasi on deputation from National Accountability Bureau with effect from 31-3-2009, presently working as Principal, Training & Recruitment, Karachi Range (BS-17). 11. Mr. I. D. Mangi, on deputation from ACE, Sindh with effect from 10-4-2009, presently working as DSP/ACLC, Karachi Range (BS-17). 12. Major (R) Khurram Gulzar, reemployed on contract basis as DIGP (BS-20) for a period of one year with effect from 27-12-2010. 483 13. Col.(R) M. A. Wahid Khan, reemployed as Principal, S.B,B. EPT Razzakabad, Karachi (BS-19) for a period of one year with effect from 1-92008. Extension granted for two years with effect from 1-9-2009. 14. Major Col. (R) Muhammad Ahsan Umar, re-employed as SSP, District East, Karachi Range (BS-19) for a period of two years with effect from 24-9-2010. 32. The IGP stated that presently, the total strength of police force is 32524, out of which approximately 12000 are' performing security duties, including 8000 deployed with VIPs and only 20000 personnel of police force were left for the purpose of policing of 18 million people in Karachi. He 484 stated that by means of the Sindh (Repeal of the Police Order, 2002 and. Revival of the Police Act, 1861) Act, 2011 passed by the Provincial Assembly, the Police Order, 2002 has been repealed in the Sindh Province, as a result of which the Police Act, 1861 has been revived and the IGP is helpless in transferring even a DSP from one place to another. 33. The majority of the police force performing duty in Karachi comprises brave and devoted officers and men. They risk their lives often targeted by unidentifiable enemies enjoying mobility in action. They deserve the respect of the nation. However, as the IGP conceded that 30-40 percent of police force are non-cooperative either for the reasons that they have secured their appointments on political considerations or 485 they have associated themselves with different groups including political parties, having vested interests in the affairs of Karachi; therefore, at times it becomes very difficult for him to effectively take action against the real culprits. When called upon to explain as to how two accused persons involved in case F.I.R. No.434 of 2011, Police Station Zaman Town, have been released by the Administrative Judge, ATC, accepting their plea of alibi, where a concerted attack was launched upon police officers/officials who were being transported in a private bus towards the disturbed areas for controlling riots and bringing peace, resulting in death of 6-7 policemen, causing injuries to others, the IGP disclosed that the investigating officer has been suspended and the then SHO of the relevant Police Station has already been moved out and disciplinary proceedings are in hand against him. This 486 categorical statement in respect of only one incident is sufficient to infer that the statement so made by the IPG carries sufficient weight. If the police official/officers are not sincere with the victims belonging to their own rank and file, what expectation could one have from such force, which, admittedly, stands politicized, for initiating forceful action against the culprits involved in causing target killing, brutal murders, cutting limbs of human bodies and putting the dead bodies and torsos into bags with a view to terrorizing the society as a whole in general and the inhabitants of Karachi city in particular. During the period of one month, i.e. from 24 July to 24 August, 2011, as per information submitted before the Court about the killing of people of 306 persons 232 F.I. Rs. have been registered mostly against unknown persons and on completion of investigation 487 in many cases, reports have been submitted declaring the cases for disposal under A class, which according to the relevant Police Rules means that the crime is untraceable. Summary of the said cases is as under:- S.No Police . Station 1. 2. 3. F.I.R. No. and Status of Date Investigatio n. Aram 189/2011. A-Class Bagh dt/31-7-2011 u/s 302/34 PPC Daraksha 265/2011 dt. A-Class n 3-8-2011 u/s 302 PPC Eidgah 197/2011 dt. A-Class 27-7-2011 u/s 302/324/34 PPC u/s 488 4. Eidgah . 200/2011 dt. 302/34 PPC u/s 30-7-2011 5. Eidgah 202/2011 dt. 1-8-2011 u/s 302/324/34 PPC 6. Eidgah 203/2011 dt. 302/34 PPC u/s 5-8-2011 7. Eidgah 206/2011 dt. 9-8-2011 u/s 324/302/34 PPC 8. Frere 150/2011 dt. 302 PPC u/s 9-8-2011 9. Garden 144/2011 dt. 302 PPC u/s 25-7-2011 10. Garden 151/2011 dt. A-Cclass A-Class A-Class A-Class A-Class A-Class A-Class 489 11. Garden - 12. Garden 13. Kalakot 14. Kalakot 15. Kalakot 16. Nabi Bux 364/302, PPC u/s 2-8-2011 154/2011 dt. 364/302 PPC u/s 5-8-2011 146/2011 dt. 302/34 PPC u/s 27-7-2011 99/2011 dt. 24-7-2011 u/s 302/324/34 PPC 100/2011 dt. 302/34 PPC u/s 25-7-2011 102/2011 dt. 302.34 PPC u/s 29-7-2011 137/2011 dt. 302 PPC u/s 24-7-2011 A-Class A-Class A-Class A-Class A-Class A-Class 490 17. Napier 18. Napier 19. Napier 20. Preedy 21. Risala 22. Boat Basin 23. Boat Basin 119/2011 dt. 24-7-2011 u/s 302/324/34 PPC 124/2011 dt. 302/34 PPC u/s 3-8-2011 127/2011 dt. 302/34 PPC u/s 9-8-2011 473/2011 dt. 302 PPC u/s 9-8-2011 127/2011 dt. 302/34 PPC u/s 10-8-2011 391/2011 dt. 324/34 PPC u/s 1-8-2011 323/2011 dt. 4-8-2011 u/s A-Class A-Class A-Class A-Class A-Class A-Class A-Class 491 324/34 PPC 24. Boat 324/2011 dt. A-Class Basin 5-8-2011 u/s 324/34 PPC 25. Defence 276/2011 dt. A-Class 28-7-2011 u/s 324/34 PPC 26. Garden 149/2011 dt. A-Class 31-7-2011 u/s 224/34, PPC 27. Eidgah 193/2011 dt. A-Class 23-7-2011 u/s 302.34 PPC 28. Kaki 176/2011 dt. A-Class 8-8-2011 u/s 147/148/149/4 35 PPC 29. Preedy 474/2011 dt. A-Class 9-8-2011 u/s 384 PPC 492 34. The IGP has also made before this Court another admission while giving his presentation, summary of which has been reproduced hereinabove, that there are no go areas within the jurisdiction of different police stations. In this view of the matter, we are of the opinion that the police without having any commitment/dedication and other reasons highlighted hereinabove, is not in a position to make any break through unless the whole force is de-politicized and their morale is boosted by the senior officers, having credible service/training, commitment, dedication always ready to discharge their functions willingly and to the best of their ability. In the briefing, it has also been pointed out that so many members of the police lost their lives in encounters with the criminals. It is a matter of great concern that the perpetrators do not feel any hesitation in killing the police personnel for 493 the purpose of creating' atmosphere of fear, harassment to terrorize the whole society. The number of such police officers has been noted herein above. In addition to it, in recent incidents on 5th or 6th September, 2011, a dead body of a policeman, namely, Javed Iqbal was found in the area of Bakra Peri Road, near Evergreen School, Malir City Karachi, regarding which F.I.R. No.248 of 2011 was registered at Police Station Malir City. The killing of the innocent persons has also not stopped even now, as has been pointed out that a dead body of an unknown person, who was badly tortured, was found lying in the car parking of a hospital, reference of which has already been made herein above. There are series of such incidents, which are taking place, one after the other. Statedly, one policeman succeeded in causing arrest of one alleged accused person, namely, Shah Zore on stated 494 allegation that he was responsible for killing innocent persons and after his arrest, on his pointation, a dead body packed in a carton was recovered, reference of which has been made in the order dated 9-9-2011. In the case, where Rangers had succeeded in identifying a torture cell in Liyari area and a DVD was prepared in respect of an incident, reference of which has been made hereinabove, on watching it, one cannot explain in words the degree of shamelessness, cruelty, barbarity and brutality except summarizing that the heinous acts of committing sodomy upon the victims and butchering them with blunt knives/churris were committed brazenly. This is just one instance of the brutality and barbarity, taking place in a torture cell which has been pointed out to us, and it is not known that how many other such like torture cells are being maintained by the criminals 495 in their dens here and there in the vastness of the city to satisfy their self as a vengeance. As a matter of tit for tat, gruesome and cruel methodologies have been adopted for the purpose. 35. On 7-9-2011, Director General Rangers Sindh, Major General Aijaz Ahmed Chaudhry appeared in Court and stated that the problem in Karachi is very serious, rather more serious than that of South Waziristan. However, he submitted that if there was a will to do it and once the State decides to bring peace to the city of Karachi, no criminal could stand before the State and escape prosecution. He further stated that the factors which contributed to the problem of the city of Karachi happened to be that it is a huge city, it is based on community system, a lot of development work has been 496 done, but there is unjust development of infrastructure on the basis of communities residing in vat ions parts of the city. There is polarization to an unprecedented level on the political, ethnic, and/or religious divides. According to him one day ethnic problem occurs and next day religious problem starts. The situation has reached such a stage where even the health sector is divided on ethnic and parochial basis. A patient or injured person of one community is refused admission or medical treatment by a hospital under influence of another community. The problem can only be solved through application of special means as well as requesting political leadership to eliminate militancy from their wings. The political face of the city has been taken hostage by militant groups of political parties. Political parties are penetrated by the criminals under the garb of political groups who use party 497 flags. The militants and criminals are taking refuge in the lap of political and ethnic parties which use the flags of these parties to commit illegal activities with impunity. The paramilitary force is, otherwise, fully capable of controlling the law and order situation, the deployment of Rangers be further extended to allow them to bring permanent peace in the city. There are religious gatherings, problems like KESC issue, ethnic violence, protests/riots over issues like Watan card distribution, Namoose-Risalat, as a result whereof law enforcement agencies are over stretched. The Government machinery has realized the seriousness of the situation and assured that Rangers would bring the city back to normalcy and ensure that people feel safe.. He also suggested the constitution of a highlevel body comprising the Chief Minister and other stakeholders to monitor progress 498 in maintaining law and order as well as ensuring good governance' and social justice. The committee may be bound to send progress reports to the Chief Justices of the High Court and Supreme Court for perusal. 36. The DG Rangers further stated that he had requested in security conferences that there should be no bar for the Rangers to operate anywhere in the city, inasmuch as to go to the offices of political parties, which housed ammunition, weapons and criminals, and now by this notification this power has been given, According to him, in a recent briefing on the law and order situation, restrictions on the operations of the Rangers, were relaxed, directing that the police, Rangers and other law enforcement agencies should not be stopped from conducting raids 499 in any area, including on the offices of political parties, if the criminals take refuge there. He said that Rangers had conducted successful raids and arrested culprits involved in target killings whose details would be shared with the Court. He said that Karachi is a mega city but unfortunately an unjust infrastructure had divided it on ethnic and political basis. 37. In conclusion, the DG stated that no amount of application of kinetic means, be it Rangers, or Army can fix the problem on long term, rather it is the political process, which finally prevails and provides hope to the nation. Suggesting the way forward, the DG Rangers submitted that there is a need to train prosecutors, improve forensic evidence, etc. According to him, the recent issuance of the notification indicates that 500 there is a realization at the political and Government level, forcing them to come up with solution. He expressed the desire that the notification should continue until peace returns and so should the drive to round up the criminals and terrorists. 38. Besides, the DG Rangers candidly conceded that bhatta [extortion money] is a normal practice and criminals are collecting bhatta, which, every day, runs into at least 10 million rupees and it is being charged from an ordinary shopkeeper, rehriwala (push-cart peddler) up to the top businessman by criminals who have got the backing of the political parties who are the stakeholders. In this behalf, Special Branch of the Police Department had filed a report confidentiality of the same has not been claimed. In this report, a list of 501 chanda/bhatta collectors is available, a perusal whereof indicates that bhatta is being collected invariably by the persons who claim their association with ANP, MQM, PPP, Jamat-e-Islami, Sunni Tehrik, etc. Besides, activists of the organizations banned under the Anti-Terrorism Act, 1997 are also indulging in these activities. It is an admitted fact that street crime like snatching cell phones, purses, etc. from the citizens is rampant in the city and there cannot be two opinions that the citizens, by and large, are suffering filled with fear and confusion. They are so frightened that none of them comes forward even to lodge the report, rather they prefer to pay bhatta or unhesitatingly agree to hand over their valuables during the commission of street crimes. The whole city seems to be in the grip of fear. 502 39. The learned Attorney General has also submitted a report of Intelligence Bureau without claiming confidentiality and also arranged briefing of ISI only for the Members of the Bench. The Provincial Government also produced on record report of CID and it too has not claimed confidentiality in respect of the same. Here it will be pertinent to note that although, a notice was issued to the learned Attorney General but the Federation chose to be represented through a private counsel Dr. Babar Awan, learned Sr. ASC, who remained associated with the case throughout the proceedings. As far as Province of Sindh through Chief Minister is concerned, it is represented by Mr. Abdul Hafeez Pirzada, learned Sr. ASC and the learned Advocate General who represented the Chief Secretary and IGP. The names of the interveners are available in the title of 503 the case, which includes MQM through Dr. Farogh Naseem, ANP through Syed Iftikhar Hussain Gillani, Sindh Bachayo Committee through Mr. Abdul Mujeeb Pirzada Sr.ASC, PML (N) through Faisal Kamal Alam ASC, Awami Tehrik Party through its President Mr. Rasool Bux Palijo ASC, etc. They have also put forward their respective pleas containing allegations and counter allegations. Except the learned counsel appearing for the official respondents i.e. Federation and the Province of Sindh, all others including the 'interveners, unequivocally affirmed violation of fundamental rights of the public enshrined in Articles 9, 14, 15, 18 and 24 of the Constitution. 40. How important has been the Suo Motu intervention of this court and how vital is the 504 "depoliticization of the administration", particularly police, is indicated in the instant case itself. Although the notification ostensibly empowering the Rangers was issued on July 8, 2011, but the killing spree did not stop because, obviously, a depoliticized administration was not available. Thus, in July alone as many as 306 people were murdered as mentioned above, and a greater number were injured. A number of dead bodies were discovered in gunny bags, many mutilated and disfigured. The killing spree continued at this pace and in just one week before this Court, on 24-82011, took Suo Motu notice of the situation as many as 109 citizens had been killed as per the power point presentation given by the IGP on 29-8-2011. Out of 25 dead bodies found in gunny bags, 9 were found beheaded and tortured. These, and other related figures, mentioned in para 22 above 505 eminently justified interference by the Court under Article 184(3). In fact the situation was 'so grave that the Court decided immediately to shift the venue of the hearings to Karachi. All concerned were put on notice. Although a few more tragic incidents did take place during the hearing of the case and these have been mentioned in detail herein, but there was a dramatic drop in the number of crimes of the variety presently under consideration after the court had intervened. The lesson to be learnt from this is simple. Initiation of Suo Motu proceedings by the Court sent one straight and simple message to an administration working under political pressures: "Take no political pressure from any quarter whatsoever". This was an unstated message, but it was loud and clear. 506 The administration remained, and remains, under the political Government of the Province of Sindh but the administrators immediately understood that they would not be called upon to obey any illegal orders nor to discriminate between adversaries. They would be fair and impartial and the results have been dramatic so far. A depoliticized administration suddenly came to life in fighting crimes, criminals and Mafias, political and otherwise. That is what the intervention of the Court achieved. We the Judges have no guns to fight the terrorists, but we have the authority to ensure and strengthen the hands of those who actually apply the law. In many cases the Suo Motu intervention of the Court has produced such results, stopping corruption and maladministration, and Karachi demonstrates this. All over the democratic world judicial review only strengthens democracy and 507 should be welcomed by democratic governments, not resented and resisted. It is now only hoped that this restraint on political and partisan interference will also continue after the Court winds up these proceedings so as to enable the Police, the administration, and the Rangers to do their jobs in accordance with the law. 41. Too often representatives of the Government are seen castigating the Courts for the release of alleged terrorists and criminals. This Court itself is often subjected to blistering criticism, especially by members or allies of the ruling party on talk shows and television programmes. The Court has shown restraint and has no ill-will. Even otherwise the Judges cannot enter upon a public or private debate about their performance or judgments even though the 508 criticism is highly politicized and unjustified as it often is these days. But the burden that rests upon the executive and the legislature cannot be passed on to the Courts. Courts can only act upon evidence and material presented before them. This has to be collected by the executive. The Courts cannot be blamed if the executive/police fail in their duty. Moreover the evidence thus collected must be evaluated according to the laws and rules prescribed by the legislature. In these especial circumstances it is for the Government to ensure that cogent evidence to support prosecution is collected and presented in the Court. It is for the legislature to provide processes for the protection of witnesses, Policemen and Judges and for the executive/government to fully implement these reforms. Intelligence sharing and action on intelligence that is uncorrupted by political or extraneous 509 influence must also be ensured by the executive. The Court expects that a new culture of independent, depoliticized, and non-partisan prosecution comprising efficient, capable prosecutors will be established by the government to aid and assist the Courts. The Government must also depoliticize the administration/prosecution. This will be for its own good and for that of the nation. The Courts will keep a watchful eye and strike down all illegal pressures and orders that are brought to their notice. 42. Adversarial proceedings are defined as proceedings relating to, or characteristic of an adversary or adversary procedures. The term ""adversarial" has been defined in the Concise Oxford English Dictionary, Eleventh Edition, Revised, as under:-. 510 "1. Involving or characterized by conflict or opposition. 2. Law (of legal proceedings) in which the parties involved have the responsibilities for finding and presenting evidence." In "Advanced Law Lexicon" the term ""Adversarial Process" has been defined as under: "A process in which each party to a dispute puts forward its case to the other and before a neutral judge, soliciting to prove the fairness of their cases." In the American Heritage Dictionary of the English Language, Fourth Edition: Published by Houghton Mifflin Company, 511 the term is defined as under: -"Relating to or characteristic of an adversary; involving antagonistic elements: "the chasm between management and labor in this country, an often needlessly adversarial …..atmosphere" (Steve Lohr)." In Collins English Dictionary - Complete and Unabridged, it is defined as under: "1. Pertaining to or characterized by antagonism and conflict 2. (Law) Brit having or involving opposing parties or interests in a legal 512 contest US term adversary" The adversarial system (or adversary system) is a legal system where two advocates represent their parties' positions before an impartial person or group of people, usually a jury or judge, who attempt to determine the truth of the case, whereas, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case. 43. The adversarial system is a two-sided structure under which criminal trial courts operate that pits the prosecution against the defence. Justice is done when the most effective and rightful adversary is able to convince the judge or jury that his or her. perspective on the case is the correct one. 513 44. As against the above, the term "inquisitorial" is defined in "Concise Oxford English Dictionary, Eleventh Edition, Revised as under: -"1. Of or like an inquisitor. 2. Law (of performing an examining role)" In "Advanced Law Lexicon" 3rd Edition, 2005, it is defined in the following words: "The system of criminal justice in most civil law nations, where judges serve as prosecutors and have broad powers of 514 discovery." Webster's New World College Dictionary Copyright 2010, by Wiley Publishing, Inc., Cleveland,. Ohio defines it as under -" 1. of or like an inquisitor or inquisition 2. inquisitive; prying" Collins World defines it as under:- English Dictionary "1. of or pertaining to an inquisitor or inquisition. 515 2. exercising the office of an inquisitor. 3. law. a. pertaining to a trial with one person or group inquiring into the facts and acting as both prosecutor and judge. b. pertaining prosecutions. to secret criminal 4. resembling an inquisitor in harshness or intrusiveness. 5. inquisitive; prying. 516 45. The Free Dictionary describes it in part, as "a method of legal practice in which the judge endeavours to discover facts whilst simultaneously representing the interests of the State in a trial". Under the inquisitorial model, the obligations of a Judge are far greater and he is no longer a passive arbiter of proceedings but an active member of the fact finding process. 46. An inquisitorial system is a legal system where the court or a part of the court is actively involved in investigating the facts of the case, as opposed to an adversarial" system where the role of the court is primarily that of an impartial referee between the prosecution and the defense. Inquisitorial systems are used in some countries with civil legal systems as opposed to common law systems. Also countries 517 using common law, including the United States, may use an inquisitorial system for summary hearings in' the case of misdemeanors such as minor traffic violations. In fact, the distinction between an adversarial and inquisitorial system is theoretically unrelated to the distinction between a civil legal and common law system. Some legal scholars consider the term "inquisitorial" misleading, and prefer the word "non-adversarial". 47. The inquisitorial system applies to questions of criminal procedure as opposed to questions of substantive law; that is, it determines how criminal enquiries and trials are conducted, not the kind of crimes for which one can be prosecuted, nor the sentences that they carry. It is most readily used in some civil legal systems. However 518 some jurists do not recognize this dichotomy and see procedure and substantive legal relationships as being interconnected and part of a theory of justice as applied differently in various legal cultures. 48. In some jurisdictions, the trial judge may participate in the fact-finding inquiry by questioning witnesses even in adversarial proceedings-. The rules of admissibility of evidence may also allow the judge to act more like an inquisitor than an arbiter of justice. 49. The proceedings, which are initiated as public interest litigation in civil or criminal matters cannot be treated. as adversarial because of the definition of nature of the proceedings where without contest between 519 the parties a final finding has to be recorded, as it has so been held in the case of Tobacco Board v. Tahir Raza (2007 SCMR 97). In this judgment, matter relating to maintainability of writ of quo warranto was considered and it was held that such writ is to inquire from a person the authority of law under which he purports to hold public office and it is primarily inquisitorial and not adversarial, for the reason that a relater need not be a person aggrieved; such exercise can be done suo motu, even if attention of High. Court is not drawn by the parties concerned. The same principle has been followed by the Court in Ch. Muneer Ahmad v. Malik Nawab Sher (PLD 2010 Lahore 625). 50. In the case of Philips Electrical Industries of Pakistan Ltd. v. Pakistan (2000 520 YLR 2724) it has been observed that public interest litigation is inquisitorial in nature where the Court may even delve into fact finding so as to promote public interest. 51. In the case of Muhammad Munawar v. Deputy Settlement Commissioner (2001 YLR 2350) the Lahore High Court has observed that concept of adversarial proceedings under which it is the duty of the parties to produce all relevant evidence, has been departed from inasmuch as the Courts have also been called upon to share this burden either on the application of the parties or suo motu to summon and record all the relevant evidence in order to decide the case effectively and finally; such rule is one of wisdom, for if a party to the litigation fails in its duty, the Court is not denuded of its power to summon the relevant evidence 521 so that the dispute between. the parties is decided fairly and finally. 52. The Indian Supreme Court had the occasion to define these expressions in various cases, including the cases of Peoples' Union for Democratic Rights v, Union of India [AIR 1982 SC 1473] [(1982)3 SCC 235], Bandhua Mukti Morcha v. Union of India [AIR 1984 SC 802], Peoples' Union for Liberties v. Union of India [AIR 1996 Cal 89] and State of Uttaranchal v. Balwant Singh Chaufal [(2010) 3 SCC 402]. In Peoples' Union for Democratic Rights' case (supra) the Indian Supreme Court has observed as follows:-"2. ….We wish to point out with all the emphasis at our command that public 522 interest litigation which is a strategic arm of the legal aid movement and which is intended to bring justice within the reach of the poor masses, who constitute the low visibility area of humanity, is a totally different kind of litigation from the ordinary traditional litigation which is essentially of an adversary character where there is a dispute between two litigating parties, one making claim or seeking relief against the other and that other opposing such claim or resisting such relief. Public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, 523 ignorant or in a socially or 'economically disadvantaged position should not go unnoticed and unredressed. That would be destructive of the Rule of Law which forms one of the essential elements of public interest in any democratic form of government. The Rule of Law does not mean that the protection of the law must be available only to a fortunate few or that the law should be allowed to be prostituted by the vested interests for protecting and upholding the status quo under the guise of enforcement of their civil and political rights. The poor too have civil and political rights and the Rule of Law is meant for them also, though today it exists only on paper and not in reality. If the sugar barons and the alcohol kings have the Fundamental Right to carry on their business and to fatten their .purses by exploiting the 524 consuming public, have the 'chamars' belonging to the lowest strata of society no Fundamental Right to earn an honest living through their sweat and toil? The former can approach the courts with a formidable army of distinguished lawyers paid in four or five figures per day and if their right to exploit is upheld against the government under the label of Fundamental Right, the courts are praised for their boldness and courage and their independence and fearlessness are applauded and acclaimed. But, if the Fundamental Right of the poor and helpless victims of injustice is sought to be enforced by public interest litigation, the so called champions of human rights frown upon it as waste of time of the highest court in the land, which, according to them, should not engage itself in such small and trifling matters. 525 Moreover, these self-styled human rights activists forget that civil and political rights, priceless and invaluable as they are for freedom and democracy simply do not exist for the vast masses of our people. Large numbers of men, women and children who constitute the bulk of our population are today living a subhuman existence in conditions of abject poverty, utter grinding poverty has broken their back and sapped their moral fibre. They have no faith in the existing social and economic system. What civil and political rights are these poor and deprived sections of humanity going to enforce? This was brought out forcibly by W. Paul Gormseley at the Silver Jubilee Celebrations of the Universal Declaration of Human Rights at the Banaras Hindu University: "Since India is one of those countries which has given 526 a pride of place to the basic human rights and freedoms in its Constitution in its chapter on Fundamental Rights and on the Directive Principles of State Policy and has already completed twenty-five years of independence, the question may be raised whether or not the Fundamental Rights enshrined in our Constitution have any meaning to the millions of our people to whom food, drinking water, timely medical facilities and relief from disease and disaster, education and job opportunities still remain unavoidable. We, in India, should on this occasion study the Human Rights declared and defined by the United Nations and compare them with the rights available in practice and secured by the law of our country." 527 The only solution for making civil and political rights meaningful to these large sections of society would be to remake the material conditions and restructure the social and economic order so that they may be able to realise the economic, social and cultural rights. There is indeed close relationship between civil and political rights on the one hand and economic, social and cultural rights on the other and this relationship is so obvious that the International Human Rights Conference in Tehran called by the General Assembly in 1968 declared in a final proclamation: "Since human rights and fundamental freedoms are indivisible, the full realisation of civil and political rights without the enjoyment of economic, 528 social and cultural rights is impossible." Of course, the task of restructuring the social and economic order so that the social and economic rights become a meaningful reality for the poor and lowly sections of the community is one Which legitimately belongs to the legislature and the executive, but mere initiation of social and economic rescue programmes by the executive and the legislature would not be enough and it is only through multidimensional strategies including public interest litigation that these social and economic rescue programmes can he made effective. Public interest litigation, as we conceive it, is essentially a co-operative or collaborative effort on the part of the petitioner the State or public authority 529 and the court to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach social justice to them. The State or public authority against whom public interest litigation is brought should be as much interested in ensuring basic human rights, constitutional as well as legal, to those who are in a socially and. economically disadvantaged position, as the petitioner who brings the public interest litigation before the Court. The State or public authority which is arrayed as a respondent in public interest litigation should, in fact, welcome it, as it would give it an opportunity to right a wrong or to redress an injustice done to the poor and weaker sections of the community whose welfare is and must be the prime concern of the State or the 530 public authority. 3. There is a misconception in the minds of some lawyers, journalists and men in public life that public interest litigation is unnecessarily cluttering up the files of the court and adding to the already staggering arrears of cases which are pending for long years and it should not therefore be encouraged by the court. This is to our mind, a totally perverse view smacking of elitist and status quoist approach. Those who are decrying public interest litigation do not seem to realise that courts are not meant only for the rich and the well-to-do, for the landlord and the gentry, for the business magnate and the industrial tycoon, but they exist also for the poor and the downtrodden the have-nots and the handicapped and the 531 half- hungry millions of our countrymen. So far the courts have been used only for the purpose of vindicating the rights of the wealthy and the affluent. It is only these privileged classes which have been able to approach the courts for protecting their vested interests. It is only the moneyed who have so far had the golden key to unlock the doors of justice. But, now for the first time the portals of the court are being thrown open to the poor and the down- trodden, the ignorant and the illiterate, and their cases are coming before the courts through public interest litigation which has been made possible by the recent judgment delivered by this Court in Judges Appointment and Transfer cases." In Bandhua Mukti Morcha's case (supra) 532 after referring to the cases of Peoples' Union for Democratic Rights, the Court has observed as under: "9. We have on more occasions than one said that public interest litigation is not in the nature of adversary litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation, because it would provide them an occasion to examine whether the poor and, the down-trodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception 533 and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. When the Court entertains public interest litigation, it does not do so in a caviling spirit or in a confrontational mood or with a view to tilting at executive authority or seeking to usurp it, but its attempt is only to ensure observance of social and economic rescue programmes, legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against 534 violation of their basic human rights, which is also the constitutional obligation of theexecutive. The Court is thus merely assisting in the realisation of the constitutional objectives." In Peoples' Union for Liberties's case (supra) after referring to the cases of Peoples' Union for Democratic Rights and Bandhua Mukti Morcha's case (supra), the Calcutta High Court has observed as under:-"122. It is quite obvious that in a public interest litigation the petitioner and the State are not supposed to be pitted against each other, there is no question of one party claiming or asking for relief against the other and the Court deciding between them. Public interest litigation is 535 a co-operative litigation in which the petitioner, the State or public authority and the Court arc to co-operate with one another in ensuring that the constitutional obligation towards those who cannot resort to the Courts to protect their constitutional or legal rights is fulfilled. In such a situation the concept of cause of action evolved in the background of private law and adversary procedure is out of place. The only question that can arise is whether the prayers in the petition, if granted, will ensure such constitutional or legal rights." 53. We have observed during the hearing that instant proceedings are not adversarial, but inquisitorial. The information/material laid/produced before this Court by the State 536 functionaries in pursuance of the order dated 24-8-2011, followed by the order of the Full Bench dated 26-8-2011 and the material produced by the interveners, reference of which has been made in the order referred hereinabove is sufficient for making right conclusions. We were informed that besides figures of crimes committed during one month commencing from 24th July to 24th August, 2011 noted hereinabove; about 1300 persons were killed during this year, whereas about 1800 persons, similarly lost their lives in the year 2010. Thus, having gone through the material, we have no hesitation in our mind that at large scale the residents of Karachi have been subjected to bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc. and that their inalienable Fundamental Rights, such as, security of person; 537 inviolability of dignity of man; freedom of movement; freedom of trade, business or profession and protection of property have been violated. 54. The fact that deadliest criminals having affiliation with various groups are responsible for bloodshed, arson, looting, recovery of money (bhatta) from common citizens and traders causing terror in the city of " Karachi is not denied. Fearful as they are, the people of Karachi have been spending sleepless nights particularly during the past months of July and August is also not denied. The accused persons belonging to any political or specific group are so powerful that the police for the reason stated have failed to arrest or collect evidence for proving the guilt against them before a Court of Law 'as we have noted hereinabove 538 and according to summary of disposal of cases, most of the cases have already been disposed of as "A" 'Class, details of which have been mentioned hereinabove. M/S Syed Iftikhar Hussain Gillani, Abdul Mujeeb Pirzada, Ghulam Qadir Jatoi, Rasool Bakhsh Palijo and Syed Iqbal Haider representing various applicants/interveners have blamed MQM to have let their activists loose who, according to them, are largely responsible for creating dismal situation of law and order perpetrating the alleged wrongful acts and causing terrorism in the city. Whereas, Dr. Farogh Naseem, learned ASC, appearing on behalf of MQM voiced in his submissions that in actual fact the Urdu speaking inhabitants of Karachi are the victims of atrocious acts of criminals aligned with various other groups, particularly having influence in Baloch area of "Lyari and Kati Pahari/Qasba Colony area largely 539 inhabited by Pashtuns. According to him, hundreds of MQM workers have been tortured and killed at the hands of such groups. Thus, it is quite evident that uncontrollable law and order situation prevails, which has wrapped the city of Karachi in terror to the utmost discomfort of common citizens including traders, remains undisputed, the details of which are stated more specifically in the foregoing paragraphs. The DG Rangers, in his submissions, has been so vocal to say that the law and order situation in Karachi is worse than it happens to be in Waziristan. The IG Police has also not lagged behind in admitting the brazen facts. This Situation has not only heavily affected the common citizens of Karachi, it has virtually paralyzed the industrial and commercial activities ultimately affecting the whole country as Karachi being a port city and commercial 540 hub of country, it contributes 60-70% of revenue. Thus, there cannot be two opinions that the worsening law and order situation in Karachi badly affecting the inviolable dignity, life and liberty of multitudes of people; so also their property, movable and immovable involve violation of Fundamental Rights constituting it a matter of public importance. 55. It is to be noted that, primarily it is the duty of the Province through its executive authorities to control the law and order situation and ensure implementation of Fundamental Rights of citizens. But prima facie it seems that the Provincial Authorities have not fulfilled their constitutional duty. Under the Constitution, equally it is the obligation of the Federation to protect every Province against internal disturbances as 541 well as external aggression and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution. 56. It has been pointed out by learned counsel for the interveners representing different parties and groups including MQM, ANP, Baloch Ittehad Tehrik and others that their supporters/party men have been butchered and are kidnapped and their whereabouts as yet are not known. 57. According to the opinion expressed before us, the Provincial as well as Federal Government cannot be considered to have been oblivious of their duties when right under their nose, a large number of persons were being brutally butchered everyday on 542 the streets of Karachi, which are littered with dead bodies and torsos (human bodies without head and limbs); sometimes also found in abandoned places and the injured writhing in pain; so also when innocent citizens were being burnt inside vehicles and torture cells were being detected by the law enforcing agencies. The state of helplessness prevailed, throughout, in the city of Karachi the face of Pakistan being its economic hub accommodating persons belonging to different communities, including Urdu speaking, Pashtuns, Saraiki's, and others. The dead bodies of the persons belonging to all walks of life i.e. Urdu speaking (word used for the purpose of identifying in this case), Pashtuns, Balochis and Punjabis are being sent to their homes, within Karachi and outside Karachi i.e. to Khyber Pakhtunkhwa, Baluchistan and Punjab, which is causing insurmountable fear and 543 harassment throughout the country badly affecting economic activities on account of disturbances taking place in Karachi. Many people have wound up their business and have shifted from Karachi to other places inside the country and outside causing colossal loss not only to the residents of Karachi individually, but to overall economy of the country. The whole nation is crying hoarse, media highlighting the tragic incidents day and night in such a state also cannot be considered to have not come to the knowledge of Provincial and Federal functionaries. Unfortunately, no appropriate and timely action has been taken by the Provincial as well as Federal Governments to stop these atrocious acts. Material has been brought on record, such as, reports of JIT, CID, IB, etc. (copies of which have been provided to us) bearing horrifying stories of heinous crimes committed by 544 dangerous criminals aligned with various political parties and groups; besides very critical situation of law and order reflected in the classified briefing of ISI cannot be considered that the same are not within the knowledge of the Provincial and the Federal Governments. This sensitive material is, prima facie, sufficient to hold that the Provincial Government has failed to perform its constitutional obligations and duties. Therefore, for the purpose of enforcement of Fundamental Rights denied to the people as highlighted hereinabove, this Court in exercise of its jurisdiction under Article 184(3), which is in the nature of inquisitorial proceedings, has the same powers as are available to the High Court under Article 199 of the Constitution in view of the judgments passed in the cases of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Syed Wasey 545 Zafar v.. Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109) and Federation of Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752). 58. There is no denial of the fact that ensuring good governance, maintaining law and order situation and providing security to the persons is a primary duty of the Government. Our religion has also emphasized upon the significance and sanctity of `life' as it has been noted in the opening Para of the judgment, according to which, if anyone killed a person, it would be as if he killed the whole humanity, and, similarly if anyone saved a life, it would be as if he saved the whole humanity. Similarly, it is the responsibility of the ruler (government) to ensure security of all its 546 citizens, high or low, without any discrimination. It would be appropriate to refer here to the saying of the Second Caliph Umar ibn al-Khattab (R.A) that if a dog dies of hunger on the banks of the River Euphrates, Umar will be held responsible for dereliction of duty. [Mohtsham, Saeed M., Vision and Visionary Leadership - An Islamic Perspective]. Mr. Abdul Hafeez Pirzada, Sr. ASC appearing on behalf of the Chief Executive of the Province suggested in his arguments that a wake up call should be given to the Provincial Government by this Court, so that it may enforce the constitutional provisions. The suggestion of the learned counsel, however, does not sound well as 'this is the duty of the ruler to maintain the law and order without any interference of the Court. It is the history of this country that on account of law and order situation, disturbance, absence of peace, etc., 547 many governments were dismissed in the past. In this behalf, reference may be made to the instruments of dissolution of Parliaments issued by civilian constitutionally elected Presidents which were upheld by the Supreme Court from time to time:-* Order dated 29-5-1988 whereby the President of. Pakistan dissolved the National Assembly under Article 58(2)(b): "And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss' of innumerable valuable lives as well as loss of property: 548 And whereas the life, property, honour and. security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered. [Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166)] * Order under Article 58(2)(b) of the Constitution on 6th of August, 1990 dissolved the National Assembly (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is not carried on in accordance with the provisions of Constitution, 549 despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. [Khawaja Ahmad Tariq Rahim v. the Federation of Pakistan (PLD 1992 SC 646)] * Order dated 5-11-1996 whereby the President dissolved the National Assembly under Article 58(2)(b) "Whereas during the last three years thousands of persons in Karachi and 550 other parts of Pakistan have been deprived of their right to life in violation of Article 9 of the Constitution. They have been killed in Police encounters and Police custody. 59. In Ahmad Tariq Rahint's case (supra), the dismissal of government was maintained by this Court because of failure of the Federal Government to protect the Provincial Government of Sindh from internal disturbances, relevant Para therefrom is reproduced herein below : -"28. Ground (d) in the order of dissolution is that the Federal Government had failed in its duty under Article 148(3) of the Constitution to protect Province of Sindh against 551 internal disturbances despite heavy loss of life and property. In this respect, stand taken on behalf of the petitioner is that matter relating to law and order situation in the Province was responsibility of the Province as enshrined in the Constitution. It is' stated in the rejoinder filed in the High Court that Government of PPP entered into accord with' MQM accommodating its members in the Sindh Cabinet. Due to certain reasons there was unilateral break-up of the accord by MQM which had withdrawn support from the Government. The Provincial Government was doing its level best to deal with law and order situation as required under the Constitution and provisions of relevant laws. On this subject, there were several meetings between the Federal Government and the Provincial Government of Sindh and 552 exchange of letters took place between President, Prime Minister and the Governor of Sindh. In fact joint efforts were made sincerely to deal with the situation of law and order in Sindh to find a permanent solution. It is submitted on behalf of the petitioner that Federal Government and Government of Sindh wanted assistance of the army to the limited extent of aiding the civilian government as contemplated under the provisions of Criminal Procedure Code but for some reason could not succeed in carrying out amendment in section 138A of Criminal Procedure Code. One suggestion from the Provincial Government was that unlicensed arms should be recovered from people without any discrimination. Then unpleasant incident took place in Hyderabad on 26th and 27th May, 1990 in Pacca Qila. There 553 were so many casualties in the firing. President wrote a letter on 28th May, 1990 addressed to the Prime Minister, asking her to appoint judicial enquiry Commission to fix the responsibility for the events that took place in Hyderabad expressing his opinion in favour of use of armed forces in aid of civil power as contemplated under Article 245 of the Constitution." Relevant Para from the judgment of this Court in Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) is also reproduced hereinbelow: -"54. The law and order situation in Karachi and other parts of Sindh should not have been allowed to deteriorate and 554 get out of control. The custodial killings are to be explained satisfactorily as is required under the law. The killings in encounters with police are to be explained in proper manner and the Court has to give finding whether they were justified or not. There is absolutely no explanation available or produced on the record as to how the persons taken in custody and some of them in handcuffs while leading the Police party/Law Enforcing Agencies for making recoveries, were allowed to be killed by some unknown persons who did not want recoveries to be made. If a person is taken into custody then he is bound to be dealt with strictly according to law and is to be punished only when the case is proved against him. He cannot be allowed to be killed by any person while he is in custody. If this is done then it 555 clearly shows that there is no writ of law but law of jungle. This shows inefficiency which tantamounts to total failure of the Constitutional machinery. If both the Provincial Government and the Federal, Government jointly dealing with such situation fail then it can be said that the ground is available to the President to come to the conclusion that a situation has arisen in which the Government of the Federation cannot be run in accordance with the provisions of the Constitution and the Constitutional machinery has failed. 60. It would not be out of context to note that Mr. Pirzada learned ASC had submitted that the Chief Executive was ready to take the following measures in future to maintain law and order situation in Karachi. The 556 statement so filed is reproduced hereinbelow in verbatim:- STATEMENT ON BEHALF OF COUNSEL FOR THE PROVINCE OF SINDH In pursuance of the proceedings before, and the order of this Hon'ble Court in the above matter dated 30-8-2011, the undersigned counsel for the Province of Sindh has met the Chief Minister, Sindh 'and as a result thereof, he has been instructed and requested to make the following/submissions. 1. The Chief Minister, Sindh has expressed his resolve and determination to deal with and handle the present 557 criminal and crime situation in the city of Karachi (the subject matter of the above proceedings) without any discrimination whatsoever, irrespective of any party affiliations, that the criminals may or claim to have and that every effort will be made to deal with and control the situation by all necessary action within the framework and letter and spirit of the Constitution the law. 2. The Chief Minister firmly believes that his Government and the law enforcement agencies and instrumentalities available to him are competent in this behalf and that there shall be no lack of will to act on their part. 558 3. Without prejudice to the generality of the above submission, the Chief Minister, respectfully wants to convey to this Hon'ble Court, the specific actions that he proposes to take in this behalf: a. For the purpose of prevention and control of crime, steps are underway to increase the strength of the police force and supplement and buttress the same by the Rangers. It may be pointed that deployment of Rangers (which are absolutely necessary and vital to work in coordination and cooperation with the Police and are 10,000 in numbers in the city of Karachi) impose a bearable burden of less than Rs.400,000,000 (Rupees Four Hundred Million) per year, in juxtaposition to the benefits flowing 559 from their proper utilization. The burden of their salaries and emoluments is and continues to be borne by the Federal Government and not the Provincial Government. b. 1000 additional Police force has been transferred from the interior of Sindh to perform duties in the city of Karachi. The large number of the Police force available in Karachi, which has not been allocated to crime control will be reduced beginning immediately so as to provide sufficient numbers to crime control. It may be pointed that at least a half of the number reserved for special duties as disclosed by the Inspector General Police, Sindh, is either assigned to traffic control or security 560 to VIP's and also non-governmental private parties and institutions. Notices have already been issued to these non-governmental and private organizations, that the force allocated to them is to be withdrawn and they have been advised to make private arrangements for their security. In the next immediate step, the force assigned to VIP's will be reduced, wherever possible in consonance with and without jeopardizing the requirement of their security. c. Lastly, a 5000 strong contingent Police force, is being recruited, which will be trained and fully capable of performing their duties within the next 12 months. These recruits will receive special and sophisticated 561 training at 9 Police training centers in the Province. d. Closed Circuit Televisions (CCTV's) and cameras are being installed at 900 different locations in the city, which shall monitor, record and report commission of crimes. As stated in the power point presentation (from pages 48 onwards), new and effective APC's have been ordered, which will augment and enable easier penetration by the law enforcement agencies into the crime areas. As stated on page 48, a new motorcycle force named `Eagle Force' has already been introduced and is functional. 562 e. 20 mobile forensic laboratories are being acquired, which shall be manned by extensively trained personnel, with the assistance of friendly countries with advanced technology and expertise. f. The next important aspect in the maintenance of law and order is an effective, meaningful and productive investigation for the purpose of apprehension of real culprits, sophisticated and proper collection of evidence, eye-witnesses and compilation of record, so as to enable the Prosecutors to go with confidence and secure convictions of the guilty. The Police Act 1861 has already been brought into force and solid investigation can be achieved through 563 suitable amendments in the law. In this behalf, desired results can be achieved by strengthening the prosecution agencies and institutions. It may be necessary to bring suitable amendments in the existing laws, which may inter alia, provide for safety and security of witnesses and maintenance of full record and date of habitual offenders, so as to make it difficult for them to be released on bail as a matter of course. g. As far as the question of aliens/noncitizens living in Karachi and estimated to be 2,500,000, this matter relates to a considerable extent to the Federal Government and the Counsel representing it shall have better locus standi to address this 564 Hon'ble Court. 4. That these proceedings have been initiated Suo Motu by this Hon'ble Court, pro bono publico and are not adversarial and therefore, the submissions on behalf of the Province of Sindh have been made in that context. This Hon'ble Court has also made observation to the same effect. Therefore, the right of rebuttal, of the Province of Sindh, is not waived if others parties, who have brought in their petitions or have joined these proceedings make any submissions, which are required to be answered rebutted and controverted." But subsequently, he waived his right of rebuttal. 565 61. Some of the above commitments have already been reiterated by the IGP Sindh in his presentation, summary whereof has been reproduced hereinabove. Similarly, as it has been pointed out in the report submitted by the Chief Secretary Sindh dated 26-8-2011 that after large scale bloodshed in Karachi, now the Administration has realized the gravity of the situation and has conferred powers upon the Pakistan Rangers vide notification dated 8-7-2011, which reads as under:-"No. SO(LE-I)/H D/6-66 GOVERNMENT OF SINDH HOME DEPARTMENT Karachi dated July 08, 2011 566 NOTIFICATION SUBJECT: PAKISTAN RANGERS (SINDH) EMPLOYMENT IN THE MAINTENANCE OF LAW AND ORDER IN KARACHI, In the wake of recent incidents of terrorism/target killings in certain parts of Karachi, Government of Sindh, in exercise of the powers invested under section 10 of the Pakistan Rangers Ordinance, 1959, read with section 5 of the [Anti-Terrorism Act, 1997], hereby make responsible Pakistan Rangers (Sindh) for the maintenance of law and order and to apprehend the criminal elements involved in firing and killing of 567 innocent citizens in various areas and zones of the city (where situation warrants employment of Sindh Rangers). Pakistan Rangers (Sindh) are hereby authorized by the Government of Sindh to cordon, search and use force in controlling firing by the criminals in affected areas CCPO Karachi will extend all possible support to Pakistan Rangers (Sindh) in restoring law and order situation in any part of the city. ADDITIONAL CHIEF SECRETARY HOME DEPARTMENT" The contents of the report of the Chief Secretary, particularly Paras 7 & 8 thereof, 568 being an eye-opener, have already been reproduced hereinabove. 62. Similarly, IG Police in addition to other explanations, referred to the demography of the city and admitted extortion of money (bhatta) being collected from the traders. 63. Mr. Farogh Naseem, learned ASC appearing on behalf of MQM in C.M.A. No.565-K of 2011, pointed out that to prevent extortion of money (bhatta) the Provincial Assembly had already promulgated the Eradication and Curbing the Menace of Involuntary Donation or Forced Chanda Act, 2004 [hereinafter referred to as "the Act, 2004"]. However, it seems that this legal instrument has not been applied strictly whereas other learned 569 counsel. for interveners are of the opinion that criminals involved in collection of bhatta are so desperate that no one - be a trader or anyone else - being fearful is interested to expose himself to the wrath of the criminals, rather they feel safety in paying bhatta; besides they are equally hesitant to come forward because of problems and difficulties in perusing cases and also have no trust and faith in the police. As far as the law which has been referred to by the learned counsel, cognizance of an offence under the said Act is to be taken on submission of complaint in writing by a donor within 30 days of the commission of the offence before the Judicial Magistrate having territorial jurisdiction. The victims, instead of going by the letter of the law whereunder they have to become complainants and challenge the criminals, reportedly always armed with lethal 570 weapons, prefer to make payment of bhatta. This thing can only be reversed if the trust of the citizens is restored, which of course is not possible until and unless a neutral and a depoliticized administration as well as honest and dedicated law enforcing agencies, especially police are there to protect the victims of crimes. It seems that this law was promulgated for eradication and curbing the menace of extortion of money in the shape of forced donations (chanda). The word "chanda" has not been defined, but the definition clause of section 2 contains the word "Fund" which includes donation or contribution in the shape of money or kind. Thus, taking advantage of this provision, it was argued before us that there have been complaints that in the name of payment of fitrana, which is to be paid as sadqa by all the Muslims at the end of Ramadan on the eve of Eid-ul-fitr, 571 exorbitant amounts have been forcibly, recovered instead of allowing Muslims to pay the same voluntarily to the deserving people as per Injunctions of Islam. The culprits in an organized manner receive fitrana and in some of the cases ten times of the original amount has been demanded. Although no documents are available on record in this behalf, but these things have been pointed out during the arguments by the learned counsel appearing for the interveners who have spoken before the Court vocally. Similarly, it has been informed that as far as the word `kind' mentioned in the definition of "fund is concerned, it relates to recovery of hadia (donation), skins of animals (khall) and other body parts of animals on the occasion of Eid-ul-Azha, however, the representatives of so called welfare organizations working under the flags of their respective political 572 parties used to bind down the people to hand over the same to them, else to face the consequences, but according to the learned counsel for the interveners, this law has also not worked effectively and the practice of forcible recovery of the above items, i.e. skins, etc., has been going on. 64. It may be noted that as far as offence of extortion of money is concerned, which can also be considered as bhatta, it is covered by sections 386 to 388 of the Pakistan Penal Code and also falls within the definition of terrorism given in section 6(1)(k) of the Anti-terrorism Act, 1997. Undoubtedly, sufficient legal framework as discussed hereinabove is available on the statute book, but the same is lying dormant because of its non-application as people do not have trust in the law enforcing agencies to counter the 573 deadly and influential persons who happen to terrorize the innocent citizenry and due to this reason no one comes forward. It is common knowledge that mafias i.e. groups of criminals involved in the commission of heinous crimes, such as recovery of bhatta, extortion of money, business of illegal weapons; narcotics, drugs, land grabbing, etc., had been working in other countries as well in a highly organized manner. Reference in this behalf may be made to the Sicilian and American Cosa Nostra, an Italian group also working in New York, but in those countries the crime was controlled by promulgating and implementing stringent laws, which we also have in our jurisdiction, namely, Anti-Terrorism Act, 1997, therefore, we can also control the same by applying such laws strictly. In USA, to control such underworld mafias, the State authorized through the courts seizure of 574 properties of such like persons, if it was established that they had acquired such properties out of income .from the proceeds of heinous crimes. In this behalf, reference may be made to the case of Bracy v. Gramley, Warden, [520 U.S. 899 (1997)], wherein the Supreme Court of United States did not show any concession to the culprits. There are so many other judgments, reference of which may not be necessary at this stage, where the Governments had succeeded to control the mafias after applying stringent measures. 65. The history of Karachi, which has been narrated hereinabove, indicates that from 1985 onwards, the rate of crime as well as the situation of law and order have been increasing with the passage of time. Syed Iqbal Haider, Sr. ASC in C.M.A. No.544-K 575 of 2011, has pointed out that General Zia-ulHaq, with an intension to further divide and de-politicize the people, created three militant groups and fully armed ethnic parties, i.e. Muhajir Qaumi Movement (Now Mutahida Qaumi Movement), Punjabi Pukhtoon Itehad (PPI) and Jiye Sindh (JS), and ethnic warfare started from the tragic road accident death of a student named Bushra Zaidi in April, 1985, followed by numerous incidents of bloody clashes between the three ethnic parties resulting in innumerable deaths of innocent citizens, destruction of public and private property and injuries to thousands of persons, particularly in Karachi and Hyderabad. Curfews, hartaals (strikes) and close downs of routine activities of the citizens became a norm in Karachi. He further stated that from 1980 onwards, six Judicial Commissions headed by Judges of High Court of Sindh 576 were constituted, but reports of none of those Commissions were made public nor their recommendations were ever implemented, perhaps to protect the real culprits responsible for such bloody incidents. Inasmuch as, former Prime Minister Mohtarma Benazir Bhutto had constituted a most powerful independent Judicial Commission headed by the. then Chief Justice of Pakistan, Mr. Justice Muhammad Afzal Zullah and comprising the Chief Justices of all the four High Courts to investigate into the unfortunate incident of Pakka Qila, Hyderabad on or about 17-51990, but according to 'him, after unconstitutional dissolution of the Government of Mohtarma Benazir Bhutto, during the days of new Caretaker Government with heavy representation of MQM both at Federal and Provincial levels, it decided to dissolve the said Judicial 577 Commission. He handed over the implementation report of one of such Commissions headed by the Chief Secretary, Sindh constituted in 1985-86 after the incident of Bushra Zaidi. We inquired from the learned Advocate General as to whether any other Commission's report was available and whether the same had been made public or not, he stated that as per instructions, no Commission report is available in the relevant department. From the facts and circumstances narrated by the learned counsel, it seems that in the past as well, the city of Karachi had been facing the same problem with which it is confronted today in more aggravated form, but unfortunately, no plausible solution to maintain law and order and restore peace in Karachi was adopted. Inasmuch as, sometimes, there had been military operations followed by operations by the Task Forces constituted by Mohtarma 578 Benazir Bhutto during her regime commencing from 1993 onwards, but without any final permanent solution of the problem. We tried our level best to trace out the reasons as to why democratic as well as non-democratic Governments failed to bring normalcy in Karachi, but nobody came forward with a convincing answer except that identical international solutions, which other Governments like in Italy, America, India, etc., had adopted are available to the State machinery in Pakistan, but no one had dared or shown any will to resolve the issue of disturbances in Karachi. Although, Karachi is a city presently accommodating about 18 million people belonging to different communities, as per the history of Karachi who had come from India, Afghanistan and all over Pakistan and had settled permanently over there making it a cosmopolitan city, which houses Pakistanis 579 as well as a large number of foreigners, about 2.5 million in number, who are also there without any check and their involvement in troublemaking can also not be overruled. But the question remains as to why law enforcing agencies have not, to say the least, checked these illegal immigrants and have not managed to deport them to the countries of their origin. The DG Rangers, who operates in the disturbed areas, appeared in person and pointed out in his briefing to the Court that the political forces of the city had been made hostage by the militant groups of political parties; Karachi was a mega city, but unfortunately an unjust infrastructure divided it into various parts on ethnic and political lines; the city was in the grip of polarization on account of which even the health sector was divided on ethnic/parochial basis, so much so that a patient or an injured person belonging to one 580 community is refused admission for medical treatment in a hospital under the control of the rival group; and the situation in Karachi was worse than that prevailing in North Waziristan. The statement of DG Rangers has undoubtedly made important evaluation during his briefing, besides, in the reports available on record and from other credible sources, the situation in Karachi seems to be terrible and needs urgent attention of the Federal and the Provincial Government to handle the same through independent Administration to save the economic, social and political future of Pakistan, which, inter alia, depends upon peaceful life in Karachi. 66. Mr. Rasool Baksh Palijo, ASC appearing on behalf of Awami Tehrik Party in C.M.A. No.552-K of 2011, in loud and clear words, held MQM responsible alone, for the 581 situation prevailing in the country. He stated that over the last about 20 to 30 years thousands of criminals were not challaned and not a single person was awarded punishment. According to him, unless a ban is imposed upon the militant outfits of the political parties, peace and normalcy would not be brought to Karachi. Therefore, he emphasized that culprits should be brought to book and severe punishments should be awarded to them, which may serve deterrence for like minded persons. In this context, Syed Iqbal Haider, Sr. ASC agreeing with him suggested that a powerful truth finding commission is required to be constituted to decide, once for all, as to who is responsible for destroying peace in Karachi, whereas, Syed Iftikhar Hussain Gillani Sr. ASC was of the opinion that instant matter may not be disposed of finally, and an affective interim order may 582 be passed, as this Court had done in the Petitions' challenging the validity of the 18th Constitutional Amendment, enabling this Court to supervise the affairs relating to law and order situation in Karachi. 67. Mr. Abdul Mujeeb Pirzada, Sr. ASC appearing on behalf of Sindh Bachayo Committee in C.M.A. No.531-K of 2011, after having narrated the facts and circumstances of the case also insisted for directions to the Government of Sindh to initiate the process of deweaponization and for the assistance of Administration the military be also allowed to be called in terms of Article 245 of the Constitution because in the past as well, the Administration has been calling in aid the Armed Forces in critical situations like during the earthquake of 2005 and floods in different parts of the country in 583 2010, and also get implemented the orders passed by this Court by invoking Article 190, which according to Syed Iftikhar Hussain Gillani, Sr. ASC is an enabling provision on the basis of which the Court can issue directions to all executive authorities to come forward to provide aid to it in implementation of its orders, and undue objections are being raised to invoking of the provisions of Article 190. According to them, Article 190 is like all other provisions of the Constitution, e.g., Article 187, etc., therefore, adhering to any provision of the Constitution will be tantamount to strengthening the institutions for the purpose of achieving good governance, welfare, peace and tranquility in the society. They have emphasized that no provision of the Constitution can be made ineffective, rather each provision has to be applied when the need arises. It is to be noted that as per the 584 scheme of the Constitution, different institutions are required to fulfil their commitment because our Constitution is based on the principle of trichotomy of powers he. Legislature, which is responsible to legislate the laws, Executive/Government headed by the Prime Minister in the Federation and the Chief Ministers in the Provinces to fulfil their duties, and the Judiciary, which has to interpret the Constitution and the law. Violation of constitutional provisions by any of the organs/functionaries of the State is .not permitted by law as held in the case of Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 876) wherein all the actions of the then Chief of Army Staff General Parvez Musharraf dated 3-11-2007, viz., Proclamation of Emergency, PCO No. 1 of 2007, Judges 'Oath Order, 2007, etc. were declared to be unconstitutional, illegal, 585 mala fide and void ab initio. As a result, whatever was done extra-constitutionally was struck down. As far as the present democratic Government is concerned, it too cannot be allowed to go beyond the Constitutional provisions or allowed to fail in its implementation, particularly with regard to enforcement of Fundamental Rights. There are no two opinions that as far as Fundamental Rights/civil rights of the citizens are concerned, those are to be enforced by the Executive and if it fails to do so, they have to face the consequences envisaged by the Constitution. The Executive functionaries who have also taken oaths both in the Province and Federation to protect and preserve the Constitution cannot be allowed to defeat any provision of the Constitution, whatever the circumstances may be. At this juncture, reference to Article 5 of the Constitution is relevant and 586 appropriate, which commands that loyalty to State is the basic duty of every citizen and obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be, and of every other person for the time being within Pakistan. Thus, the Executive/public functionaries are bound to enforce the Constitution while protecting the Fundamental Rights of the citizens without any fear or favour or compromise for subjective purpose. Reference in this behalf may be made to the cases of Abdul Majeed Zafar v. Governor of Punjab (2007 SCMR 330) and Ch. Zahur Ilahi v. Zulfiqar Ali Bhutto (PLD 1975 SC 383). In the last mentioned judgment, the question before the Court was with regard to initiating proceedings of contempt of Court against the then Prime Minister, Zulfiqar Ali Bhutto, vis-a-vis the position of such office holder as well as the immunity under Article 587 248 of the Constitution, when this Court held that even a Prime Minister is, under clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic obligation of every citizen.. Whereas, in the' instant proceedings without claiming any immunity whatsoever, the Prime Minister as well as the Chief Minister both are bound to follow the Constitution under Article 5(2) by ensuring security and safety of persons and property of the citizens. An argument could be raised that since the responsibility for incidents of violence, commission of crimes, bloodshed and looting occurring in the society lies on criminals, who arE to be held responsible and punished by the Courts of law, as such, in the instant case as well, the, law enforcing agencies are performing their duties causing arrests of the accused persons to be put on trial in accordance with law. In 588 our considered opinion, a line of distinction has to be drawn in the cases where there is insurgency in any part of the country and commission of crimes by the individuals for their personal enmities and other motives, and commission of crimes in the shape of a turf war by various groups allegedly having support of political parties to secure their vested interests, vis-a-vis unlawful gains. Such groups represent the organizations/gangs of criminals, drug mafias, land grabbers, etc., who operate against each other to have control over different areas of the city, considering themselves as warlords and obstruct entry of rival groups in each other's area. 68. At this stage, reference to the application of Mr. Javed Ahmed Chhatari Advocate, appearing in person in C.M.A. No.558-K of 589 2011 may be made with which he has appended a coloured copy of the map to highlight the respective areas under the control of Pashtuns and Urdu speaking communities, divided by a hill. Allegedly, the Pashtuns are inhabitants on the upper side of the hill whereas the Urdu speaking people and other communities are living across and in the bottom of the same, 'and whenever a dispute arises, according to Mr. Chhattari, the Pashtuns take benefit of their location on the high side of the hill and manage to kill Muhajirs (Urdu speaking). He has also submitted a list of police stations, 112 in number, along with details of different communities living in their respective jurisdictions. For convenience, the same is reproduced herein below:-- S. Name of Nature of Population 590 No. Police Station 1. 1. Peerabad 2. Pukhtoon Majority Manghopir 3. Police Stations Mochko 4. Mominabad 5. Site Section A 6. Site Section B 7. Baldia Town 8. Saeedabad 9. Sohrab Goth 10. Gulzar-eHijri 11. Qaidabad 12. Sohrab Goth 13. Bilal Colony 6. 1. Mattajir Majority Police Bahadurabad Stations 2. Nazimabad 3. Rizvia 4. 591 Gulbahar 5. Super Market 6. Liaquatabad 7. Sharifabad 8. Gulberg 9. Yousuf Plaza 10. Azizabad 11. Joharabad 12. Samanabad 13. New Karachi 14. Sir Syed Town 15. Preedy 16. Orangi Town 17. Pakistan Bazar 18. Landi 19. Korangi 20. Zaman Town 21. Saudabad 592 22. Orangi Ext. 23. Shah Faisal 3. 1. Chakiwara Baloch and Sindhi 2. Bagdadi 3. Majority Police Stations Kala Kot 4. Eid Gah 5. TPX 6. Gaddap Town 7. Ibrahim Haidry 8. Malir City ' 9. Memon Goth 10. Bin Qasim 11. Docks 12. Kalri 13. Malir Cantt. 14. Nepare 15. Sharafi Goth 4. 1. Mari Pur 2. Mix Community Jackson 3. Populated Area Police 593 Surjani Town Stations 4. Gulshan-eIgbal 5. Gulistan-eJohar 6. Share-Faisal 7. Shar-eNoorjehan 8. Sher Shah 9. Sharfi Goth 10. Mehmoodabad 11. Baloch Colony 12. Ferozabad 13. Defence 14. Clifton 15. Gizri 16. Boat Basin 17. Artillery Maidan 18. 594 Sadar 19. Air Port 20. Civil Line 21. Darakshan 22. Frere 23. Gulzar-e-Hijri 24. Garden 25. Jamshed Quarter 26. Kharadar 27. Methdar 28. Korangi I. Area 29. Khokra Par 30. Khawaja A Nagri 31. Model Colony 32. Nabi Bux 33. New Town 34. New Karachi I Area 595 35. Risala 36. Soldier Bazar 37. Sukhan 38. Steel Town 39. Sachal 40. Tepu Sultan 41. Gulshan-eMaymar Thus, according to Mr. Chhattari, the dispute is not confined to individuals, but mostly extends to three communities i.e. Muhajirs, who normally speak Urdu, Pashtuns and Balochs, all of whom try to achieve their nefarious objects by committing murders by way of vengeance and as a matter of tit for tat. The Pakistan People's Party Parliamentarians (PPPP) being the majority party in the Provincial Assembly of Sindh is the leading 596 parliamentary party, whereas the MQM is the next majority party in the said Assembly. According to the learned counsel appearing on behalf of MQM, out of total 42 seats of MQM in the Provincial Assembly of Sindh, it has 34 seats from Karachi., and ANP has only 2 seats, whereas PPPP alone has 93 seats, which even otherwise is sufficient to form government in the Province. However, according to him, for the reasons best known to the political groups or their leaders, a coalition government has been formed. 69. Dr. Farogh Naseem, ASC has filed an application on behalf of MQM, contents whereof are reproduced hereinbelow:-"14. The applicant supports an action against all the criminal elements across 597 the board without any fear, favour or affiliation. The applicant shuns any form of terrorism and intolerance and requests this Hon'ble Court to pass corrective orders and some suggestions in this regard are stated below in the prayer clause, while some will be furnished at the time arguments. 17. The land, arms and drug mafia predominantly thrive upon unrest in the city. The failure of law enforcement agencies is a safe haven for such mafias, which encroach upon State land and their whereabouts are not traceable, and, therefore, it is imperative that proper survey and investigation is carried out so as to discover the areas and pockets of State land which are encroached and the law enforcement agencies are employed 598 to evict them from such State land, whereafter the perpetrators are prosecuted." When we inquired from him as to why precautionary measures were not taken by the party being represented by him to control the law and order situation, he invited our attention towards Para No.7 of his CMA. It is important to note that one of the most important statements of fact has been made on behalf of MQM in Para No.14 above, and at the same time he has orally stated that in view of the circumstances prevailing in Karachi, he concedes that the Government has failed to enforce Fundamental Rights of the citizens. In respect of presence of land and drug mafia, an explicit offer has' been made in Para No. 17 reproduced above. As far as jurisdiction 599 of this Court under Article 184(3) ,is concerned, he has conceded that because the instant proceedings are inquisitorial, therefore, in view of the judgments in the cases of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416), Darshan Masih v. the State (PLD 1990 SC 513), S.P. Gupta v. President of India (AIR 1982 SC 149) and People's Union for Democratic Rights (AIR 1982 SC 1473), this Court, in the interest of public, has jurisdiction to adjudicate upon such a matter. He further argued that unless de-politicization of the law enforcing' agencies takes place and neutral investigation bodies are constituted for the purpose of conducting transparent proceedings following the due process of law as contemplated under Article 10A of the Constitution and to supervise such independent bodies, unless a Judge of the High Court is appointed to monitor the 600 proceedings of each case, it would neither be possible to bring the culprits to book involved in the commission of crimes nor justice would be done. In this very context, he has also relied upon Vineet Narain v. Union of India [(1996) 2 SCC 199], State of Bihar v. Ranchi Zila Samta Party [(1996) 3 SCC 682], Anukul Chandra Pradhan v. Union of India [(1996) 6 SCC 354], Union of India v. Sushil Kumar Modi [(1996) 6 SCC 500], Union of India v. Sushil Kumar Modi [(1997) 4 SCC 770], Dinesh Trivedi, M.P. v. Union °India [(1997) 4 SCC 306], and Khan Asfand Yar Wali v. Federation of Pakistan (PLD 2001 SC 607). Learned counsel, instead of defending the situation prevailing in the city, has made two very important admissions on behalf of MQM, which are evident from the contents of the application reproduced hereinabove. 601 70. The third most important admission from the coalition partner of the Government is that it has failed to enforce the Fundamental Rights of the citizens and suggested that it be held that under no political expediency or consideration, the Provincial or Federal Government should allow bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., to continue in violation of Articles 9, 14, 15, 18 and 24 of the Constitution or to encourage the land grabbers, drug mafias and gangs of organized criminals who are brutally committing murders by cutting necks and limbs of innocent people and throwing their torsos in the streets. Even if there is any expediency, it cannot be allowed to prevail at any cost, whatsoever the consideration may be, is the most important 602 admission. Besides, it has been pointed out that except learned counsel appearing for the Government i.e. M/s Abdul Hafeez Pirzada and Babar Awan, learned Sr. ASCs, all the learned counsel for the applicants/interveners, loudly and clearly, with logical reason based on facts, have conceded that the Government has failed to combat and eradicate crimes and to protect Fundamental Rights of the citizens. The nature of the crimes and the horrible acts being shown on DVDs of a torture cell detected by the Rangers in the area of Lyari, as per statement of IGP are hair-raising wherein the criminals are shown cutting throats of persons with blunt knives and committing sodomy. Obviously, this all shows that the Executive/Provincial Government has not dealt with the criminals with an iron hand. Had the Government done so, innocent persons would not have 603 been deprived of their lives, liberties and properties and their dignity would have been saved. It has been mentioned time and again that allowing such incidents without any resistance for the last so many years, and more particularly in the recent months of July and August, 2011, relevant details whereof have been obtained, is beyond comprehension. We may observe here that it is not the question who succeeds in forming the government both in the Centre and the Province, but here the question is of defending the Fundamental Rights of the citizens. The Executive Authorities cannot be allowed to be negligent to an extent where ultimately the sovereignty and integrity of the country is jeopardized. Availability of heavy and light arms and ammunition, such as pistols, revolvers, rocket launchers, MG, LMGs, etc., in fact, has turned Karachi into a volcano, which 604 can erupt at any moment, and then it would not be possible for the Executive to control the same. There are voices from different quarters, including the learned counsel appearing for the interveners that the Government should have initiated action for de-weaponization. In this behalf, Mr. Farogh Naseem, ASC has stated that a private Bill, namely, the Deweaponization of Pakistan Bill, 2011 has been moved by the MQM in the National Assembly, which is still pending with the Assembly. 71. Dr. Babar Awan, learned counsel for the Federation and learned Advocate General, Sindh were called upon to explain as to how many licenses of prohibited and nonprohibited weapons have been issued by the Federal and the Provincial Government of Sindh during the last five years. Both of 605 them filed the reports indicating that 180956 licences of non-prohibited bore were issued by the Home Department, Government of Sindh whereas 46114 licenses of prohibited bore and 1,202,470 licenses of nonprohibited bore were issued by the Ministry of Interior, Government of Pakistan. It is to be noted that usually crimes are not committed with licenced weapons as the criminal perpetrators use unlicenced weapons for the same. 72. As it has been pointed out hereinabove that in the past in an identical situation, the constitutionally elected President of Pakistan had dismissed the Governments and such orders were maintained up to the Supreme Court, reference of which has already been made hereinabove. It is important to mention at this stage that whosoever is 606 ruling the country under the Constitution, he being the Leader of the House, is bound to know the constitutional commitments and provisions of law c because of the fact that he or they have taken oath(s) to preserve, protect c and defend the Constitution, including Fundamental Rights as well as to show obedience to the Constitution and law under Article 5(2) notwithstanding their holding of any high office, as held in Zuhor Ilahi's case (ibid). 73. We may reiterate here that now it is not possible under the Constitution and law for the Armed Forces to dismiss the Government by adopting extraconstitutional measures, detailed reference in this behalf, if required, can be made to the only judgment of this Court in Sindh High Court Bar Association's case (ibid), but at 607 the same time the chosen representatives also owe a duty to the Constitution and if they feel that on account of any political expediency they can allow the continuance of the present position of law and order in the Province, it will be at their own risk and cost, otherwise under the Constitution they are bound to secure lives and properties, ensuring the proprietary rights, freedom of movement, etc., and failing which constitutionally such government is likely to lose their right of ruling. 74. Ms. Asma Jehangir Advocate, in her statement, on the basis of report of Special Branch of Sindh Police, 'wherein names of persons belonging to different political parties including PPPP, MQM, etc. involved in the collection of bhatta have been mentioned showed her concern and stated 608 that it is an eye opener for the Government and despite such information, no action has been taken by the police. We have no reason to differ with her, and we are constrained to hold for this reason as well that unwillingness of the police force to combat crime could be one of the reasons on account of which criminals are let loose in the society and encouraged to commit crimes. 75. According to the assertion of Ms. Asma Jehangir Advocate, the law enforcing agencies have shown slackness in initiating action for extending powers to the Rangers and others, which, according to her, is evident from the parawise comments filed by the Chief Secretary. We have already discussed this aspect of the matter; however, we would share the concerns expressed by 609 her. Actually, as it has been pointed out hereinabove, the situation could have been controlled conveniently, if the police had taken prompt action with full commitment, but in view of the` statement of IGP that 30 to 40 percent police officials are not cooperating for the reasons already noted hereinabove, and no expectation could be made from then:, unless the whole police is de-politicized by transferring the police officers of the rank of DSP and above to their parent departments, and by discontinuing the practice of allowing retired officers to join police on contract basis or bringing persons from other departments in the police department is discarded. In fact, by way of passing remarks, it may be observed that apart from the police department, the situation perhaps is worse in other departments as well, because appointments on the basis of 610 unauthorized absorptions of different officers in the provincial and district Administration were made by the Government and a Division Bench of Sindh High Court in Constitution Petition No.932D of 2009 set aside such appointments by way of cancelling the orders of such 'appointments. The persons who were aggrieved by the decision of the High Court preferred petitions for leave to appeal, which were converted into Civil Appeals 404-406. of 2011 etc. But, in the meanwhile, Sindh Assembly passed the Sindh Civil Servants (Regularization of Absorption) Act, 2011 whereby the transfers/absorptions on permanent basis of such officers against regular posts were declared regular notwithstanding any judgment of any Court, as a result whereof the appeals so filed were withdrawn and stood disposed of vide order dated 16-6-2011. 611 76. Mr. Muhammad Aqil, President of Karachi Bar Association, Mr. Iftikhar Javed Qazi, Vice Chairman, Sindh Bar Council and Syed Haider Imam Rizvi, General Secretary, Karachi Bar Association appeared in C.M.A. No.532-K of 2011 . a n d stated that about 19 Advocates have also been brutally murdered by criminals and so far no action has been taken by the law enforcing agencies. Their arguments were augmented by Mr. Faisal Kamal, learned ASC who has filed an application on behalf of the PML(N), and according to him, two Advocates who were supporters of PML(N) were also murdered. It is to be noted that as per information supplied, following Advocates so far have been killed in different incidents, during the last few years:612 1. Mr. Sardar Zulfiqar 2. Mr. Muhammad Hanif Khan 3. Mr. Altaf Hussain 4. Mr. Liaqat Qureshi 5. Mr. Nazar Abbas 6. Mr. Muhammad Kamal 7. Mr. S. M. Zia Alam 613 8. Syed Mukhtar Abbas Bukhari 9. Mr. Muhammad Junaid 10. Mr. Fahim Riaz Siddiqui 11. Mr. Muhammad Saleem Bhatti 12. Mr. Muhammad Murtaza Chinnoy 13. Mr. Nazeer Ahmed Khuhawar 14. Mr. Ali Muhammad Dahiri 15. Mr. Muhammad Aslam Burioro 614 77. It is pertinent to mention here that in some of the cases, F.I.Rs. have been registered, but the accused persons have remained untraced. We agree with the learned counsel that if the lives of Advocates are not safe at the hands of the culprits, a set back is likely to be caused to the profession of law, which is an important tool in the system of administration of justice. However, the learned Advocate General assured that the matter will be looked into and all efforts will be made to bring the culprits to justice. He has also stated that the Government of Sindh has agreed to pay compensation of Rs.5,00,000/and one plot to the families/legal heirs of the deceased Advocates. As far as the payment of compensation is concerned, according to him, the claims have already been approved by the Government of Sindh whereas the 615 process of allotment of plots is in progress. The learned representatives of the Advocates, however, requested for enhancement of compensation as according to them; such lawyers have also been killed in the course of performance of their professional duties and according to the Government Policy, a sum of Rs.20,00,000/is paid to the families of the police officers/officials who have sacrificed their lives while combating crimes. We do agree with the learned counsel for enhancement of compensation in view of the two judgments, which have been cited by Mr. Farogh Naseem, ASC. This Court, in exercise of its jurisdiction under Article 184(3) of the Constitution, has also ordered payment of compensation in the case of Saad Mazhar v. Capital Development Authority (2005 SCMR 1973) to the residents of Margalla Towers, which collapsed in the earthquake 616 of September, 2005. However, in the instant case, this Court perhaps would not be in a position to issue any direction except observing that the cases of the Advocates, belonging to legal fraternity and being one of the important components of the system of administration of justice, if they lay their lives on account of prevailing law and order situation in the city, without any fault on their part and also not on account of any personal enmity, deserve to be dealt with at par with the police officials who have sacrificed their lives in combating crime. The Government of Sindh may consider change in the Policy for the payment of compensation and grant of a plot of land to their families. 78. It may be pointed out that immediately after the commencement of hearing of the 617 case, one Barrister Murtaza Chinnoy, Advocate was assassinated in his office. The office bearers of the Sindh High Court Bar Association and Karachi Bar Association pointed out this fact to the Bench, therefore, the IGP Sindh was directed to take personal interest in the matter, and later it was informed that accused persons have been arrested and prima facie their involvement in the murder case is on account of dacoity, as allegedly he was robbed and looted. Similarly, another Advocate, namely, Faheem-ul-Karim along with a lady and another person was killed in a flat and police was directed to expedite the investigation. Mr. Tariq Dharejo, SP Clifton submitted a report to the effect that 'accused persons are likely to be booked soon in this case as well. Mr. Faisal Kamal Alam, ASC who appeared on behalf of PML(N) also expressed his grievance in respect of killing of workers of 618 the political party being represented by him, including two Advocates and argued that the Government had failed to enforce the Fundamental Rights of the citizens under Article 9 of the Constitution, which has been elaborately interpreted by this Court in the cases of Shehla Zia and Benazir Bhutto (ibid). His grievance is that although the F.I.Rs. have been registered, but so far accused persons have not been arrested. As far as the enjoyment of the protection of life and property enshrined in Article 9 of the Constitution is concerned, there is no cavil with the proposition as this issue has been discussed elaborately hereinabove with reference to the case of Shehla Zia, but so far as judgment in the case of Benazir Bhutto, handed down by a 7-Member Bench of this Court, a Bench larger than the present Bench hearing the Instant case, wherein dismissal of Government of Mohtarama 619 Benazir Bhutto and dissolution of Assemblies was challenged is concerned, it is to be noted that the president of Pakistan, in exercise of powers under Article 58(2)(b) of the Constitution, dissolved her Government and in his speech .to the Parliament on 29-10-1995 warned that law enforcing agencies must ensure that there would be no harassment of innocent people in the fight against terrorism and human and legal rights of persons are to be duly protected. This advice was not heeded to and killings continued unabated. The Government's fundamental duty to maintain law and order situation has to be performed by proceeding in accordance with law. In consequence of this judgment, the Dissolution Order was maintained by a 7Member Bench of this Court. If similar circumstances prevail today, we would be bound by that ruling. We may observe here 620 at the cost of repetition that under Article 148(3) of the Constitution, the Federal Government is bound to assist the Provincial Government during the period of disturbances. 79. Ms. Asma Jehangir, President, Supreme Court Bar Association argued that in view of the acute law and order situation prevailing in Karachi, a change in the mindset for improving the investigation and introducing the witness protection system is called for. Her voice has been appreciated by the other representatives of the Bar Associations, including Mr. Ashraf Samoa, President Malir Bar Association who appeared in C.M.A. No.560-K of 2011 and pointed out that the Government functionaries did not perform their duties due to fear of death at the hands of the criminals, inasmuch as, 621 such incidents had already occurred and about 92 police officials who participated in the Operation Clean up of 1992 had been murdered through target killing. Therefore, under the circumstances, now the investigating officers are not ready to conduct investigation independently nor the witnesses dare to come forward because they do not get protection as already stated by the President of the Supreme Court Bar Association. In absence of any evidence, it is not possible to accept the statement that 92 police officers, who participated in the 1992 Operation Clean up have been murdered. It can only be considered a factor, but at the same time we, during hearing of the cases, looking to the trend of investigation of cases as well as the morale of the police, have no reason except to agree with the learned President of the Supreme Court Bar Association and other 622 representatives of the lawyers coupled with the statement of IGP Sindh that about 30 to 40 percent police officers/officials are noncooperative. 80. In all the civilized countries where hardened criminals are brought before the Court, full protection is provided to the witnesses so that they may not feel frightened while deposing the truth, but unfortunately, no such programme is available throughout the country despite the commission of offences, which seem to have taken place and the criminals have gone scot free because nobody dares to depose against them and ultimately the blame is shifted to the Courts for acquitting them. In the present incidents, we have noted with concern that most of the F.I.Rs. have been registered against unknown persons and the police 623 officers in the garb of section 173, Cr.P.C. wherein they are required to submit the challan within 14 days, instead of filing interim challan, make request to the court to enlarge the period of investigation and after seeking permission feel satisfied in getting the F.I.R. cancelled after declaring it as an "A" class case. As it has been noted hereinabove, comparative table of the F.I.Rs. registered during one month's period indicates that most of the cases have already been declared as "A" class. So far remaining cases are concerned, no effective progress seems to have been made, may be on account of non-commitment of the investigating officers, or for the reasons that no witness is ready to come forward. The situation in the city has gone from bad to worse to the extent that on our direction 18 persons, who were abducted, were recovered by the police. Prima facie, such abductees 624 were not recovered prior to the direction of this Court because no police official was in a position to afford enmity with the criminals. The statements of two of such persons are reproduced hereinabove. 81. Thus, in view of such state of affairs, how could one believe that, in presence of the overwhelming material, which has been brought before this Court in daily situation reports, reports of Special Branch, IB and other sources as well as material discussed hereinabove, the criminals will be punished for the crimes, which they have committed. Therefore, under the circumstances, change in the investigation and improvement in the prosecution system is sine qua non, and that too, through de-politicized, honest and competent officers. In absence thereof the accused persons shall be encouraged if they 625 are arrested but not sentenced knowing fully well that they though have brutally killed so many persons in violation of the Fundamental Rights of the victims, nothing would come of this barbarity. 82. Learned office' bearers of -both the Bar Associations noted above also pointed out that six Special Courts under the Anti Terrorism Act 1997 were lying vacant for the last several months despite the fact that the Chief Justice of High Court of Sindh was continuously pressing hard for the appointment of Presiding Officers in these Courts. Inasmuch as, Mr. Justice Javed Iqbal, former Judge of this Court, who was nominated as Judge to monitor the cases of Anti-Terrorism Courts for Karachi, in view of the observations made in the case of Liaqat Hussain (supra), had taken up the 626 matter with the concerned authorities to ensure early appointment of the Presiding Officers, but no progress was made. This judgment, however, also contains directions which were incorporated in the judicial order to ensure expeditious disposal of cases, but it seems that the concerned authorities were not aware of the same. When we asked the learned Advocate General, Mr. Abdul Fattah Malik to explain the position of the Government, he candidly conceded that delay has been caused in not making the appointment, but as there is no difference between the Chief Minister and Chief Justice of the High Court on the appointment of Judges already recommended, therefore, notification would be issued within two days. Consequently, on 7-9-2011, all the six Judges were appointed vide notification issued by the Government of Sindh. It is to be noted that the Competent 627 Authority of the Province had to make the appointments on the basis of recommendations u/s 14 of the AntiTerrorism Act, 1997. Admittedly, in the instant case recommendations were lying with the Competent Authority since long, but it failed to make the appointments and reasons of the same have not been disclosed by -the learned Advocate General except stating that some delay has occurred. In the case of Liaqat Hussain (supra), this Court had taken upon itself the exercise of monitoring the functioning of AntiTerrorism Courts through a nominee of the Chief Justice, therefore, vacancies of such Presiding Officers cannot be left un-filled for an indefinite period of time and the appointments have to be made as early as possible instead of causing the delay for one or the other reason. However, as now appointments have taken place and 628 reportedly these officers have joined duty, we are confident that in future such appointments, subject to availability of the vacancies, will be made promptly. 83. Mr. Ghulam Qadir Jatoi, ASC appeared in C.M.A. No.533-K of 2011 and highlighted his grievance that one deceased Junaid Zaidi kidnapped in the -month of April, 2011 by the terrorists/killers was severely tortured and was killed and his dead body was thrown on Katchra Kundi. Case has been registered-u/s 302/34; P.P.C. vide F.I.R. No.57 of 2011 in Malir Cantt. Police Station. Similarly, one Ayub Ali was killed/murdered in the month of July, 2011 by the terrorists after entering into his house when he was giving Dars-e-Quran, as such F.I.R. No.194 of 2011 was lodged at Brigade Police Station u/s 302/34, PPC. 629 This application was followed by another application wherein documents were filed to establish allegations against the sovereignty of Pakistan attributing to Altaf Hussain, leader of MQM along with two CDs. Yet another application has been filed for summoning Dr. Zulfiqar Mirza, former Home Minister, Government of Sindh, who according to him, had deposed on Holy Quran against MQM. We have pointed out to the learned counsel that he should have filed affidavit of Dr. Zulfiqar Mirza and also brought to his notice that instant proceedings are not adversarial but inquisitorial, which have been initiated in the public interest. However, the issue being raised by him is of important nature and if he, too considers it so, he can adopt the proper course for the redressal of his grievance in accordance with law. We have also pointed out that by the time it is established that Dr. Zulfiqar 630 Mirza's statement in the newspapers has not been controverted by anyone, therefore, the same will be presumed to have been accepted as it is held in the case of Dr. Mobashir Hussan v. Federation of Pakistan (PLD 2010 SC 265). He also emphasized that murder of a man in view of the Islamic injunctions is tantamount to murder of the entire humanity, therefore, murders of all those persons, who have been killed in Karachi without any reasons being Masoomud-Dum clearly indicate failure of the Provincial Government. As far as Islamic injunctions with regard to killing of an innocent person is concerned, there could not be any two opinions. This injunction of Islam has been elaborately discussed in the case of Federation of Pakistan v. Gul Hassan Khan (PLD 1989 SC 633). However, a criminal case in adversarial proceedings is likely to be decided on merits 631 after recording of evidence. 84. Mr. Ghulam Qadir Jatoi, learned ASC referred to the case of Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) and contended that the Judges of the Superior Courts who have taken oath to protect the Constitution are bound to enforce Fundamental Rights conferred by the Constitution and ensure that the provisions of the Constitution are fully alive and operative. It is to be noted that in the aforesaid reported judgment the Proclamation of Emergency dated 28-51998, promulgated under Article 233(1) of the Constitution, was questioned and the Court concluded that it was sufficient to hold that prima facie there was some material on the basis of which the President could issue the impugned Proclamation of 632 Emergency on account of imminent danger of external aggression. However, the same did not warrant passing of an order under clause (2) of Article 233 of the Constitution suspending the enforcement of the Fundamental Rights. To strengthen this argument one of the reasons assigned in the later part of the judgment was that in spite of suspension of enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remained fully operative, which laid down that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan and in particular no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. Therefore, according to the learned 633 counsel, Fundamental Rights of the citizens of Karachi have to be enforced by the Court in the discharge of judicial functions. We have no cavil with the proposition and fully endorse the arguments of the learned counsel. He has also relied upon the case of Syed Jalal Mehmood Shah v. Federation of Pakistan (PLD 1999 SC 395). In this case, the order dated 30-10-1998 issued by the Federal Government under paragraph (c) of clause (2) of Article 232 of the Constitution, pursuant to the declaration of Proclamation of Emergency dated 28.05.1998 under Article 232 of the Constitution was challenged. The order referred hereinbefore was followed by another order dated 10-111998, issued by the Federal Government, in pursuance whereof the operation of Article 54 read with Article 127 relating to summoning and prorogation of the Provincial Assembly was suspended; 634 however, no question with regard to the enforcement of Fundamental Rights was involved, therefore, the cited judgment in view of the facts and circumstances of the present case is not applicable. He further contended that Jamat-e-Islami had issued a White Paper according to which sufferings of the citizens of Karachi were on account of commission of heinous crimes in the city since 1985, which were being committed by one party (MQM) and it was admitted and declared by the Government, that serious lawful action was, therefore, taken against them by the Government. 85. Similarly, Awami Tehrik Party, through its President Mr.Rasool Bux Palijo, during the arguments stated that MQM was responsible for target killing, attacks on the police, etc., and that MQM was a challenge 635 to the country, therefore, a ban be imposed on this party as innocent people were suffering at their hands and people were so overawed that due to fear created by them, no body was ready to go before the police. He maintained that the people of Karachi are absolutely insecure, as such, ways and means be found out to give relief to them otherwise there was every likelihood that in the ultimate result there could be uncontrollable anarchy as the people in the town finding themselves without protection to their dignity, life, liberty and property might, as a last resort, take the law in their hands. 86. Mr. Irfan Ullah Marwat, petitioner, who appeared in person being the President of Pashtun Punjabi Ittehad too, raised similar voice against MQM. 636 87. From the material so brought on record, namely, reports of the JIT filed by Syed Iftikhar Hussain Gillani, learned ASC, report submitted by the Provincial Government prepared by its Special Branch, report of the IB and information collected from other credible sources during in camera briefing by ISI does highlight the role of the stakeholders and political parties, namely, ANP, PPP, MQM, Sunni Tehrik, Jamat-eIslami, etc. that in the ranks of these political parties, criminals have succeeded in making their way, some of whom are now involved in target killing, land grabbing, drug mafia, recovery of bhutta as well as forcible recovery of skins of animals during Eid-ulAzha and due to their vested interests, there is a turf war. In this context the following statement of Mr. Rehman Malik Federal Interior Minister published in Daily Dawn 637 dated 13-9-2011 is quite pertinent:-"Interior Minister Rehman Malik said on Tuesday that 'criminals' arrested in Karachi during the current operation belonged to all political parties. The government has evidences (audio and video tapes) against them which will be made public if permitted by the Supreme Court. "I will consult with the federation's lawyer, Babar Awan, about getting permission from the Supreme Court to make the names of criminals public," he told reporters at the National Press Club. 638 Although, he said, the people arrested in Karachi belonged to all political parties, he was of the view that they had not been recruited by the parties, but they somehow managed to get refuge in them after committing crimes. He said that police and Rangers had arrested 48 target killers, 90 criminals and 28, extortionists and seized 308 weapons. The operation, he said, was being carried out without any discrimination, with the sole objective being to restore normality and peace in the city. Expressing satisfaction over the way the 639 operation was being carried out, he said there were `no-go -areas' in the city and police and Rangers were free to take action even in such areas where they could not enter in the past. Mr. Malik said flags of political parties had been removed in various places and around 14,000 acres of land occupied by the land mafia had been recovered. Rebuffing allegations levelled by the Leader of Opposition in the National Assembly, Mr. Malik said that he had no links with any terrorist. He said he had good relations with the Muttahida Qaumi Movement which was in parliament with people's mandate. 640 "It will be unjustified to declare any political party `terrorist' without any evidence," he said. Commenting on an allegation levelled against him by PPP leader Zulfikar Mirza, he said he had not released any criminal in Karachi and if anyone had evidence he could present in the court. The minister claimed that no foreign security agency was operating in the country, adding that he had advised foreigners to visit only permitted areas because of security concerns. He said a committee had been formed to probe an incident in which journalists of 641 a private TV channel had been tortured by some unidentified elements. Action will be taken on the basis of findings of this committee. "A judicial commission was formed on the demand of journalists to probe into the killing of Saleem Shehzad and the commission has submitted its report to the interior ministry which I have handed over to NPC's President Afzal Butt," he said. The minister said that four people had been arrested in the case about murder of journalist Wali Khan Babar." Inasmuch as, the Prime Minister also 642 admitted more than once that PPP men were also involved. in violence in Karachi. Reference is made to the news item published in The News International dated 25-8-2011:-"Prime Minister Yusuf Raza Gilani-on Wednesday ruled out a military operation in Karachi unless all other options were exhausted first but admitted before his cabinet colleagues that PPP men were also involved in the Karachi killings. A cabinet minister confided to The News that the Prime Minister told the cabinet meeting that the law enforcement agencies in Karachi were confident to control the deteriorating law and order 643 situation in the city in just a fortnight's time provided they were given a free hand. However, the minister did not explain if the much- demanded ' free hand is being given to the law enforcers to apprehend and punish the criminal elements there without any fear and favour. Prime Minister Gilani despite being chief executive is not relevant on key policy and administrative matters including Karachi politics as the Presidency is calling the shots and takes decisions on such matters. The Prime Minister, according to the 644 source, said that the law enforcement agencies are seeking a free hand and demanding that there should be no political interference from any side to ensure early peace and stop target killings. Political interference and the backing of criminals and killers by the political parties are seen as the major hurdles in the way of durable peace in the city. Briefing the cabinet about the Karachi situation, the Prime Minister admitted that besides the MQM and ANP, the PPP men whom Gilani described as "our men" are also involved in the Karachi killings. The cabinet Ministers were almost 645 unanimous to demand that the law enforcement agencies should be given a free hand to get hold of the criminals, target killers and gangsters irrespective of their party affiliation. Some of the Ministers even demanded that the information regarding such criminals, killers and gangsters should be made public without any political considerations. The cabinet was told that there are nine troubled areas in Karachi which require focus of the law enforcers to check crime and curb target killing. The Prime Minister while referring to a demand for the deployment of army in Karachi to launch operations against the criminal elements said that the 646 government would not deploy the army in Karachi till the time all other options were availed. The cabinet source disclosed that the Sindh government is also unhappy with the. interference from the federal government through interior minister into the Karachi situation. The source said that Prime Minister Gilani sounded the provincial government's urge to let it settle the problem that falls within the provincial domain. Only recently provincial minister Dr Zulfikar Mirza is said to have blasted the interior minister during a high-level official meeting in Karachi for the latter's uncalled for interference into the Karachi 647 affairs. Later, however, Mirza was summoned to Islamabad by President Zardari and gut up a media show with Rehman Malik to show that there was no ill-will between them." Similarly, the President of Pakistan is fully aware of the situation as it is evident from various news items appearing in different newspapers. 88. As all the stakeholders are desirous of maintaining their hold on the economic resources of Karachi, therefore, it is imperative for all concerned to take necessary steps and disband the militant outfits voluntarily for the sake of Karachi as well as this country because on account of their criminal activities a loss of about 2.5 648 billion is being caused daily to the Government and ultimately this burden is passed on to the general public. All the circumstances which are prevailing in Karachi based on credible information seem to be very serious and if the situation of law and order is not controlled/improved, happening of a major debacle in Karachi city cannot be overruled, therefore, it is high time for the politicians in particular to cooperate with each other for making Karachi a peaceful city. 89. As for as banning of MQM is concerned on the basis of the material and the other information placed before us as well as. the statement of Dr. Zulfiqar Mirza, former Home Minister, Government of Sindh, which is sought to be produced by Mr. Ghulam Qadir Jatoi, it may be observed, 649 subject to all just exceptions, that the instant probono publico proceedings, which are essentially inquisitorial in nature, cannot be allowed to assume an adversarial character. 90. Moreover, under Article- 17(2) it is the duty of the Federal Government to declare that a political party has been formed or is operating in a manner prejudicial to the sovereignty or integrity of Pakistan and within fifteen days of such declaration, refer the matter to the Supreme Court whose decision on such reference shall be final, therefore, no further comment on this aspect of the case, lest it may cause prejudice to any of the parties, is called for. 91. According to the available record, land grabbing is one of the factors responsible for 650 causing disturbances in Karachi and there is no denial by anyone appearing before the Court. Same position is in respect of drug trafficking, etc. Crimes are also being committed at large scale by foreign nationals nearly 2.5 million in number belonging to different countries including Bangladesh, Burma, India, etc. As far as the question of de-weaponization is concerned, no one amongst the interveners has opposed it, therefore, a methodology has to be devised by the Government by following the law on the subject i.e. Surrender of Illicit Arms Act, 1991, and/or if need be, further laws on the subject can be enacted/promulgated to achieve this object. In this behalf, in Bangladesh following steps were taken. (i) Illegal arms collection programme carried out in 2002-2003 as part of 651 Bangladesh's crackdown on criminals, operation Clean Heart. (ii) Bangladesh's biggest illegal arms haul took place in Chittagang on 2-4-2004. 92. An identical situation was prevailing in Malaysia and that Government with full commitment and sincerity had also collected illicit arms from the criminals. Similarly, this task can be completed in our country as well; if there is honest commitment on the part of the law enforcing agencies but in the instant case without depoliticizing the police, positive result apparently seems to be an uphill task, however, to ensure peace in Karachi, certain steps will have to be taken. The law enforcing agencies will have to be de-politicized as well as for recovery of 652 illicit arms effective measures will have to be taken under a proper programme to be launched by the Government. As far as the question of presence of 2.5 million aliens in Karachi is concerned, it is more alarming compared to the activities of the criminals involved in heinous crimes, like target killing, etc. This aspect of the case would reveal that the presence of such persons is not only a factor for increase in crime; but at the same time without proper registration, they are a burden on the national economy, inasmuch as their presence can give rise to so many other administrative problems, including obtaining of National Identity Cards by them. If they have succeeded in this venture and claim themselves to be citizens of Pakistan and have also succeeded in registering their names in the electoral list, it would be tantamount to depriving the actual electorate from choosing their 653 representatives, inasmuch as due to their presence, areas have expanded considerably, which directly affects the delimitation of the constituencies meant for holding elections of the Provincial Assembly and the National Assembly, therefore, the Government should take immediate action against them in accordance with law, namely, the Foreigners Act. NADRA and the Police must undertake a careful cleansing process of such people and NADRA must have separate records and computer files based on proper and cogent evidence. NADRA and police should cooperate in Karachi through an intensive drive to identify foreigners, block their NIC cards after due process of law and special teams should be appointed and dedicated for this job by DG NADRAT and IGP so that this can be completed in the course of next one year or so. Then the law must take it own course in each case. This must be given 654 high priority. 93. The learned Attorney General, in his submissions, also referred to the Quranic verse, viz., killing of one person is killing the entire humanity, therefore, there could not be two opinions that killings in Karachi during the last few months are condemnable, but for such reason, question for determination would be as to whether the State can be held responsible for the actions of the criminals, who have committed crimes, or the individuals are to be held responsible for their acts under the relevant laws independently. The learned Attorney General, as per the directions of this Court contained in the order dated 24-8-2011, has placed on record reports of the Special Branch of Police, Government of Sindh and the IB, and he also arranged a presentation 655 by ISI (however, he was not present during the presentation). As far as commission of crimes is concerned, it is always done by the accused persons individually or collectively. Ordinarily, when any crime is committed by an individual, he is considered to be the accused of the State for violating its laws and when crimes individually or collectively are committed by the perpetrators challenging the authority of the Government creating anarchy, the State is bound to control the crimes and at the same time protect its citizens against the criminals. In the instant case, according to the figures submitted by Mr. Abdul Fattah Malik; learned Advocate General, Sindh, during the hearing, in the current year 2011, 1310 persons have been murdered, whereas, in one month, figures of which have been obtained by the Court vide order dated 24-82011, admittedly, 306 persons have been 656 murdered and 159 persons have been injured. When murders of innocent persons at the hands of perpetrators who belong to different communities are being committed as a matter for vengeance and as tit for tat without control of the executive authorities of the Provincial Government, it clearly indicates that lawlessness has reached a point where the State through the Provincial Government in exercise of its executive authority is not in a position to provide security to its citizens and on account of lack of administrative authority of the Government, so many persons have been deprived of their right to life and liberty enshrined in Article 9 of the Constitution. 94. As far as the arguments of the learned Attorney General that under the Constitution a procedure has been provided for the 657 removal of the Provincial and Federal Governments ruling the country after the election, therefore, it could only be possible when the procedure so laid down in the Constitution is followed. There is no cavil_ with this proposition; however, in the instant proceedings, this argument is not relevant. Learned Attorney General has also stated that as far as the suggestions. made before the Court for imposing Emergency under Articles 233 and 234 of the Constitution, or calling the Army in aid of civilian administration under Article 245 of the Constitution, or the steps to be taken by the Provincial Government in this behalf arc the actions, which are purely for the Federal Government or the Provincial Government to initiate and no direction can he given by the Court in this respect. Suffice it to observe that the Federal Government is duty hound' under Article 148(3) of the 658 Constitution to protect every Province against internal disturbances and to ensure that the Government of every Province is carried on in accordance with the provisions of the Constitution, therefore, the suggestion put forward during the arguments on behalf of some of the parties does not mean that this Court has issued the directions. Only attention of the Federal Government has 'been drawn towards the Constitutional provisions which, according to their suggestions, should also be invoked for maintaining law and order in the Province of Sindh instead of paving way for any unconstitutional action by any adventurer as it had been happening in the past. Reference may be made to the cases of Haji Muhammad Saifullah Khan (supra), Khawaia Ahmad Tang Rahim. (supra) and Benazir Bhutto (supra) Similarly, exercise of the authority to call Army in aid of civil 659 administration to control disturbances under Article 245 of the Constitution is only one of the options, which lies with the Federal Government, as such its consequences are bound to follow strictly in accordance with the provisions of the Constitution. 95. Learned Attorney has agreed that this Court has power to pass appropriate orders as called for in view of the facts and circumstances, but his opinion was that as now situation is manageable and under control, therefore, in the instant proceedings no order is required to be passed. For the reasons which we have already mentioned hereinabove, we are not in a position to subscribe to his viewpoint because overwhelming material is available on record, reference of which has already been made hereinabove repeatedly, to persuade us 660 to form an opinion that bloodshed, arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc., were being committed within the knowledge of the State through Provincial Government/Executive but it remained a silent spectator and prima facie failed to take appropriate action, may be for some political reasons, but the Constitution does not allow the Executive to compromise its position at the cost of innocent citizens who lost their lives, property, liberty and dignity because of the expediency of the Provincial or Federal Government. It may not be out of context to mention here that despite hearing of this case, during course whereof law enforcing agencies have been asked time and again to bring the criminals to book without any discrimination, the criminals continued to harass the general 661 public/innocent citizens continuously, as in the recent past a trader has been kidnapped for ransom from Sher Shah Kabari Market. We have been informed during the hearing that there is a strike in the market and accused persons have demanded ransom, but so far the matter has not been finalized/resolved. On our direction, concerned SSP of the area appeared in Court and stated that pickets/police check posts have been established at different places, but despite that, there is no control over the crimes. We have pointed out to the learned Attorney General that this is high time when the Executive of the Provincial Government, instead of compromising the position, on account of any reasons known to them, should come forward with iron hands to control the crimes. We may point out here that the material so brought on record and the presentation which has been given by the 662 Intelligence Agency, must also have been brought to the notice of the Executive of the Province and by the time it has become known to everyone about the persons involved in causing disturbances because on. such a large scale internal disturbances cannot take place without the, support or passivity of the persons who are themselves at the helm of affairs and the Provincial Executive Authorities in such a state of lawlessness ought to have felt no hesitation to bring them to book, but here it appears, that there are certain expediencies which are preventing them to do so. In such an abnormal situation the Federal Government also cannot be considered to be oblivious of the happenings, which presumably knows all these facts obviously prevailing in the economic hub of country, as the reports which we have gone through must have been brought to the notice of the Chief 663 Executive of the Federal Government and other authorities as well, therefore, they should have swiftly moved in to take action in order to ensure that the Provincial Government is allowed to work smoothly in accordance with the Constitution. Leaned Advocate General who has also pointed out in his arguments that in the police department, 1100 appointments have been made illegally. At the same time, the IGP Sindh who was present in the Court during the hearing, also conceded that for the last about 10 to 15 years, five hundred thousands arms licenses have been issued by the Home Department for arms and ammunition of prohibited bore, however, according to him, with the assistance of NADRA, an exercise is about to commence to verify the status of the licences. He added that in the past, trucks of arms and ammunitions used to be unloaded before the police stations but 664 police did not dare to check them. Mr. Abdul Fattah Malik, learned Advocate General made before the Court many revelations, but did not disclose the names of the groups who were challenging the writ of the Government and undermining its authority through target killings, bhatta collection, etc., which are committed, not for any ethnic reason, but for settling of accounts by groups among themselves in an attempt to establish their authority in the city of Karachi otherwise anyone or all of them would come forward to point out the names of militant outfits involved in the violation of Fundamental Rights of the citizens. 96. From the material so placed on record by the Advocate General it is evident that the disturbances in the Province are not recent ones, but it has been going on for the last 665 many years, in which a large number of innocent persons have been killed by way of tit for tat and the authorities, in the past as well have failed to secure their lives, liberties, etc. According to learned Advocate General, the Province of Sindh being the land of Shah Abdul Laif Bhitai and Sachal Sarmast had been a peaceful place where, after Partition highly educated people migrated to Pakistan. They were living peacefully with original residents of Sindh, but the menace of lawlessness started from the period shown in the charts reproduced hereinabove. He conceded that 2.5 million aliens are also living in Karachi without any registration, but so far the Government could not deport them. However, we have pointed out to him that organized crimes are being committed in Karachi and there is violation of the Fundamental Rights of innocent people and the Government has 666 failed to protect the rights of the citizens, however, individual type of crime or killing of any person on account of personal enmity is not unusual, and for that matter the Executive Authorities cannot be held responsible, but it is to be noted that in the instant case, as discussed hereinabove in detail, the Executive Authority of the Province had prima-facie failed to exercise its powers to protect the Fundamental Rights of the citizens. 97. Barrister Zafarullah appeared in Constitution Petition No. 61 of 2011 wherein following prayer has been made:-(1) It is therefore respectfully prayed that the judicial Commission under the supervision of Supreme Court of 667 Pakistan may be appointed, any Hon. Judge sitting or retired may be appointed as its Chairman. (2) It is further prayed that under in no circumstances Pakistan Army may be summoned to meet the situation in Karachi or to restore the law and order, since it is trap desired by foreign forces and will be breach of Articles 55 & 56 UNO and other resolutions of General Assembly." The learned counsel has referred to the Charter of United Nations, importance of human rights and also stated that had the Court not taken cognizance of the matter, the crime rate would not have declined and if target killings, etc. had continued 668 unabated, it would have provided a cause of interference to the United Nation Forces. Except for the dramatic drop in crime rate, we do not entertain this argument because we are of the opinion that in this country there is a written Constitution, which if implemented through the Federal and the Provincial Governments by strictly adhering to its provisions without any political considerations, the situation of law and order can be managed. He also opposed the intervention of the Army by calling it in the aid of Civil Administration. This issue has already been discussed in the preceding paragraphs, therefore, the same need not be further dilated upon. 98. Mr. Anwar Mansoor Khan, President of Sindh High Court Bar Association, at the outset, contended that Karachi is faced with 669 complex issues of law and order, which had its origin in the politico- ethnic violence in which different communities speaking different languages like Urdu, Pashto, Balochi, Sindhi, Punjabi, etc. were involved. However, he admitted that members of these communities have been involved in such like activities mainly for the socio-economic reasons. As the residents of Karachi in different areas, particularly where violence is at its peak, are even deprived of basic amenities of life, therefore, these poor persons are being used by different vested interests including political parties/groups to achieve their ulterior objectives and to watch their economic interests. These persons/groups having so called vested interests are themselves well off having established businesses and are not suffering from any economic problem. The police is so scared of them that they remain under the 670 influence of these groups who use poor persons to achieve their illicit objectives. Inasmuch as, if an ordinary person approaches the police, his F.I.R. is not registered and if a victim succeeds in getting the case registered, prosecution does not take interest, as a result whereof their cases fail. Besides, according to him, mostly the perpetrators belong to an organized group having blessings and support of political parties, therefore, the witnesses are so scared that they avoid to appear in court. Therefore, without addressing the afore-noted problems of persons belonging to different communities who fall within category of less resourceful persons, the law and order situation prevailing in the city cannot be controlled. He referred to a number of cases from the Indian Jurisdiction and the reports of the Indian Law Commission. However, he conceded that no witness protection 671 program is available. When we invited his attention towards sections 21, 21A, 21B, 21C of the Anti-Terrorism Act, 1997 which provide guidelines for the protection of Judges, he submitted that these provisions of law have also not been made applicable fully, as a result whereof even in AntiTerrorism Courts, a large number of accused have gone scot-free. Learned counsel stated that there are political parties who apparently are acting against the interests of the country and are involved in disturbing the law and order in Karachi, to achieve their nefarious objects because the persons controlling such parties have got no stake in Pakistan. Inasmuch as, there are persons who enjoy dual nationality or who have vast unexplained and unaccounted for assets outside Pakistan or who are not allied with any political party and who are against the sovereignty of the country, all such persons 672 are required to be dealt with according to the Constitution. We have pointed out to him that Article 17 of the Constitution 'read with section 15 of the Political Parties Order, 2002 can be invoked if the Government succeeds in establishing that any political party is operating in a manner prejudicial to the sovereignty or integrity of Pakistan. Learned counsel emphasized that Article 4 of the Constitution is one of the most important Articles, under which a citizen is entitled to enjoy the protection of law and to be treated in accordance with law being his inalienable right, therefore, this Article confers the Fundamental Rights upon a person to seek security of life or liberty from the State and similarly, Articles 14, 18 and 24 in respect of dignity of man, freedom of trade, business and profession and protection of property. Whereas in Karachi -for the last many years the State/Provincial Government 673 had failed to implement their Fundamental Rights and citizens are not safe and secure. According to him, too, there are target killings, murders, bhatta mafia, land mafia, drug mafia, dead bodies in bags are found lying in the streets and the accused persons on account of their influences or being desperate and hardened criminals, could not be arrested. He stated that as per reports, which have been placed on record by different agencies without claiming confidentiality and other information which has been received by this Court, furnish sufficient evidence to hold that the Provincial Government has not been able to act in accordance with the Constitution to protect the dignity, freedom of trade, business and profession and property. He has referred to Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57), PLD 2004 SC 363 to emphasize that it is the 674 duty of the Government to maintain law and order. We have inquired from him as to whether in a situation where criminals belonging to all political parties are involved in disturbing the law and order, whether the Executive/Provincial Government can maintain the law and order, he stated that, in fact, the prevailing situation indicates that there is no will on the part of the Executive to run the government according to the Constitution otherwise it would not be difficult to remove such elements from their rank and file. In this behalf, it is to be noted that in the Daily Dawn dated 14-9-2011, the Federal Interior Minister made a statement that criminals arrested in Karachi during the targeted operation belong to different political parties and that the Government has evidence (audio and video) against them, which will be used against them if permitted by this Court. However, he stated that such 675 criminals have not been deputed by the political parties, but somehow such elements have managed to get refuge behind them after committing crimes. During hearing of this case, we have observed time and again that the political parties represented before us asserted in categorical terms, that criminals/militant outfits are not part of their political parties and declared that whosoever claims association with any political party, is incorrect. It is to be noted that in the situation as the Interior Minister has himself explained, it has become admittedly a highly difficult task for the Provincial Government to maintain law and order. Be that as it may, this all depends upon the political considerations in respect whereof we would not like to comment, but we have to confine ourselves only to the extent of the question which has been raised in the order dated 248-2011, namely, the situation of law and 676 order which has been disturbed on account of bloodshed; arson, kidnapping/abduction for ransom, widespread violence, illegal collection of money (bhatta) from traders, etc. 99. Mr. Abdul Fattah Malik, AG Sindh has submitted a synopsis of his arguments on behalf of the Government of Sindh. It may be noted that in fact he had to appear on the Court notice and the Province of Sindh put up its appearance through Mr. Abdul Hafeez Pirzada, learned Sr. ASC who has also filed, under instructions, suggestions which have been reproduced hereinabove. However, he reserved his right to further argue the case after the arguments of learned counsel appearing on behalf the interveners, particularly Syed Iftikahr Hussain Gillani, Sr. ASC who placed on record reports of the 677 JIT. In the meanwhile, Intelligence Agencies also shared classified information with the Bench. The DG Rangers also appeared in person and made submissions which have been dealt with hereinabove, including one that in Karachi the situation of law and order is worse than that of North Waziristan, but surprisingly on 14-9-2011 the learned Advocate General conveyed that Mr. Abdul Hafeez .Pirzada, learned Sr. ASC feels contented with the arguments made earlier and does not want to make any further arguments before the Bench. The points he has put up before the Court have been dealt with hereinabove, particularly with regard to the statement of fact in which he has suggested that this Court should give a wake up call to the Provincial Government, which according to him means that in the past violation of Fundamental Rights of the citizens particularly those whose lives and 678 properties have not been secured, was admitted and for the future he was asking the Court to give a wake up call to the Provincial Government. 100. The learned Advocate General in the written submissions has stated as follows:-(1) That the Government of Sindh has never failed to deal with the law and order situation in the Province of Sindh and Government of Sindh is fully determined to protect the life, liberty, dignity, property and freedom of general public. (2) That the government of Sindh and law enforcement agencies along with the 679 relevant authorities are fully competent to control, curb and deal with any internal disturbance and the government of Sindh has proved it in the matter of:-(a) Control of Law and Order situation in Katcha area and other parts of internal Sindh. (b) To bring back normalcy in the Law and order situation in Karachi. (3) That the Government of Sindh denounces all forms of violence, terrorist activities, subversion and lawlessness in the Province and in this regard the Government of Sindh seeks support from all the political parties. 680 (4) That the Government of Sindh has unshaken, irreversible commitment and determination to deal with the criminals in city of Karachi in particular and on the province level at large and no party affiliation would deter its will and commitment. (5) That the government of Sindh has taken concrete steps from prevention and control of crime including the deployment of Rangers in the city of Karachi, as well as deployment of additional forces by transfer from the Interior of Sindh of Karachi. (6) That the coalition Government of the Province of Sindh has strong will of 681 continuing action against criminals in Karachi and in order to deal with any uprising in crime rate, concrete steps have been taken by Government of Sindh to enhance the capacity of the police, to raise the morale of the police as well as to strengthen this institution at the provincial level. (7) It is categorically made clear that at no stages of these proceedings the Government of Sindh as conceded that it failed to control this situation or has shown any slackness. (8) It is regrettable that on behalf of political groups appearing before this Court, political insinuation and allegations were levelled upon the ruling 682 coalition Government of Sindh in sheer violation and disregard of the observations made by this Court that these proceedings are no-adversarial. (9) Present elected Government is mandated by the Constitution to serve the people of Sindh for 5 years, therefore, the Government of Sindh has' made short term, midterm and long term strategies to eradicate the crime at all costs. (10) It is worth mentioning that the Province of Sindh unfortunately is his very severely this year as well as it was hit last year by the natural calamity. The Government of Sindh successfully rehabilitated millions of affectees of last 683 year flood, however due to global changes in the climate Government of Sindh is demonstrating full resolve, utmost will and continuous efforts to enhance capacity for dealing with such disaster. However, side by side full attention is being given to other issues being faced by the people of this province. 101. The reports of JIT, CID, Special Branch of Police and IB and other material is available on record including presentation given by the IG Police, the submissions made by Major General Aijaz Ahmad Chaudhry, DG Rangers and admission of IG Police to the effect that 30 to 40 percent police officials are non-cooperative because of their appointments on political considerations, coupled with the fact that it 684 is the basic duty of the police to maintain the law and order, the police has been politicized/demoralized. The learned Advocate General has also admitted that 1100 appointments made on political considerations have already been set aside. The stand taken by him in his synopsis seems to be inconsistent and not acceptable in view of the above facts. It is to be noted that as per his own statement filed in Court, following persons have been murdered during the last three years i.e. 2008 to 2011: 2008: 2009: 2010: 2011: 1142 1083 1484 1311 (up to 31-82011) 685 He emphasized that the law enforcing agencies have succeeded in causing arrest and in this behalf he has filed the statement for the months of January to September, 2011 prepared by the Karachi police, which reads as under:-- Yea Number Gang r Of Buste encounte d r 201 704 512 0 Dacoi Dacoity/ Arreste t criminal d P.Os. Killed s Abs arrested MDs 64 5286 354 6427 0 However, we have noted that about 80 percent F.I.Rs., which have been registered during the last one month, have been cancelled by declaring them as "A" class 686 and whatever progress has been made in causing arrests of the accused, it is after instant proceedings by this Court. We have also noted as mentioned hereinabove that the Chief Secretary and the IGP Sindh have categorically stated that now powers have been given to the Rangers, so the question arises as to why the Rangers were not put into action earlier when this force was already deployed in the Province of Sindh from 1994 onward; and why the Provincial Government was not interested in securing the life, property and dignity of the citizens. Admissions made by the IGP in respect of no-go areas, drug mafia and the statement of the Interior Minister referred to above are sufficient to hold that the Provincial Government had no intention to secure the life and property of the people in the true spirit of Article 4 of the Constitution, envisaging that all citizens are entitled to 687 enjoy the protection of law and are required to be treated in accordance with law. What protection was given to those persons who have lost\their lives and property? While dealing with the argument of the learned Attorney General, we have already emphasized that the alleged crimes have not been committed ordinarily, but these are organized crimes and it was the duty of the Provincial Government to have controlled the same, but it is only after the Court took suo motu notice that some improvement seems to have been made in the law & order situation in Karachi. 102. Khawaja Naveed Ahmed, learned ASC stated that he represents the Friends of Lyari International, a UK based organization. According to his version, since 2009 till date, 65 Balochi speaking people have been 688 killed in target killings, but so far no appropriate action has been taken to trace the accused persons, therefore, it is not understandable as to whom they should blame for such atrocities. It may be observed here that in respect of all the cases in which human beings have been killed irrespective of their ethnic origins, it is the duty of the State/Executive to ensure action and bring the accused persons to book. 103. Dr. Babar Awan, Sr. ASC commenced his arguments by reciting verses Nos.22 & 23 from Sura Almaida. Translation from Arabic to English has been reproduced hereinbelow:-"[5:22] `O my people, enter the Holy Land which Allah has ordained for you 689 and do not turn, back, for then you will turn losers'. [5:23] They said, `O Moses, there is in that land a haughty and powerful people, and we shall not enter it until they go forth from it. But if they go forth from it, then we will enter it'." In view of the above Injunction of Islam, as we have already noted in the opening Para of the judgment that if anyone killed a person not in retaliation of murder, or to spread mischief in the land, it would be as if he killed all mankind, and if anyone saved a life, it would be as if he saved all mankind, which is to be accepted by all the Muslims. It is clear from the above verses that life of a human being is very precious, therefore, 690 Allah Almighty has condemned the killing of even a single human being and has equated it with the killing of the whole humanity, and vice versa, if a man is saved, the whole humanity will be deemed to have been saved. 104. Leaned counsel candidly stated that he supports the suo motu jurisdiction of this Court, as according to him, in terms of Article 29 of the Constitution, the judiciary being one of the organs of the State can exercise such jurisdiction. 105. However, he complained that in respect of incident of 18-10-2007, which took place in Karachi wherein Mohtarama Benazit Bhutto, former prime. Minister of Pakistan was attacked by the terrorists and so many 691 persons lost their lives, according to him, despite requestmade by him on 27-10-2007 before a Bench comprising one of us (Mr Justice Iftikhar Muhammad Chaudhry) and Mr. Justice (R) Javed Iqbal no such action was taken by this Court. It is to be noted that the statement so made by him was not based on correct information, inasmuch as Suo Motu Case No. 25 of 2007 was registered wherein, or 1-11-2007, he personally appeared voluntarily and comments were called, however, subsequently on 7-1-2007 Justice (R) Abdul Hameed Dogar (so called Chief Justice) directed the office to keep that file pending without any further proceeding. 106. According to the learned counsel, the executive authority of the Federation includes the four Provinces, Federally Administered Tribal Areas administered 692 through the President, the Islamabad Capital Territory, Gilgit and Baltistan, formerly known as FANA, whereas; in respect of Province of Sindh, the authority of the Provincial Government extends to 23 districts of the Province of Sindh. Out of these areas, internal disturbance relating to law and order had allegedly taken place only in the city of Karachi. So, his stance is that the Executive Authority has failed neither at the federal nor at the provincial level. He, however, admitted that in terms of Article 232(1) read with Article 148(3) of the Constitution, there is internal disturbance in Karachi. 107. Learned counsel further argued that neither the Federal Government nor the Provincial Government has failed to maintain the law and order in the Province 693 of Sindh and any declaration, if made by this Court, which is the most credible institution of the State of Pakistan, being the final arbiter of all disputes and where all interpretation ends, may invite some global trouble with very serious repercussions, inasmuch as the country is in the middle of a war on the western and eastern fronts and the latter front is more hostile and sensitive, therefore, an attempt is being made by someone to obtain such a declaration that the executive authority has failed to deliver. According to him, such a declaration cannot be made as Pakistan is a nuclear State, therefore, how can it fail in maintaining its affairs. Argument so raised by the learned counsel has no substance. Perhaps he has lost sight of two important legal expressions, namely, the State and Executive or the Government. Dr. Babar Awan, learned counsel has substituted the term 694 ""executive" with the ""State". Hence this requires some elaboration. 108. The word "executive" has been defined in the American Heritage Dictionary of the English Language, Fourth Edition as under: n. ... The chief officer of a government, State, or political division. 3. The branch of government charged with putting into effect a country's laws and the administering of its functions. 3. Of or relating to the branch of government charged with the execution and administration of the nation's laws. 695 In Collins English Dictionary - Complete and Unabridged, the term has been defined in the following terms:executive n. ... the branch of government responsible for carrying out laws, decrees, etc.; administration ... having the function or purpose of carrying plans, orders, laws, etc., into practical effect executive branch 696 n. ... the branch of government charged with the execution and s enforcement of laws and policies and the administration of public affairs; the executive." Some of the other definitions are as follows: Cultural Dictionary "The branch of federal and state government that is broadly responsible for implementing, supporting, and enforcing the laws made by the legislative branch and interpreted by the judicial branch. At the state level, the executive includes governors and their 697 staffs. At the federal level, the executive includes the president, the vice president, staffs of appointed advisers (including the cabinet), and a variety of departments and agencies, such as the Central Intelligence Agency (CIA), the Environmental Protection Agency (EPA), the Federal Bureau of Investigation (FBI), and the Postal Service (see postmaster general). The executive branch also proposes a great deal of legislation to Congress and appoints federal judges, including justices of the Supreme Court. Although the executive branch guides the nation's domestic and foreign policies, the system of checks and balances works to limit its power." Oxford Guide to the US Government: 698 "The departments and agencies that take political direction from the President, including the 14 cabinet-level departments, constitute the executive branch of the federal government. ""The executive branch" is not a phrase found in the Constitution, but it is favored by Presidents because it assumes that these departments are under their sole direction. The Constitution, however, provides that officials of the departments are to take direction not only from the President but also from laws passed by Congress. Top officials in the executive branch, generally referred to as "the administration," are appointed by the President with the, advice and consent of 699 the Senate, and they serve at the pleasure of the President. The President uses his Executive Office agencies to supervise their budgets, their legislative requests to Congress, and the regulations they make and enforce. Independent regulatory agencies (such as the Federal Trade Commission), units of government that are insulated by Congress from political direction (such as the Federal Reserve Board), as well as several agencies that perform functions for Congress (such as the Congressional Budget Office) are not part of the executive branch. Presidential appointment and removal powers over officials in these agencies may be limited by Congress, and the President may not provide them with political direction. 700 In politics, a person or persons constituting the branch of government charged with executing or carrying out the laws and appointing officials, formulating and instituting foreign policy, and providing diplomatic representation. In the U.S., a system of checks and balances keeps the power of the executive more or less equal to that of the judiciary and the legislature." 109. On the other hand, the word "State" is defined as under:-Advanced Law Lexicon A body politic, or society of men, united 701 together for the purpose of promoting their mutual safety and advantage, by the joint efforts of their combined strength .... Organization of the body politic or one of the constituent 1 members of a federation or organized political community with government recognized by the people ... The political system of a body of people who are politically organized; the system of rules by which jurisdiction and authority are exercised over such a body of people ... A state or political society is an 702 association of human beings established for the attainment of certain ends by certain means. A state is an institution, that is to say, it is a system of relations which men establish among themselves as a means of securing certain objects, of which the most fundamental is a system of order within which their activities can be carried on. Modern states are territorial; their governments 'exercise control over persons and things within their frontiers..." Corpus Juris Secondum n. ... it may signify a sovereign political 703 unity as set forth in International Law. Collins English Dictionary - Complete and Unabridged n. ... (Government, Politics & Diplomacy) a sovereign political power or community ... the territory occupied by such a community ... the sphere of power in such a community affairs of State ... (often capital) one of a number of 704 areas or communities having their own governments and forming a federation under a .sovereign government, as in the US (Government, Politics & Diplomacy) ... (often capital) the body politic of a particular sovereign power, esp as contrasted with a rival authority such as the Church ... The supreme public power within a sovereign political entity. ... The sphere of supreme civil power within a given polity: matters of state. ... A body politic, especially one 705 constituting a nation: the states of Eastern Europe. The concept of the State A State is a form of political association or polity that is distinguished by the fact that it is not itself incorporated into any other political associations, though it may incorporate other such associations. The State is thus a supreme corporate entity because it is not incorporated into any other entity, even though it might be subordinate to other powers (such as another State or an empire). One State is distinguished from another by its having its own independent structure of political authority, and an attachment to separate physical territories. The State is itself a 706 political community, though not all political communities are States. A State is not a nation, or a people, though it may contain a single nation, parts of different nations, or a number of entire nations. A State arises out of society, but it does not contain or subsume society. A State will have a government, but the State is not simply a government, for there exist many more governments than there are States. The State is a modern political construction that emerged in early modern Europe, but has been replicated in all other parts of the world. The most important aspect of the State that makes it a distinctive and new form of political association is its most abstract quality: it is a corporate entity. A sovereign State is a State with a 707 defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a State which is neither dependent on nor subject to any other power or State. While in abstract terms a sovereign State can exist without being recognised by other sovereign States, unrecognized States will often find it hard to exercise full treaty-making powers and engage in diplomatic relations with other sovereign States. The word "country" is often used to refer to sovereign States, although it means, originally, a geographic region. 708 Sovereignty has taken on a different meaning with the development of the principle of self-determination and the prohibition against the threat or use of force as jus cogens norms of modern international law. The UN Charter, the Declaration on Rights and Duties of States, and the charters of regional international organizations express the view that all States are juridically equal and enjoy the same rights and duties based upon the mere fact of their existence as persons under international law. The right of nations to determine their own political status and exercise permanent sovereignty within the limits of their territorial jurisdictions is widely recognised. In political science, sovereignty is 709 usually defined as the most essential attribute of the State in the form of its complete self-sufficiency in the frames of a certain territory, that is its supremacy in the domestic policy and independence in the foreign one. In the social sciences, a State is a compulsory political institution that maintains a monopoly of the legitimate use of force within a certain territory. Etymology and definition Etymology The word State and its cognates in other 710 European languages (stato in Italian, etat in French, Staat in German) ultimately derive from the Latin status, meaning "condition" or "status." With the revival of the Roman law in the 14th century in Europe, this Latin term was used to refer to the legal standing of persons (such as the various "estates of the realm" noble, common, and clerical), and in particular the special status of the king. The word was also associated with Roman ideas (dating back to Cicero) about the ""status rei publicae", the "condition of public matters". In time, the word lost its reference to particular social groups and became associated with the legal order of the entire society and the apparatus of its enforcement. 711 In English, "'State" is a contraction of the word "estate", which is similar to the old French estat and the modern French etat, both of which signify that a person has status and therefore estate. The highest estates, generally those with the most wealth and social rank, were those that held power. According to the Oxford English Dictionary, . a State is "a an organized political community under one government; a commonwealth; a nation. b such a community forming part of a federal republic, esp the United States of America". However, the most commonly used definition is Max Weber's, which defines the State as a compulsory political organization with a centralized government that maintains a monopoly 712 of the legitimate use of force within a certain territory. General categories of state institutions include administrative bureaucracies, legal systems, and military or religious organizations. The concept of the State can be distinguished from the concept of government. The government is the particular group of people, the administrative bureaucracy, that controls the State apparatus at a given time. That is, governments are the means through which State power is employed. States are served by a continuous succession of different governments. 713 Each successive government is composed of a specialized and privileged body of individuals, who monopolize political decision-making, and are separated by status and organization from the population as a whole. Their function is to enforce existing laws, legislate new ones, and arbitrate conflicts via their monopoly on violence. In some societies, this group is often a selfperpetuating or hereditary class. In other societies, such as democracies, the political roles remain, but there is frequent turnover of the people actually filling the positions. 110. As against the term "State", a government is an institution whose existence precedes that of the State. A government is a person or group of persons who rule or 714 administer (or govern) a political community or a State. For government to come into being there must be existence of public on the territory of a State. Ruling within a household is not government. Government exists when people accept (willingly or not) the authority of some person or persons to address matters of public concern; the administration of justice, and defense against external enemies being typical examples of such matters. 111. Article 90 of the Constitution defines "executive authority" as "subject to the Constitution the executive authority of the Federation shall be exercised in the name of the President by the Federal Government which consists of Prime Minister and Federal Ministers, who shall act through the Prime Minister who shall be the chief 715 executive of the Federation." Whereas in relation to the Provincial ; Government, Article 129 with the substitution of Governor with the President defines the Executive Authority of the Province consisting of the Chief Minister and Provincial Ministers, who shall act through the Chief Minster. Both these executive authorities represent the Federal and Provincial Governments whereas the institution of State is distinguished from executive authorities as defined in Article 7 of the Constitution as under: -"7. Definition of the State In this Part, unless the context otherwise requires, "the State" means the Federal Government, Majlis-e-Shoora 716 (Parliament), a Provincial Government, a Provincial "Assembly, and such local or other authorities in Pakistan as are by law empowered to impose any tax or cess." 112. Here the object of instant proceedings is not to make any declaration against the State of Pakistan, but one of the Governments, namely, the Government of Sindh Province, which is represented through its executive as defined under Article 129 referred to hereinbefore. Although Article 7 of the Constitution defines the State as the Federal Government, Majlis-e-Shoora (Parliament), a Provincial Government, a Provincial Assembly and local or other authorities in Pakistan empowered to impose any tax or cess, therefore, distinction is abundantly clear as 717 the act of the Executive of the Province is under consideration in terms of Article 129 of the Constitution, which is essentially a distinct and a different concept from the State as defined in Article 7. The order dated 24-8-2011 reproduced supra also explicitly makes it clear that the conduct of the Executive in enforcing Fundamental Rights of the citizens guaranteed under Articles 9, 14, 15, 18 and 24 is under examination, and as far as the State is concerned, its role has not been examined. The arguments so put forward by the learned counsel appear to be irrelevant and are not in the context of the proposition under consideration. This is not for the first time that the conduct of the Provincial Executive is being scrutinized. As such, its performance relating to enforcement of the Fundamental Rights or its failure not to enforce these rights is under examination. Admittedly, under Article 718 184(3), this Court exercises same powers, which are available to a High Court under Article 199(1)(c). The Court can make an order giving such direction to any person or authority including any government exercising power or performing any function and, in or, in relation to, in any territory within its jurisdiction as may be appropriate for the enforcement of Fundamental Rights conferred by Chapter 1 of Part II. Reference in this behalf may be made to the cases of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473), Syed Wasey Zafar v. Government of Pakistan (PLD 1994 SC 621), Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. (PLD 2010 SC 1109) and Federation of Pakistan v. Munir Hussain Bhatti (PLD 2011 SC 752). Also sea Zulfiqar Mehdi v. Pakistan International Airlines Corporation (1998 SCMR 793), Benazir Bhutto (supra), Asma Jilani v. 719 Government of the Punjab (PLD 1972 SC 139), Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), Jibendra Kishore v. Province of East Pakistan (PLC 1957 SC 9). 113. So, on the basis of distinction between the State and Executive authority vis-a-vis the jurisdiction of this Court under Article 184(3), it is concluded that instant proceedings are not against the State but to consider whether' the Provincial Government of Sindh allegedly had failed to enforce the Fundamental Rights of the citizens. However, Pakistan as a sovereign country as well as a nuclear power for all intents and purposes is a successful State because such a State, in the words of Max Weber, maintains a monopoly on the legitimate use of physical force within its 720 borders. But, coming to the fundamental question of exercise of jurisdiction keeping in view of the facts and circumstances noted hereinabove in detail, it is held that this Court is empowered under Article 184(3) to consider any question of public importance with reference to enforcement of any of Fundamental Rights, conferred by Chapter 1, Part II and can make an order of the nature mentioned in Article 199. If the argument of the learned counsel referred to above is accepted, it would be tantamount to abdicating the powers and jurisdiction conferred by the Constitution, thereby refusing to enforce Fundamental Rights conferred by Chapter 1 of Part II in a matter relating to public importance. The scope of the jurisdiction of the Court with procedure, which is to be followed, has been examined in the case of Pakistan Muslim League (Nawaz) v. Federation of Pakistan (PLD 721 2007 SC 642), wherein it has been held that this Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversarial proceedings and while dealing with a case under Article 184(3) of the Constitution, this Court is neither bound by the procedural trappings of Article 199 ibid nor by the limitations mentioned in that Article for exercise of power by the High Court in any case Relevant Para therefrom is reproduced hereinbelow:-"20. After having discussed the' law laid down in the above mentioned cases the judicial consensus seems to be as follows: (i) That while interpreting Article 184(3) 722 of the Constitution the interpretative approach should not be ceremonious observance the rules or usages of the interpretation but regard should be had to the object and purpose for which this Article is enacted i.e. the interpretative approach must receive inspiration from the triad of provisions which saturate and invigorate the entire Constitution namely the Objectives Resolution (Article 2-A), 'the fundamental rights and' the directive principles of State policy so as to achieve democracy, tolerance, equity and social justice according to Islam. (ii) That the exercise of powers of Supreme Court under Article 184(3) is not dependent only at the instance of the "aggrieved party" in the context of adversary proceedings. Traditional rule 723 of locus standi can be dispensed with and procedure available in public interest litigation can be made use of, if it is brought to the Court by a person acting bona fide. (iii) That the provisions of Article 184(3), provide abundant scope for the enforcement of the Fundamental Rights of an individual or a group or class of persons in the event of their infraction and it would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case. (iv) That under Article 184(3) there is no requirement that only an aggrieved party can press into service this provision. 724 Supreme Court can entertain a petition under Article 184(3) at the behest of any person. (v) That the Article 184(3) is remedial in character and is conditioned by three prerequisites, namely * There is a question of public importance. * Such a question involves enforcement of fundamental right, and * The fundamental right sought to be enforced is conferred by Chapter 1, Part II of the Constitution. 725 (vi) That it is not every question of public importance which can be entertained by this Court, but such question should relate to the enforcement of Fundamental Rights. (vii) That even the disputed questions of facts which do not require voluminous evidence can be looked into where Fundamental Right has been breached. However, in, case where intricate disputed question of facts involving voluminous evidence are involved the Court will desist from entering into such controversies. (viii) That the language of Article 184(3) does not admit of the interpretation that provisions of Article 199 stood 726 incorporated in Article 184(3) of the Constitution. Therefore, this Court while dealing with a case under Article 184(3) of the Constitution is neither bound by the procedural trappings of Article 199 ibid, nor by the limitations mentioned in that Article for exercise of power by the High Court in a case. (McCabe v. Atchison (1914) 285 US 151, S.P. Gupta and others v. President of India and others AIR 1982 SC 149, Standard Vacuum Oil Company v. Trustees of the Port of Chittagong PLD 1961 Dacca 289, Saeed Khan v. Chairman, District Council of Bannu PLD 1967 Pesh. 347, Asma Jilani v. Government of the Punjab PLD 1972 SC 139, Muhammad Boota and 77 others v. Commissioner, Sargodha Division PLD 727 1973 Lah. 580, Hakim Muhammad Anwar Babri v. Pakistan PLD 1973 Lah. 817, National Steel Rolling Mills v. Province of West Pakistan 1968 SCMR 317, Fauji Foundation v. Shamimur Rehman PLD 1983 SC 4.57, Abanindra Kumar Maity v. A.K. Majumdar AIR 1956 Cal. 273, Fazal Din v. Lahore Improvement Trust PLD 1969 SC 223, K.K. Kochumii v. State of Madras AIR 1959 SC 725, Jibendra Kishore v. Province of East Pakistan PLD 1957 SC 9, Messrs East and West Steamship Company v. Pakistan PLD 1958 SC (Pak.) 41 and Waris Meah v. The State PLD 1957 SC (Pak.) 157, PLD 1988 SC 413, PLD 1990 SC 513, 1990 PLC 61 and PLD 1988 SC 416." 114. Thus, in view of the principle laid 728 down hereinabove, this Court is empowered to examine as to whether the executive authorities of the Province have failed to enforce Fundamental Rights in terms of order dated 24-8-2011 and the objections raised by the learned counsel that any declaration in this behalf would have serious repercussions against the State of Pakistan being without any substance for the above reasons are overruled. 115. Learned counsel has emphasized that in a system based on trichotomy of powers being the basic feature of the Constitution, the Armed Forces of Pakistan are also part of the executive or the government as held in the case of Liaqat Hussain v. Federation of Pakistan (PLD 1999 SC 504). There is no doubt about the fact that the Armed Forces also fall within the definition of the 729 executive, but in the instant case, action of the Armed Forces is not under examination. However, this Court has examined this aspect of the case in the light of the judgment cited by the- learned counsel wherein it was held that Pakistan Armed Forces (Acting in aid of Civil Powers) Ordinance, 1998 as amended up-to-date in so far as it allowed the establishment of the Military Courts for control of the civilians, charged with the offences mentioned in section 6 and the Schedule to the said Ordinance is unconstitutional, without lawful authority and of no legal effect. Therefore, it can safely be held that this Court is not exercising such jurisdiction for the first time. This Court has jurisdiction to examine an instrument on the basis of which power to try the accused is conferred upon the executive or the Armed Forces. 730 116. Learned counsel candidly conceded that although in the 18th Constitutional Amendment, more provincial autonomy has been given to the Provinces, but in spite of it under sub-Article (3) of Article 148 of the Constitution it is the duty of the Federation to protect every Province against external aggression and internal disturbance, and to ensure that the Government of every Province is carried on in accordance with provisions of the Constitution. On having so admitted, he has cited following steps taken by the Federation to protect the Government of Sindh from internal disturbances:-1. Placement of civil armed forces (Sindh Rangers and Frontier Constabulary) at the disposal of the Government of Sindh; 731 2. Monetary support of 2.5 billion specifically for training and capacity building of the police department during this financial year; 3. Sharing of real time intelligence with the Province, which is actionable intelligence; 4. Data regarding family tree of criminals maintained in NADRA and the database is shared with the Province after an order by the Interior Minister; 5. Information helped by FIA regarding different crimes and criminals shared with the Provincial Government; 732 6. Blocking of over 20.1 million illegal mobile phone SIMs, which are mostly used in commission of crimes; 7. Grant of 5 billion rupees outside the regular budget (besides .2.5 billion rupees) as a special initiative of the President of Pakistan for enhancing the training and capacity of provincial law enforcement personnel, directing the Provincial Government to equip the Police Department with 15 APCs [20 more APCs are in the pipeline]; 8. Coordination set up is created for Sindh and Balochistan border posts one of the infamous routes of illicit arms to the city of Karachi; 733 9. Customs and FIA intelligence another outfit is created to control gun running and drug trafficking into Karachi; 10. Coastal border management also ordered through the Coast Guards to control the incoming traffic of guns and drug trafficking; 11. Aerial surveillance from SUPARCO for determination of the factum' of land grabbing and to control land mafia; 12. Google imageries through NADRA; 13. Complaint cell is established against bhatta mafia in Karachi on the complaint 734 of Chamber of Commerce, which is being monitored by the Interior Minister directly through the police and all other intelligence sources. 117. He has further stated that the President, Prime Minister, Army Chief and Chief of every Intelligence Agency had visited Karachi and held meetings on the law and order situation. He admitted that the above steps were taken by the Federation from January, 2011 onwards; however, no documentary proof was brought on record. Be that as it may, except the stand taken by the learned counsel in respect of the steps taken by the Federal Government to protect the Province of Sindh from its internal disturbances, although most of the steps fall within the category of long term solutions for the purpose of controlling the 735 disturbances in Karachi but unfortunately neither the executive of the federal government nor of the provincial government succeeded in controlling the internal disturbance as it is evident from the documentary evidence i.e. the report of JIT dated 31-3-2011 and the report of Special Branch of Police Department dated 18-82011 and the presentations of the IGP Sindh as well as the DG Rangers, and id camera briefing by the ISI to the Members of the Bench, which have already been discussed hereinabove. 118. There is no dispute with the fact that only in one month from 24th July to 24 August, 2011, 306 persons lost their lives and in this period body bags, drilled bodies of human beings as well as torsos of persons who were tortured to death were recovered. 736 Although the Rangers, vide deployment notification dated 17-5-1995 was available in the Province, but in the recent past despite internal disturbances powers were conferred upon the Rangers only on 25-8-2011. Although, admittedly the decision was taken in this behalf on 22-8-2011, yet negligence was shown in conferring the authority. In this manner, a huge loss of life and property of the citizens had occurred. It is to be noted that learned counsel, without realizing its repercussions, himself conceded the obligation of the Federation in providing assistance to the Provincial Government in controlling the disturbances in terms of Article "148(3) of the Constitution.' As it has been pointed out hereinabove that at the time when in the year 1997 the Federal Government headed by Mohtarama Benazir Bhutto was dismissed by the President, in exercise of powers under Article 58(2)(b) of 737 the Constitution, one of the reasons for dismissal of the Federal Government was that it had failed to discharge its constitutional obligations under Article 148(3). The principle laid down in the case wherein the order of dissolution of Assembly was maintained by this Court, is undoubtedly applicable to the present situation, as it has been explained by means of the documentary evidence produced by the learned Attorney General and the learned Advocate General before the Court. Therefore, the conclusion can conveniently be drawn that despite the steps taken by the Federation, the situation of law and order has not been controlled and the life and property of citizens in Karachi have not been secured. 119. It is contended by the learned counsel 738 that the Speaker of the National Assembly has, with the consent of the political parties and leaderships acting in furtherance of the national call and duty, constituted a bipartisan Committee of the House to look into the issues of Karachi and Quetta and to recommend desired measures for the restoration of peace and tranquility and the Committee is holding its meetings. He has further stated that the Federation and the Provincial Government of Sindh had the will to control internal disturbances and to achieve this object following steps have been taken and the documents produced before the Court:1. JIT Report dated 31st March, 2011: report is being acted upon to achieve the desired result of controlling internal disturbances in Karachi. 739 2. Special Branch report dated 18th August, 2011, which has also been produced before this Court. Both these reports have already been referred to hereinabove, particularly with reference to hardened and desperate criminals including one Ajmal Pahari, who has shown his connection with MQM. We inquired from the learned counsel that in spite of receiving credible information through both the above reports, as to whether any action has been taken while remaining within the Constitutional framework against the political party/organization with whom allegedly some of the accused have shown their linkage, he stated that as there is democratic system; the people have chosen their 740 representatives and the Government of the day while performing its duty as per the will of the voters will take into consideration all these reports in due course of time. We have pointed out to him not only the above reports, but there are also the reports of IB, Daily Situation reports, presentations of IGP as well as other information which have been received through ISI, which are sufficient to adjudge the position of law and order prevailing presently in Karachi, which can confront not only Karachi but the whole country with a greater disaster if curative measures in accordance with the Constitution and law to control the situation are not taken. Thus, we may note that internal violence in Karachi is also being noted with concern. Reference to a write-up published in The Economist of .27-8-2011, which is reproduced hereinbelow:-741 "ETHNIC warfare in Pakistan's most populous city has reached such a level that Karachi's ambulance service now has to send out a driver matching the racial make-up of the destination district to pick up the victims of gang attacks. Otherwise, the district's gunmen will not let the ambulance through. Now ambulances themselves are coming under fire, as gangsters try to stop them saving the lives of their enemies. Karachi's ethnic wars have claimed some 1,000 lives this year, with more than 100 in the past week alone. By contrast the Taliban and other religious extremists kill tiny numbers in Karachi. A grisly new feature of the carnage is that people are not just being shot. They are being abducted and tortured; then 742 their bullet-ridden, mutilated bodies are dumped in sacks and left in alleyways and gutters. Victims' limbs, genitals or heads are often severed. Torture cells operate across Karachi. The butchery is filmed on mobile phones and passed around, spreading the terror further. Most victims are ordinary folk randomly targeted for their ethnicity. At the city's Abbasi Shaheed Hospital, a public facility, doctors treat only Mohajirs, who dominate the local district and are the biggest ethnic group in Karachi. Mohajirs are descendants of those who moved to Pakistan from India in 1947, when the subcontinent was partitioned. Ambulance crews must determine the ethnicity of patients and take them to the right hospital. 743 If this were just a turf war between criminal gangs, things might be brought under control. But each gang has the patronage of a mainstream political party, in a fight that exploded in 2008 when an election was held to end Pakistan's latest period of military rule. Political support for warring ethnic gangs means the police largely stay out of the conflict: each gang will call on political muscle if its henchmen are rounded up. The provincial authorities launched a crackdown this week, but little is expected of it. The Muttahida Qaumi Movement (MQM), a party established in the 1980s that claims to represent the Mohajirs, once had an iron grip over Karachi. That 744 monopoly is now being challenged by the Awami National Party, which says it speaks for the ethnic Pushtun population, who migrated from the north-west of the country, and the Pakistan Peoples Party (PPP) of President Asif Zardari, which heads the ruling coalition in. the capital, Islamabad. Its gang following is ethnic Baloch, from the neighbouring Province of Balochistan. It is the MQM versus the rest. The conflict's ferocity may yet threaten Pakistan's fragile return to democracy. In recent days Karachi businesses have called for the army to restore order. Violence in Karachi was repeatedly used as part of the justification for toppling four national governments in the 1990s. This city of 18m people is Pakistan's 745 economic lifeline, and the port through which most supplies reach NATO forces in Afghanistan. Away from the ritzy villas of Defence and Clifton districts, the people of Karachi's 3,500 square-kilometer (1,350 square-mile) sprawl live in decrepit homes and apartment blocks set on narrow, filthy streets, where gangs rule with near impunity. Trouble often flares when one ethnic ghetto abuts another. In Korangi, a ramshackle semi-industrial district in the east of the city mainly inhabited by Mohajirs, Pervez has not been to work for 20 days. He mends tyres on Tariq Road in the city centre, a half-hour bus ride away. But since gangs 746 started pulling people off buses and killing them, he has been too afraid. to venture out. "The Pushtuns will cut your throat," Pervez says. "If I am killed, what will my children do?" Kashif Malik, a 32-year-old rickshaw driver and PPP activist, was at home with a friend, Shoib, in Orangi Town, in Karachi's north-west, when gunmen came to the door. Shoib was killed, while Mr. Malik was lucky only to be shot in the arm. He is sure the assailants were from the MQM. Mr. Malik insists that joining a political party offers the safest protection these days. "A lone person cannot survive in Karachi," says Mr. Malik from his bed at the Civil Hospital. Most of those killed are not involved with any political party. Language, 747 clothes and even haircuts betray a person's ethnicity to the killing squads. For more than two decades the MQM has collected extortion money, known as bata, from businesses and homes across the city. Now, using the political backing they acquired in the 2008 election, gangsters associated with the PPP and the Awami National Party, in a loose alliance, also want their share of cash, at the heart of the conflict. Businesses now have to pay off up to three rival groups. In the past week Karachi's markets selling marble, bathroom tiles and medicines have separately staged protests against bata. As for the political parties, they seem to 748 be able to turn the violence off and on as it suits them. This suggests that these are not mere criminals draping themselves in the party flag, but rather integral parts of the parties' political machines. If the violence continues, 'more ordinary people will be forced to seek the protection of a political party, to which they will have to pay more dues. Perhaps this is what the politicians are aiming for. "You can call this the politicisation of crime, or the criminalisation of politics," says a security official in the city. "The State has lost its writ in Karachi." 120. It has to be noted that in the past the democratic governments were dismissed either through the extra constitutional instruments or in exercise of the powers available under the constitutional provisions, 749 inter alia, for the reason that both the Federation tnd the Province had failed to control the disturbance in the Province. Therefore, it is now the right and appropriate time when the democratic set up must adhere to the constitutional provisions to protect the Province as well as the country from internal disturbances. However, in response to this, he has stated that a wake up call is not needed, only a call to attention is sufficient because the Federal Government is answerable to the Parliament and it is very much aware of its duties. We wish that the Federal Government as well as the Provincial Government could succeed in bringing normalcy in the Province according to the Constitution before it is too late to overcome the internal disturbances in view of the material brought before us. 750 121. The Federal Government could have provided assistance to the Provincial Government to control the disturbances without any delay, but we fail to understand the reasons prevailing with the Federal Government in not acting promptly as the learned counsel has himself by reciting verses from Holy Quran pointed out that killing of one human being is tantamount to killing of whole mankind. During the current year, more than 1300 persons were killed. The Chief Secretary had admitted that the decision to extend powers to Rangers to control law and order had taken place on 22-7-2011, but the notification was issued on 25-7-2011, which has already been reproduced hereinabove. Hence, the argument raised by the learned counsel in this behalf does not advance the case of the Federation in any manner. So far the remaining steps, which according to the 751 learned counsel had been taken by the Federation, they all seem to be long term measures. The Federal Government has to protect the Provinces against internal disturbances. Such protection, if required by a Province in terms of Article 148(3) in view of the given facts and circumstances and the scenario presupposes prompt protection and failure to do so makes the Federal Government responsible as it has been held in the cases of Ahmed Tariq Rahim and Mohtarama Benazir Bhutto (supra). 122. The learned counsel emphasized that the executive authorities in Pakistan had not failed in maintaining law and order position and in that .behalf he quoted the example of Swat. Precisely stating, the situation in Swat was altogether different as in view of the specific facts and circumstances pertaining 752 to the said area and there too, the civil administration had to call the military for ensuring the writ of the Government, but in Karachi, which is the hub of economic activity, breakdown of law and order for a single day allegedly causes loss of 2.5 billion rupees everyday. The Provincial Government and the Federal Government owe a duty to the citizens of Karachi to ensure their Fundamental Rights without comparing the situation prevailing over there with any other part of the country. Without prejudice to any findings recorded herein, whether it is Swat or Karachi, equal responsibility lies on the shoulders of the Provincial Government and the Federal Government to ensure the implementation of the Constitution and law. 123. Learned counsel claimed that except in 753 Karachi in other parts/districts of the Province of Sindh, the position of the law and order is normal. We do not want to enter into this controversy because the question relating to other districts of Sindh is not under consideration, although Mr. Abdul Mujeeb Pirzada, learned ASC, who appeared on behalf of Sindh Bachao Committee, had uttered a few words to indicate .that in the interior of Sindh as well, situation of law' and order was not satisfactory. However, it has been pointed out hereinabove that all the limbs of the State, administrative units, etc. have got equal importance as far as the duty of the Provincial Government/Executive or the Federal Government or executive is concerned, but when there is serious situation of law and order like in Karachi and if there is non-adherence to the constitutional provisions, the consequences 754 are bound to reflect on the economic activity of the whole of country as well as internationally. Therefore, the argument so raised by the learned counsel needs no further discussion. 124. The learned counsel referred to the case of Jamat-e-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111) to contend that internal disturbance cannot be equated with the failure of the executive authority. In this behalf, it may be noted that in the cited case, two petitions, bearing Petitions Nos.22 & 25 of 1999 filed by Jamat-e-Islami Pakistan and MQM were filed before this Court under Article 184(3) of the Constitution, challenging the vires of Anti- Terrorism Ordinance (No. IV of 1999) dated 27-41999 on the ground of being repugnant to the Constitution and contrary to the 755 guidelines provided by this Court in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445). This Court examined the expression `disturbances' in the context of amendments made and provided its definition. However, no observation/comparison vis-a-vis executive authority of the government was under challenge, therefore, the judgment being inept is not applicable. 125. He next contended that the will of the Government can be judged from the fact that this Government has constituted JIT to dig out the truth. He referred to p.49 of JIT report to demonstrate that the Special Branch, CID, IB, ISI, MI and Pakistan Rangers are Federal agencies, have prepared the reports and all these reports relate to this year, so this is ample proof of the will of the 756 executive authority to bring back normalcy in Karachi. It is important to note that this report was neither filed by the Provincial/Federal Governments nor the learned counsel called for the same. It was Syed Iftikhar Hussain Gillani, learned Sr.ASC, who had filed this report, but in view of the statement so made by the learned counsel, it is abundantly clear that with effect from the date of its compilation, i.e. 31-3-2011, the Government being aware of its contents remained silent. This report contains horrifying facts. No one has claimed its confidentiality. To ascertain the willingness of the Federal or the Provincial Governments to act on this report, life history of one of the persons, namely, Ajmal Pahari, without prejudice to him, is reproduced hereinbelow:-- 757 TRAINING IN INDIAN TRAINING CAMP I along with .Zeeshan PIB Wala on the direction of Nadeem Nusrat (London Secretariat) went to Singapore in 1996. When we reached Singapore I informed Nadeem Nusrat and told my location. Nadeem Nusrat told me that I must wait and soon Jameel @ Jimmi will meet me with next schedule. We stayed for one week in hotel (name not remember) in Mustafa Market. Jameel @ Jimmy came to us from South Africa. Also Zeeshan didn't know about the programme. Jameel @ Jimmy take ours passport and photograph. Jameel @ (sic) arrange Indian Visa and send us via Singapore. Airline. Sunny. who was escaped from Karachi received us in India Delhi 758 Airport, and took us to the house where we stayed for 15 days. Then he took us to the training center in a jungle near to the Delhi OTHER TRAINING OF PARTY WORKERS IN INDIAN TRAINING CAMP When we reached at Indian Training Center we meet Noora (Shah Faisal Colony Wala), Zafar Tension Duffer Zone Wala), Raja (North Nazimabad Wala) Shakir Choota (Orangi Town) of MQM A group. MOTIVATION OF TRAINING IN INDIA 759 After completion of our training Sunny brought different book on Revolution and every. body had been motivated that if we didn't get our rights then we have to work under the Leadership of Altaf Hussain and make our separate State by unite Karachi and other major parts of Sindh. WEAPON TRAININGG THE SESSION DURING We wake up early in the morning for exercise and running. After that we used weapons in which we used AK 47, G-3, MP-5, LMG Rocket launcher, Grenade and other weapons. Our teacher also trained original fire of rocket launcher 760 last day of our training. RETURN PAKISTAN FROM INDIA TO Sunny arrange Indian guide who took us to Indian Punjab and one day at about 9'0 clock in evening we illegally crossed the Indian border) and entered into Pakistan area Shakar Garh with our Indian Guide. Then that Indian Guide took us to Lahore in Suzuki pick up and went back. Then we came to Karachi in train (Rail). MEETING WITH OTHER INDIAN TRAINEES IN KARACHI 761 I met Noora of Shah Faisal, Zafar Tension of Buffer Zone, Shakir Choota of Orangi Town in Karachi but I never saw Raju of North Nazimabad in Karachi." Above named person has given details of 53 persons murdered by him from 1986 to 2000. Surprisingly, he also admitted murder of Iqbal Raad Advocate, who was former Advocate General, Sindh. He has also given the details of murder of 58 persons after his release from Jail in 2005. This document is full of information, which he has disclosed. The question here is not the veracity or correctness of his statement. The question is: what did the Federal Government or the Provincial Government do on the basis of this information. Of course the truth of the statement has yet to be determined but it was 762 serious information of grave crimes in an alleged confession. Inaction on the statement, whatever its evidentiary value, means a certain backing and cooperation with criminal activity. However, on the basis of this report, no action has been taken against him as well as the organization with which he showed his affiliation. According to him, he had been getting training outside the country in India, etc. The remarks of the agencies of the Federal Government and others, reference of which the learned counsel for the Federation, are as follows:-"The subject is a hard core and high profile trained target killer affiliated with MQM (A) Group, who „has been involved in heinous crimes of murder, attempt to murder, target killing, several activities of creating law and order 763 situation extortion." abduction, kidnapping, Without commenting on its evidentiary value, at least when the Federal Government is relying upon it through its learned counsel, some weightage is to be given to it. We posed a question to the learned counsel that on the basis of above report, what action so far was taken by the Government, however, no explanation came forward. 126. It is to be noted that all criminals, howsoever influential, have to be dealt with across the board without any discrimination or compromising the position of the law on the subject. As we have already pointed out hereinabove that instant proceedings are not adversarial, therefore, one cannot discuss the 764 case of all those persons whose names, are mentioned in the report, but for the purpose of meeting argument of the learned counsel, reference to one of the same has been given with the observation that. no prejudice will be caused to concerned persons as perhaps he has to face trial in different cases. But perusal of the report qua the argument raised by the learned counsel showing the willingness of the Federal Government to take action in Karachi to control the law and order does not appeal to us. Thus, we are constrained to conclude that if an agency of the Federal Government possesses such overwhelming evidence, what could be the reasons for taking no action against concerned persons or organizations. 127. Learned counsel stated that every crime committed constituted violation of the 765 Fundamental Rights one way or the other. Bhatta, chanda, abduction, extra judicial killing, etc., whenever committed, constitute violation of the Fundamental Rights qua the individuals against whom such crimes are committed. According to him, the Fundamental Rights of individuals have been violated due to the rivalries between the individuals, there are clashes or crimes committed by individuals against individuals and groups of individuals are pitched against each other. Assuming argument of the learned counsel is correct, then what is the function of the 'Executive in respect of protecting Fundamental Rights when there is a violation. It is the duty of the Provincial Government as well as the Federal Government to protect and preserve the Constitution, which confers such rights upon individuals. When violation of the Fundamental Rights is admitted, ultimately 766 blame lies with the executive authorities, both Provincial and the Federal, for nonimplementation of their rights. In this behalf, detailed discussion has been made hereinabove. When the learned counsel for the Provincial Government, Mr. Hafeez Pirzada, ASC, calls upon this Court ""give a wake up call" to his client, and the learned 'counsel of the Federal Government concedes that a ""Call Attention Notice" can be issued, what more needs to be said: If they themselves admit that the Court's reprimand is need, how can the Governments concerned be defended? 128. Dr. Babar Awan, learned counsel stated that the Federation had no intention to invoke Articles 232 to 234 or Article 245 of the Constitution presently. Undoubtedly, it is for the Federation to take a decision, but if 767 any decision is taken, it would be strictly in accordance with the Constitution. This Court has time and again insisted that except adherence to the constitutional provisions in any situation prevailing in the country, no extra-constitutional steps have to be followed. In the neighbouring country, in case of failure of constitutional machinery in the States, Article 356 is attracted to deal with the situation. This Article is identical to Article 232 of our Constitution, therefore, application of these provisions of the Constitution is not alien to our system because on more than one occasion the Executive resorted to the same. Reference may be made to Farooq Ahmed Khan Leghari's case (supra) wherein it was held as under: "48. I am prompted to take above view 768 inter alia for the following reasons: (i) That the above view fits in with the above modern jurisprudential theory of proportionality. (ii) That as a rule of interpretation, the Courts should make efforts to preserve the Fundamental Rights of the citizens while construing the Constitutional provisions. This aspect, I intend to deal with hereinafter while touching upon the aforesaid second question in issue. (iii) That those who have taken oath to protect the Constitution, particularly, the Judges of the Supreme Court and the High Courts are bound by their oath 769 and duties to act so as to keep the provisions of the Constitution fully alive and operative, to preserve it in all respects, save from all defects or harm and to stand firm in defence of its provisions against attack of any kind as held by this Court in the case of Fazalul Quader Chaudhry (supra), in which the view taken is in line with the above Constitutional mandate. (iv) That even in spite of suspension of the enforcement of certain Fundamental Rights under clause (2) of Article 233 of the Constitution, Article 4 thereof remains fully operative which lays down that "To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and 770 of every other person for the time being within Pakistan. In particular-(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do:" 771 as held by Salahuddin Ahmad, J. of this Court in the case of Manzoor Ilahi (supra)." In view of the peculiar circumstances prevailing in Karachi, issuance of a large number of arms licences, both prohibited and non-prohibited, also seems to be one of the reasons for not bringing normalcy in Karachi and perhaps this is another reason that after every 2 to 4 weeks, some incident of torture, gang war, target killing, etc., takes place, which comes to an end after taking heavy toll of life. The Administration/Executive never realized the untold miseries of the sufferers including widows and orphans; therefore, the executive is bound to attend to this aspect of the case. 772 129. After the Court concluded the hearing on 16-9-2011 another very tragic incident took place in Karachi. A car bomb exploded outside the house of Chaudhry Aslam, SSP CID, in the Defence area of Karachi. Six Policemen and a mother along with her young son were martyred. Although this crime is apparently, and prima-facie of a different variety not related to the turf war or ethnic strife in Karachi, there is something to be learnt from it by the citizens of Karachi. The vehicle that exploded at the gate of the SP's House must have been loaded with explosives and prepared with a network of wires, fuses, projectiles such as ball bearings or shrapnels, and triggers. A sophisticated remote control device may also have been needed although it is yet to be determined conclusively whether it was a suicide attack or not. One thing is clear that 773 the vehicle was loaded with explosives and prepared for exploding in Karachi and nowhere else. Surely it was not brought, fully equipped and loaded all the way from the FATA area with explosives, projectiles, wires, fuses, triggers and remote control or suicide oriented equipment. It was indeed prepared in Karachi. All such vehicles and suicide bombers are finally prepared and equipped in our cities, not in FATA. Houses are previously rented for this purpose and rooms are taken in hotels. Whether the vehicle was prepared in a workshop or a house, the neighbours must have noticed some strange or at least dubious movements around and/or inside the workshop or house. The same applies to other terrorists and suicide attackers in Karachi, Lahore, Rawalpindi, Peshawar, Quetta and other cities of Pakistan. The vehicles and suicide bombers and assault teams are all assembled 774 and prepared in our own neighborhoods and Mohallas. These then go out and attack Bazaars, shrines establishments, killing innocent men, women and children. If the citizens were vigilant and responsive, such incidents could be prevented. They must report suspicious activity. That is the best, perhaps the only way to finish this menace. No doubt the fear of reporting to some extent is due to a lack of confidence in the administration and the Police but that confidence will have to be revived for the mutual benefit of all. It is for the Government to revive that confidence by not using the administration and the police for political or private ends. That is the responsibility of the Government of the Day. We have seen the beneficial and positive effects of a depoliticized administration with 775 the intervention of the Court. It is now the bounden duty of the government to continue with this status and not deflect the administration to its own benefit in preference to the citizen. The Police must also be cleansed of unmerited appointments. We intend to keep an eye on this process and will respond to any genuine complaint. 130. The morale of the police is low. Even honest Policemen are demoralized. They are caught between the devil and the deep blue sea. On the one hand, they may be punished for doing their duty if it runs counter to the political objectives of the party in power and on the other, they are afraid of being shot by the persons they have apprehended or their associates. They are conscious of the fact that so many policemen who took part in the operations of 1992 and 1996 have 776 disappeared or have been eliminated. It is necessary, therefore, for the Police to fully and impartially investigate and find out the circumstances of each such disappearance/elimination and provide a detailed report to this Court in respect thereof. 131. Thus, from the material produced before the Court and the information conveyed during hearing of the case by the ISI followed by intensified arguments advanced by the learned counsel appearing for the Provincial and Federal Governments, learned Attorney General, learned Advocate General, learned counsel for the Province of Sindh and learned counsel for the interveners, the Inspector General of Police, the DG Rangers, the Presidents of the Sindh High Court Bar Association and the Karachi 777 Bar Association as well as all others, we -Observe that violence in Karachi during the current year and in the past is not ethnic alone but it is also a turf war between different groups having economic, socio-politico interest to strengthen their position/aggrandizement, based on the phenomenon of tit for tat with political, moral and financial support or endorsement of the political parties, who are claiming their representation on behalf of public of Karachi including components and non-components of Provincial Government/ Executive; AND 778 Declare that recent violence in Karachi represents unimaginable brutalities, bloodshed, kidnapping and throwing away dead bodies and torsos in bags; as illustration, indicating toll of 306 lives in one month; detection of torture cells video of which has been produced; receiving bhatta to strengthen the ranks of one group against the other; grabbing land; drug mafia etc., destroying moveable and immovable properties of the citizens, establishes that the Fundamental Rights of the citizens enshrined in Articles 9, 14, 15, 18 and 24 of the Constitution have not. been protected/enforced by the Provincial Government/Executive authority and this failure has made the lives and properties of the citizens insecure, inasmuch as Federal Government/ Executive has also not protected Province of Sindh against 779 internal disturbance, thus the government of Province of Sindh, on this account, too, failed to carry out functions in accordance with the provisions of the Constitution [Article 148(3)]; AND Further observe that both the Provincial and Federal Governments/Executives have to find out solutions of the present scenario as per provisions of the Constitution: AND Further observe that to come out of 780 instant grave situation of law and order in Karachi, police force being principal law enforcing agency has to be depoliticized and strengthened so that they could, with full commitment, dedication, zeal and zest, perform its bounden duty, and unless there is a de-politicized police, the situation of law and order is likely to become more aggravated, no sooner the assistance of Rangers is withdrawn; AND We apprehend that any further failure to protect the lives and property of the citizens is likely to cause unprecedented disaster, therefore, all efforts should be made to avoid the same in the interest of 781 the nation and country, which is supreme as per the mandate of the Constitution and the law; AND Further observe that in respect of banning any political party including MQM, against whom all the interveners mostly had voiced complaints is not within domain of the Court at this stage as in terms of Article 17(2) of the Constitution every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan and it is the responsibility of the 782 Federal Government to act under Article 17 for action against any party violating this Article. The Court will only review such issue at any other appropriate stage or proceeding if then necessary to determine whether the actions of any party are directly or indirectly prejudicial to the sovereignty or integrity of Pakistan within the meaning of the Article. The Court will remain, in appropriate proceedings, the ultimate arbiter of this question but will not allow any government to avoid its duty under the law and the Constitution; AND Further observe that as per material brought before the Court, there are 783 criminals who have succeeded in making their ways in political parties notwithstanding whether they are components or non-components of government, and are getting political and financial support allegedly from such parties, therefore, the political parties should denounce their affiliation with them in the interest of the country and democratic set up and they should not allow them to use their names as militant outfits of the political parties. Failure to do so may entail consequences of a penal nature against the party or person responsible, whether in office or not; AND Further observe that to avoid political 784 polarization and to break the cycle of ethnic strife and turf war, boundaries Of administrative units like police stations, revenue estates, etc., ought to be altered so that the members of different communities may live together in peace and harmony, instead of allowing various groups to claim that particular areas belong to them and declaring certain areas as NO GO Areas under their fearful influence. Subsequent thereto, on similar considerations, in view of relevant laws, delimitation of different constituencies has also to be undertaken with the same object and purpose, particularly to make Karachi, which is the hub of economic and commercial activities and also the face of Pakistan, a peaceful city in the near future. The Election Commission of Pakistan may also initiate the process on its own in this 785 behalf; AND Further observe that equal chances should be provided to different communities of Karachi to participate in economic and commercial activities instead of confining the same to different political groups on the basis of parochial, racial, tribal, sectarian, partisan and provincial prejudices; AND Further observe that Karachi is full of arms and ammunition of prohibited and 786 non-prohibited bores including licensed and illicit, therefore, Karachi has to be cleansed from all kinds of weapons by adhering to the laws available on the subject, and if need be, by promulgating new legislation. All licensed arms genuinely required for security concerns and personal safety may be retained but .these must also be registered with NADRA. All other licenses, where such need cannot be shown, or where multiple licenses have been issued to the same individual (as distinct from security firms) if not justified, or which are used for unnecessary display at ceremonies or elsewhere for aerial firing should be cancelled after summary and expeditious proceedings in accordance with law; AND 787 Further observe that there is a need for a fresh comprehensive law to eliminate and punish land grabbers and encroachers. This is one of Karachi's greatest problems. The Court has already dealt with some cases Suo Motu and otherwise, and will continue to do so whenever necessary or appropriate. Sometimes this Court is the last hope of the citizens or a community which turns to it for redress when all other avenues are denied to them. But overall it is the duty of both Governments to formulate such law and initiate it in the appropriate assembly; and thereafter to implement it fully without showing any favour or immunity to any person whether a political favourite, ally or for any other personal or party consideration; 788 AND Further reiterate that monitoring of the criminal cases should take place in view of the observations made in the case of Sheikh Liaqat Hussain (supra). Besides, the appointments of the Presiding Officers of the Anti-Terrorism Courts should also not be delayed for any reason, as we experienced during the hearing of the case that those appointments were delayed for a period of nearly two years. However, under the direction issued by the Court, the Presiding Officers were appointed and we expect thins such delays shall not be allowed to occur in future; 789 AND We observe that since innocent citizens have lost their lives, number of which comes to 1310 during the current year. Similarly, a good number of citizens have been injured and/or lost their valuable property, both movable and immovable, therefore, provincial government/executive shall constitute a Commission to assess their losses and on its recommendation, compensation must be paid to the sufferers without partisan consideration, as early as possible; AND We direct that there must be no 'NO GO 790 AREAS' at all in Karachi. If any is found or credibly reported to the Court the Police and, if required by the Provincial Government, the Rangers shall take strong and decisive action to eliminate it. Moreover, if such an area is proved to exist to the satisfaction of the Court, we may require the IGP himself, and if necessary the DG Rangers also, to personally lead the operation into such areas. The Police and Rangers are therefore, expected to conduct the ongoing operation across the board without showing any favour to any one and without being influenced from any quarter, be it political or otherwise. In case they are asked to obey any illegal orders, or to show leniency to any criminal, it will be their duty to bring it 791 to the notice of the Court and appropriate orders will be passed accordingly; AND Further direct that an independent and a depoliticized investigation agency be deputed to conduct investigation of cases fairly, honestly and without being influenced in any manner. Similarly, the prosecution agency comprising competent prosecutors and the Provincial .Government/Executive must provide protection to the witnesses so that they may depose against the perpetrators of crimes without any fear, enabling the courts to decide cases against them in accordance with law. The prosecutors, particularly for the Anti-Terrorism 792 Courts should be appointed in a highly transparent manner according to the Constitution and the law. Appointments of prosecutors are required to be undertaken without any political whims and considerations; AND Further direct that DG NADRA and the IGP will set up a special joint cell with specialized officials and experts along with sufficient manpower to establish several teams to visit on the spot and identify illegal foreigners so that they may be dealt with strictly in accordance with law after a proper hearing and opportunity to present proof of their citizenship. They should attempt to 793 conclude this exercise preferably in one year; AND Further direct that the IGP shall collect the record and facts about the disappearance or elimination of all police and other officials who took part in the Karachi operations of 1992 and 1996 or were witnesses in ethnic or related crimes and present a report to the Court within the next one month also showing whether their families were compensated or not; AND 794 Further direct that the Provincial Government shall place on record of the Court copies of all judicial inquiries instituted in the matter of law and order in Karachi since 1985. These shall be retained for perusal and for any necessary action or appraisal of the situation at any time in the future; AND Further observe that the Provincial Government/Executive shall 'ensure smooth running of economic and commercial activities and shall take necessary steps that the protection is provided against uncalled for and illegal shutter down and strikes to the businessmen. During arguments, it was 795 also brought to our notice that due to illegal strikes and shutter down calls, the normal life of citizens of Karachi is paralyzed, and allegedly it causes loss of billions of rupees in a day, therefore, it is observed that the Government and the political parties shall evolve a respectable way out to avoid such a situation in future; AND Finally, it is directed that a Committee be constituted by the Provincial Government/Executive, headed by the Chief Justice of Sindh High Court, who shall be assisted by the Chief Secretary, the heads of the security agencies i.e. para-military organizations and I.G. 796 Police, to supervise and ensure that law enforcement agencies take action indiscriminately, across the board against the perpetrators involved in causing disturbances in Karachi. The Chief Justice shall convene the meeting at least once in a month to review the implementation of this judgment and copy of the proceedings shall be transmitted to the Registrar of this Court for our perusal and passing appropriate orders at a later stage, if need be. 132. In view of above declarations/observations, instant Suo Motu proceedings as well as Constitution Petition No. 61 of 2011 under Article 184(3) stand disposed of while parting with the saying of James Bryce that "Our country is not the only thing to which we owe our allegiance. 797 It is also owed to justice and to humanity. Patriotism consists not in waving the flag, but in striving that our country shall be righteous as well as strong." M.A.K./S-53/S accordingl Order 798 Judgments of Federal Shariat Court of Pakistan on Human Rights in Islam P L D 2011 Federal Shariat Court 1 Before Agha Rafiq Ahmed Khan, C.J., Syed Afzal Haider and Shahzado Shaikh, JJ Mian ABDUR RAZZAQ AAMIR and others--Petitioners Versus FEDERAL GOVERNMENT OF ISLAMIC 799 REPUBLIC OF PAKISTAN and others--Respondents Shariat Petitions Nos.1/I, 3/I of 2007 and 1/I of 2010.decided on 22nd December, 2010. (a) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Nature---Exclusive jurisdiction conferred by constitutional provisions can neither be curtailed nor regulated by subordinate legislation. 800 (b) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---"Hudood"--Meaning and scope---Determination of meaning and scope of the term "Hudood" as well as the exercise to identify the categories of offences and civil matters regarding the life of Muslims which fall in the ambit of "Hudood" is the sole preserve of Federal Shariat Court. (c) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal 801 Sharait Court---Scope---All the matters connected with or the steps leading up to the commission of offences covered by "Hudood" ipso facto fall within the jurisdiction of the Federal Shariat Court. (d) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Nature and Scope---Federal Shariat Court, as mandated by Art.203-D of the Constitution, is the only forum to examine any law or provision of law or any custom or usage having the force of law on the touchstone of Injunctions of Islam. 802 (e) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court to adjudicate upon bail matters in cases covered by "Hudood"Scope---Adjudication upon bail matters in cases covered by "Hudood" is certainly ancillary to the trial, appellate and revisional jurisdiction and hence cognizable by Federal Shariat Court. (f) Constitution of Pakistan--- ----Art. 203-DD---Re visional and other 803 jurisdiction of Federal Shariat Court--Analysis of Art.203-DD of the Constitution--Exclusive jurisdiction of Federal Shariat Court, mandated by the Constitution, revolves around the term "the enforcement of Hudood". An analysis of Article 203-DD indicates that: (i) the Federal Shariat Court has the exclusive jurisdiction to call for and examine the record of; (ii) any case decided by any criminal court under any law relating to the 804 enforcement of Hudood; (iii) for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed ' by and as to the regularity of any proceedings of such Court; (iv) the order under examination by the Federal Shariat Court or challenged before it may be in the nature of grant or refusal of bail by the trial Court; (v) and the Court may for that purpose 805 call for the record of the case; (vi) while so doing the Court may suspend execution of the sentence; (vii) direct release on bail or on his own bond if the accused is in confinement pending examination of record; and further; (viii) the Federal Shariat Court may, as a result of examination of record pass such order as it may deem fit; 806 (ix) and may even enhance the sentence subject of course, to notice. It is, therefore, clear that the exclusive jurisdiction of the Federal Shariat Court, mandated by the Constitution, revolves around the term "the enforcement of Hudood." (g) Constitution of Pakistan--- ----Art. 203-DD--- "Hudood "---Connotatin and significance. 807 Ayah 187 Surah 2 (al-Baqrah) Holy Quran; Ayah 229 Surah 2 (al-Baqrah) Holy Quran; Ayah 230 Surah 2 (al-Baqrah) Holy Quran; Ayaat 1 through 12, 13 and 14 Surah 4 (An Nisa) of Holy Quran; Ayat 97 Surah 9 (Al Taubah) of Holy Quran; Ayah 112 Surah 9 (At-Taubah) of Holy Quran; Ayah 4 Surah 58 (Al-Mujadalah) of Holy Quran; Ayah 1 Surah 65 (Al-Talaq) of Holy Quran; Ayah 103 Surah 10, Younas of Holy Quran; Ayah 47 Surah 30, Ar-Rum of Holy Quran; Ayah 182, Surah, Al-Aaraf; Ayah 42 Surah 8, Al-Infaal of Holy Quran; Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No.769; Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith Nos.779, 812, 831, 832, 833, 1744, 1745, 1746; Traditions No.969 and 970 Sunan Abu Daud; 808 Tradition No.1976 Vol. 3, Sunan Abu Daud; Sahih Muslim Jild II, Hadith No.1600; Hadith No.269 in Kitab Salat ul Musafareen; Ayat 112, Sura 3, Ale-Imran of Holy Quran; Ayat 15 Surah 6, Al-Anam; Ayat 32 Surah 17, Bani Israeel and Ayah 43, Surah 4, An Nisa ref. (h) Constitution of Pakistan--- ----Art. 203-DD---Words "relating to the enforcement of Hudood" as used in Art.203-DD of the Constitution---Meaning and connotation. The words used in Article 203-DD of the 809 Constitution are: "relating to the enforcement of Hudood." Like the words "in respect of" or "with reference to" employed in some statutes, these words have a wider meaning and connotation. The words "relating to" includes all those matters which pertain to the realm of preparation, intention, attempt and all conceivable steps taken towards the commission of an offence. Such steps and actions on fulfilment, have the potential of being covered by the penalty of Hudood if the requisite evidence, prescribed for proof of Hadd, is made available. Short of that proof the action complained of becomes punishable as tazir for an offence which is of the specie of Hadd. Tazir punishment- is 810 in lieu of Hadd and is not the consequence of a separate category of offence. (i) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Term "enforcement of Hadd" occurring in Art.203-DD of the Constitution---Scope---Zina---Rape--Whether it is a case of consensual extramarital sexual activity, or incestuous adultery or any related pursuit ancillary and akin to or leading upon extra-marital sexual activity, the investigation, enquiry or trial of such a matter is covered within the scope of the term "enforcement of Hadd" and 811 hence in the exclusive jurisdiction of Federal Shariat Court---Principles. (j) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Jurisdiction or power conferred by constitutional apparatus can be taken away only through an express constitutional amendment and nothing short of that---Ordinary statute cannot take away powers of a superior court conferred by Constitution---Such a statute is ex facie discriminatory--Principles. 812 A legal instrument which bars a court from taking cognizance of offences or hearing appeals and revisions not only affects the jurisdiction of the court but seriously jeopardizes the fundamental right of an aggrieved person to have access and recourse to speedy justice. Jurisdiction conferred by a constitutional provision cannot be erased by ordinary piece of legislation. It is an accepted principle of law that jurisdiction of superior court cannot be taken away except by express words. In particular a jurisdiction or power conferred by constitutional apparatus can be taken away only through an express constitutional amendment and nothing short of that. An 813 ordinary statute cannot take away powers of a superior court conferred by Constitution. Such a statute is ex-facie discriminatory. (k) Constitution of Pakistan--- ----Art. 203-DD---"Hudood"---Scope and extent---Term "Hudood" on the civil side includes marital life, the mandatory bridal gift commonly known in Pakistan as Haq-eMehr, inheritance, guardianship of person and property of minors and persons with defective legal capacity, marriages (in particular polygamy), divorce including Khula and Ziher. 814 (l) Constitution of Pakistan--- ----Art. 203-DD---Jurisdiction of Federal Shariat Court---Scope---Term "Hudood"--Scope---Those offences, whose punishment was either prescribed or left undetermined but it relates to acts forbidden or made cognizable by Holy Quran, Sunnah, Consensus or by subsequent legislative instruments including all those acts which according to the Statute Book of Pakistan are akin, auxiliary, analogous or supplementary to or germane with "Hudood" offences including preparation or abetment or attempt to commit such 815 offences, would, without fail, fall within the meaning and scope of the term "Hudood"Proceeding arising out of a private complaint, crime report registered with police as F.I.R., information laid before a Magistrate by a person other than a police officer or upon its motion by a judicial officer or judicial proceedings arising out of an interim order or final verdict of acquittal or conviction in relation to an offence covered by the term "Hudood", whether in the form of an appeal, revision or reference, would fall within the jurisdiction of Federal Shariat Court---Legislation in Muslim societies in the uncovered field has been made permissible as is evident from the principle Hablin Min un Naas. enunciated in 816 Ayat 112 of Sura 3 Ale Imran---Word "Habal" does not only mean rope but it also means command and mandate---State is therefore competent to promulgate laws to implement and enforce Injunctions of Islam. Ayat 112 of Surah 3 Ale-Imram ref. (m) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)--- ----Ss. 11 & 28-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.3---Offence of Qazf (Enforcement 817 of Hadd) Ordinance (VIII of 1979), S.19--Constitution of Pakistan, Arts.203-DD, 203D & 203-A---Repugnancy to the Injunctions of Islam and the Constitution---Introduction of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is an unwarranted inroad in the legislative domain and consequently an unlawful interference to Hudood---Provisions of Ss.11 & 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is repugnant to the Constitution as well as Injunctions of Islam---Section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and S.19 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 shall be deemed not to have been 818 repealed and are as valid and essential part of the two Hudood Laws---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. Section 11 of Woman Protection Act, 2006 has omitted section 3 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Section 3 before repeal read as follows:-819 "Ordinance to override other Laws.---The provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force." Section 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 has omitted the similar text contained in section 19 of Offence of Qazf (Enforcement of Hadd) Ordinance, 1979. Both the omitted sections had given overriding effect to the provisions of Ordinances VII and VIII of 1979. These were non obstante clauses which had created exceptions. This protective cover to the Hudood Laws of 820 1979 was further strengthened by Chapter 3A, Part VII of the Constitution which had introduced Article 203-A in the Constitution from 26th May, 1980. Thereafter Article 203-DD in the present form, was incorporated in the Constitution in the year 1982. Section 3 and section 19 of the said two Hadood Ordinances thus acquired constitutional protection which could not have been repealed/omitted or even amended by Act VI of 2006. Moreover the effect of sections 11 and 28 of the Act is to curtail the constitutional jurisdiction guaranteed in Article 203-DD of the Constitution and this step cannot be legally undertaken through ordinary legislation. The effect of constitutional protection can 821 be altered only through constitutional amendment and not otherwise. As a result thereof the introduction of sections 11 and 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is an unwarranted inroad in the legislative domain and consequently an unlawful interference in the enforcement of "Hudood". Hence it is repugnant to the Constitution as well as Injunctions of Islam. Section 3 of Ordinance VII of 1979 and section 19 of Ordinance VIII of 1979 shall be deemed not to have been repealed and are as valid and essential part of the two Hudood laws. The declaration relating to Protection of 822 Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006); The Control of Narcotic Substances Act, 1997 as well as Anti-Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with this declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011. The other items of the Declaration become operative forthwith. (n) Constitution of Pakistan--- 823 ----Arts. 203-DD, 203-A & 203-D--Jurisdiction of Federal Shariat Court in bail matters---Bar of jurisdiction---Power exercised by Federal Shariat Court under the Constitution overrides all laws---Article 203-A of the Constitution states that provisions of Chap.3A of Part VII of the Constitution shall have effect notwithstanding anything even in the Constitution---Matter of bail is related with the offence---Bail is applied for by an accused only when an offence is alleged to have been committed---If an offence is covered by Hudood the trial takes place under the law relating to Hudood---Appeal or revision in such proceedings is therefore within the cognizance of Federal Shariat 824 Court---Order of grant or refusal to grant bail in such offence is therefore part of proceedings of trial of "Hudood" cases and hence cognizable by Federal Shariat Court alone---Order on an application for grant or refusal of bail by Trial Court in all categories of offences within the ambit of "Hudood" is covered by the term proceedings, as employed in Art.203-DD of the Constitution and hence within the scope of the terms "any case", "any criminal court" and "under any law" and therefore can be impugned only before the Federal Shariat Court which has the exclusive jurisdiction in all sorts of matters related with enforcement of "Hudood"---No other court, including a High Court, will, in future, entertain proceeding 825 relating to bail in offences covered by the term "Hudood"---Principles. Muhammad Rafiq and others v. the State PLD 1980 Lah. 708; Zahoor Elahi v. State PLD 1977 SC 273; Malik Ghulam Jilani v. Government of Pakistan PLD 1967 and Government of Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 ref. (o) Constitution of Pakistan--- ----Art. 203-G---Bar of jurisdiction---Ouster of jurisdiction particularly of a superior 826 court has to be stated in very clear terms--Jurisdiction vesting in a court by virtue of constitutional provisions undoubtedly stands at a higher level and cannot be curtailed by routine legislation--Constitutional bar mandated by Art.203-G of the Constitution needs careful consideration which mandates that "no court or tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the powers or jurisdiction of the court". (p) Control of Narcotic Substances Act (XXV of 1997)--827 ----Ss. 9, 48, 49 & 51---Anti-Terrorism Act (XXVII of 1997), Ss.25 & 21-D---Constitution of Pakistan, Art.203-DD---Jurisdiction of Federal Shariat Court charged with "Hudood" offences and grant or refusal of bail---Scope---Offences relating to narcotic drugs are within the purview of "Hudood" and consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to "Hudood" is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter---Federal 828 Shariat Court directed . that text of Ss.48 & 49 of Control of Narcotic Substances Act, 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of "Hudood"-No legal instrument, other than constitutional amendment, can limit or ignore the exclusive jurisdiction of Federal Shariat Court mandated under Art.203-DD of the Constitution---Similarly if an offence of the nature of "Hudood" is tried under Anti-Terrorism Act, 1997 the appeal in all such cases under S.25 of the said Act, or for that matter bail under S.21-D of the said Act shall lie before the Federal Shariat Court and not a High Court---Federal Shariat Court directed that consequently two steps will 829 have to be taken to set the matter right that words "Federal Shariat" shall be substituted for the words "High Court" occurring in Ss.48(i) and 49(i) of Control of Narcotic Substances Act, 1997 and that a rider will have to be put in S.25 of the Anti-Terrorism Act, 1997 to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court---Any order, interim or final, passed by a Court constituted under AntiTerrorism Act, 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court--Wordings of S.25 Anti-Terrorism Act, 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except "Hudood" 830 matters---Present findings shall become operative after the specified period---Ss.48 & 49 of Control of Narcotic Substances Act, 1997 and S.25 of Anti-Terrorism Act, 1997 are violative of Art.203-DD of the Constitution to the extent that the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with "Hudood" offences---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with the present declaration 831 whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. (q) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)--- ----Ss. 25 & 28---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), S.14(3)(4)---Dissolution of Muslim Marriages Act (VIII of 1939), S.2(vii)(a)--Constitution of Pakistan, Art.203-DD--Repugnancy to Injunctions of Islam---Lian--Section 25 of the Protection of Women (Criminal Laws Amendments) Act, 2006 has 832 repealed subsections (3) and (4) of section 14, Qazf (Enforcement of Hadd) Ordinance, 1979 and S.28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 adds clause (vii)(a) Lian in S.2 of the Dissolution of Muslim Marriages Act, 1939---Both the interpolations have altered the legal composition of the Institution of Lian which developed on the basis of express injunctions of Holy Quran---Section 14 of Qazf (Enforcement of Hadd) Ordinance, 1979 had in fact given legislative effect to an Injunction of Islam---Effect of repealing subsections (3) and (4) of S.14 of Qazf (Enforcement of Hadd) Ordinance, 1979 is to stifle the operation of an Injunction of Holy Quran relating to the enforcement of 833 "Hudood" which is not only repugnant to the Injunctions contained in Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur but is also a clear violation of Art.203-DD of the Constitution---Similarly section 28 of Protection of Women (Criminal Laws Amendment) Act, 2006 becomes repugnant to the Quranic Injunctions---Said repeal effected by the Act, is in utter violation of the Injunctions of Islam---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and 834 present judgment of the Federal Shariat Court will be operative as on 22-6-2011. Ayaat 4 through 9 of Surah 24 An-Nur and Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur ref. (r) Constitution of Pakistan--- ----Arts. 203-DD & 203-D---Classification of punishments and offences covered by `Hudood'---Term "enforcement of Hudood" as used in Art.203-DD of the Constitution--Analysis---Constitution has created only one forum under the designation of Federal 835 Shariat Court, which has the exclusive jurisdiction (Art.203-D) to examine the question whether any. law is repugnant to the Injunctions of Islam, it is, therefore the domain of the Federal Shariat Court to examine the question of repugnancy of any law to the Injunctions of Islam---Definition of term "Hudood", as may be settled in the light of Injunctions of Islam by the Federal Shariat Court will, therefore, determine the meaning of the term as well as the extent of its jurisdiction---Term "Hadd" means a punishment "ordained by Holy Quran or Sunnah "---Principles. Ayaat 178, 179, 194, Surah 2 (Al-Baqarah); Ayah 45 Surah 5 (Al-Maidah); Ayah 24 Surah 836 4, An-Nisa of Holy Quran and Asma Jilani v. Government of Punjab PLD 1972 SC 139 ref. (s) Constitution of Pakistan--- ----Arts. 203-D & 227---Powers, jurisdiction and functions of the Federal Shariat Court--Scope---Term "Hudood" has to be defined in the light of Injunctions of Holy Quran and the Sunnah. Chapter 3-A of Part VIII of the Constitution, dealing with the Federal Shariat Court, contemplates very vividly that the Federal Shariat Court, shall be guided in its 837 decisions and findings by the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Likewise, Article 227 (1) of the Constitution prescribes that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah and further that no law in future shall be enacted which is repugnant to these injunctions. The ultimate role of examining the vires of an impugned legal instrument on the touchstone of Injunctions of Islam is therefore the exclusive preserve of the Federal Shariat Court as mandated by Article 203-D of the Constitution. The Parliament is debarred from enacting a law which is repugnant to the Injunctions of 838 Islam. This reality amounts to a declaration in loud terms that the statute book of Pakistan has to be in conformity with the Injunctions of Islam and consequently the term "Hudood" has, in fact, to be defined in the light of Injunctions as laid down in the Holy Quran and the Sunnah. (t) Constitution of Pakistan--- ----Art. 203-DD---Expression "Hudood"Meaning and Scope---"Hudood", in the field of law, science, philosophy etc. assumes a wider meaning than the actual dictionary meanings and includes the term `Tazir'--Offences covered by the term Hudood 839 enumerated. Tashree ul Janai al Islam Vl. 1 at p.119; Ayah 90 Surah 16 of Holy Quran and Dr. Muhammad Aslam Khaki v. Federation of Pakistan PLD 2010 FSC 191 ref. (u) Constitution of Pakistan--- ----Art. 203-DD & 203-G---Enforcement of Hudood---Revisional and other jurisdiction of Federal Shariat Court---Scope---All offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court---All matters connected with Hudood 840 would, therefore, automatically be included in the jurisdiction of Federal Shariat Court--Powers conferred by the Constitution upon Federal Shariat Court enumerated. Article 203-G read with Article 203-DD(2) of the Constitution establishes beyond doubt that all offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court. All matters connected with Hudood would therefore automatically be included in the jurisdiction of Federal Shariat Court. This is precisely what is meant by "enforcement of Hudood" as prescribed in Article 203-DD of the Constitution. 841 It is indeed true that all judicial powers are lodged with the judiciary and wide powers have undoubtedly been conferred by the Constitution upon the Federal Shariat Court which include:- (a) To administer punitive and remedial justice to and between parties subject to Constitution and law; (b) To exercise exclusive jurisdiction in matters relating to examination of laws on the touchstone of Injunctions of Islam and in cases relating to Hudood 842 laws; (c) To exercise the special jurisdiction without further legislative sanction; (d) To define the scope and extent of its jurisdiction within the parameters identified in Chapter 3-A of Part VII of the Constitution; (e) To determine the meaning and scope of the undefined terms used in Chapter 3-A of Part VII of the Constitution; 843 (f) To exercise powers of a civil court in respect of certain matters; (g) Authority to conduct its proceedings and regulate its procedure in all respects as it deems fit; (h) To punish its own contempt; (i)To make rules for carrying out the purposes of Chapter 3-A of Part VII of the Constitution; (j) Exercising such other jurisdiction as 844 may be conferred on it by or under any law; (k) To call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood; and (l)Exclusive authority and the jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah. 845 (v) Constitution of Pakistan--- ----Arts. 203-DD & 227---Offences falling in the ambit of "Hudood"-Jurisdiction of Federal Shariat Court---Scope---Terminology employed in Art.203-DD of the Constitution "any case"; "any Criminal Court" and "under any law "---Scope. It is necessary for a Judge to know the meaning and the scope of the term law because he is under oath to administer law. He should be clear in his mind that the law under consideration was made by an authority legally competent to makes laws. The Federal Shariat Court has the additional 846 but onerous constitutional responsibility to examine whether the impugned law or provision of law is in accordance with Injunctions of Islam. This authority of the Federal Shariat Court is necessary extension of the mandate given in Article 227 of the Constitution. The notion of legitimacy and efficacy therefore becomes relevant because not only the law making authority should be legally competent but the law should be capable of being enforced according to the Injunctions of Islam and the principles established by the Constitution. The ouster of jurisdiction of Federal Shariat Court can be accomplished by only one 847 jurisdictional fact: that the act complained of is not covered by the mischief of an offence covered by the term "Hudood". If however the impugned transgression falls in the ambit of "Hudood" then the jurisdiction of Federal Shariat Court cannot be ousted. This element is the key to the question of jurisdiction. It is immaterial whether the offence complained of is mentioned in the four Hudood laws of 1979 or any other law. The issue stands settled by the terminology employed in Article 203-DD any case; any criminal court and under any law. The term any case is relatable to all such offences which might be covered in the definition of "Hudood". All actions which are ancillary or auxiliary or related to or germane to or 848 connected with offences falling in the ambit of "Hudood" are also included in the term any case related with "Hudood". Any case also includes all those cases in which one of the alleged offences is covered by the definition of the term "Hudood". When a matter has been dealt with by the Constitution and it is not subject to any statute then no statute can control or curtail the power conferred upon a superior court by the Constitution. The State v. Khalid Mahmood PLD 1996 SC 42 ref. (w) Constitution of Pakistan--849 ----Art. 203-DD---Exact nature and scope of Art.203-DD of the Constitution---Nature of Art.203-DD is self-executing and is not at all different from the nature of Arts.184 through 190 as well 199,101 and 203 of the Constitution---Article 203-DD confers power upon the Federal Shariat Court to exercise jurisdiction in all cases, pending or decided by any criminal court under any law in relation to the enforcement of "Hudood"Exclusive powers of judicial nature in relation to matters pertaining to "Hudood", a particular branch of administration of Criminal Justice, have been conferred upon the Federal Shariat Court to (i) call for and examine the record of (ii) any case (iii) 850 decided by any criminal court (iv) under any law relating to enforcement of Hudood--Principles. Hakim Khan v. Government of Pakistan PLD 1992 SC 595 ref. (x) Constitution of Pakistan--- ----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court---Term `law' for the purpose of Art.203-D--Connotation. 851 Kundah Bibi and 4 others v. Walayat Hussain, Controller of Estate Duty, Government of Pakistan and another PLD 1971 Lah. 360; Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Dudlay Corporation (1882) 8 QBD 86 (93, 94) by Brett, L.J. ref. (y) Constitution of Pakistan--- ----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court--Contention that revisional power and not appellate power was conferred upon the Federal Shariat Court under Art.203-DD of 852 the Constitution was erroneous---Revisional jurisdiction conferred upon Federal Shariat Court, at constitutional plane, not only encompass at one place the powers that are exercised by an appellate court under different sections of the Criminal Procedure Code but at the same time, in exercise of the same jurisdiction, the Federal Shariat Court in its capacity as the revisional court, has the additional potential of enhancing any sentence if, after examination of the record of any case decided by any criminal court, it is convinced that punishment awarded was scanty; it is for this reason that Art.203-DD of the Constitution conferred revisional jurisdiction alone on the Federal Shariat Court because powers 853 of a revisional court are much wider than that of the powers of an appellate court--Power of Federal Shariat Court to order retrial remains intact under the constitutional provisions because "the Court may pass such orders as it deems fit. "; however in appropriate cases, in order to save time, expense, and harassment the Federal Shariat Court may straightaway convict the accused, if after hearing him, it finds that there is sufficient evidence on record to do so. Muhammad Babar v. Muhammad Akram and 3 others PLD 1987 FSC 38 ref. 854 (z) Constitution of Pakistan--- ----Art. 203-DD---Revisional jurisdiction of Federal Shariat Court---Scope---"Revision"--Scope in legal parlance---Article 203-DD of the Constitution does not confer appellate jurisdiction simpliciter upon the Federal Shariat Court; it confers revisional and other jurisdiction---Powers vesting in the Federal Shariat Court under Art. 203-DD of the Constitution with regard to any case decided by any criminal court under any law relating to the enforcement of "Hudood" are all inclusive in nature---Statute may or may not confer a right of appeal but the Constitution has provided a permanent remedy for every aggrieved person to 855 invoke revisional jurisdiction of the Federal Shariat Court in appropriate proceedings--Revision is a wider jurisdiction; this is what the head-note of Art.203-DD indicates--Term Revision includes re-examination, reassessment, careful reading over for correction and improvement---Federal Shariat Court has also to see whether justice, as tempered by kindness, has been done by the Trial Court---Such power of Adl with Ihsan is not prescribed upon any appellate court in the Code of Criminal Procedure---Wide powers have been conferred upon the Federal Shariat Court by way of revisional jurisdiction to do complete justice according to relevant Injunctions of Islam in cases decided by any 856 criminal court under any law relating to the enforcement of Hudood. Ayat No.90 Surah 16, An-Nahl ref. (aa) Constitution of Pakistan--- ----Arts. 203-DD & 203-D---Revisional jurisdiction of Federal Shariat Court--Significance elaborated. The term revision is wider in meaning and scope than the term "appeal". The term "revision" also includes revision of statutes 857 which in substance is the re-examination of laws. It is different from an amendment. It implies re-examination and restatement of law. Legislators are often authorized by constitutional provisions to revise and to restate all the statute laws of a general and permanent nature of the State up to a certain date, in corrected and improved form. This legislative function has been conferred on the Federal Shariat Court to undertake examination of laws on the touchstone of the Injunctions of Islam. This is precisely the jurisdiction of the Federal Shariat Court under Article 203-D of the Constitution. The Court at the same time enjoys the jurisdiction under Article 203-D to examine any law on its own motion. 858 There could be cases when the court is called upon to exercise its jurisdiction under both the Articles 203-D and 203-DD in one and the same case. This special type of jurisdiction is enjoyed only by the Federal Shariat Court in the judicial hierarchy of Pakistan. The absence of the word "appeal" does not in any way limit the widest possible jurisdiction of the Federal Shariat Court conferred upon it by virtue of Article 203DD of the Constitution which enables it to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood. In fact very wide powers have been conferred 859 upon the court by virtue of just one Article of the Constitution without enumerating twenty-eight sections in quick succession as has been done .in Chapter XXXI of Part VII of the Code of Criminal Procedure. The Federal Shariat Court would, in view of this constitutional provision, exercise widest possible jurisdiction in cases decided by any criminal court under any law relating to an offence covered by the term Hudood. All the recognized incidents of the term "appeal" have been included in the powers conferred upon Federal Shariat Court by Article 203-DD of the Constitution under the title Revision. The Constitution does not concede such broad based revisional powers to the High Courts. The revisional 860 jurisdiction of a High Court is certainly dependent upon an enabling provision in the Code of Criminal Procedure which can be omitted, altered, substituted, or even restricted by ordinary legislative measure. The revisional jurisdiction conferred upon Federal Shariat Court by Article 203-DD of the Constitution is not a mere power but is in essence a sacrosanct duty because the said constitutional provision speaks in terms of enforcement of "Hudood". It is for the purposes of correcting miscarriage of justice, doing substantial justice, removing any illegality or perversity 861 that the Federal Shariat Court has been clothed with vast powers under the title of Revisional Jurisdiction. One of the fundamental object of this jurisdiction is that the Federal Shariat Court would watch carefully that no Injunction of Islam relating' to the enforcement of "Hudood" is violated in any case by virtue of any order or decision by any criminal court exercising power under any law. Existence of law is not sufficient. It is just one aspect of administration of justice. The emphasis of Holy Quran is- in fact upon enforcing the law. Constitution, in particular, has laid emphasis on "enforcement of Hudood". Chapter 3A of 862 Part VII of the Constitution is the solitary instance where the Constitution speaks in terms of enforcement. This element of enforcement only in relation to Hudood, according to the Constitution, is the exclusive domain of Federal Shariat Court through revisional jurisdiction. The jurisdiction of the Federal Shariat Court under Article 203-DD not only refers to the power to examine the record of any case pending in a criminal court but also enables it to examine the propriety of any decision or order passed by any criminal court under any law relating to "Enforcement of Hudood". The word any means all, each, and every case pending or decided and 863 each law under which the criminal Court takes cognizance of a matter. The term "any case" used in Article 203-DD is therefore very wide and includes any matter which is within the initial cognizance of the criminal trial court. Any case therefore means any matter under any law connected with the "Enforcement of Hudood". (bb) Constitution of Pakistan--- ----Art. 203-DD---Terms "any case", "any criminal court" and "any law" used in Art.203-DD of the Constitution--Connotation and Scope. 864 The word "any" has been used four times in Article 203-DD of the Constitution. In clause (1) the words are: "of any case," "any criminal court" and "under any law" while in clause (2) the words used are: "in any case". The word 'any" as employed in Article 203DD has been expressed without any qualification. The word any in the context in Article 203-DD would mean: any person, any court or any law under which a trial or proceedings as regards offences relating to Hudood are being held or have been concluded. The word any is wide enough to include every case, covered by the term 865 Hudood or related to Hudood and would also cover situations when any case is sought to be transferred in the manner and circumstances visualized by sections 526 and 528 of the Code of Criminal Procedure. The three terms i.e. "any case", "any criminal court" and "any law" as used in Article 203-DD not only tend to enlarge the amplitude of the, term Hudood but lay emphasis on the fact that all type of proceedings related to offences covered by the meaning and scope of the term Hudood would remain the exclusive preserve of the Federal Shariat Court. There is no earthly reason to exclude any one matter connected with the proceedings under Hudood laws from the jurisdiction of the 866 Federal Shariat Court. Word "any" as used in Article 203 DD is a word of "expansion indicative of width and amplitude sufficient to bring within the scope and ambit of the words it governed, all that could possibly be included in them. Term criminal court used in Article 203-DD is not restrictive in the sense as mentioned in section 6 of the Code of Criminal Procedure. It means any court exercising criminal jurisdiction under any law of the land relating to an offence in the domain of Hudood. The term criminal court extends to every category of Courts, Tribunals or Authorities competent under any law of the land to try and decide cases in which the 867 offence complained of pertains to Hudood. Inamur Rehman v. Federation of Pakistan 1992 SCMR 563; Ch. Zahoor Elahi MNA v. The State PLD 1977 SC 273; M. Amjad v. Commissioner of Income Tax and 2 others 1992 PTD 513; N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281 and Commissioner of Income Tax v. Media Network PLD 2006 SC 787 ref: (cc) Constitution of Pakistan--- ----Art. 203-DD---Extent and scope of the powers bestowed upon the Federal Shariat 868 Court by Art. 203-DD of the Constitution summarized. Following is the summary of the extent and scope of the powers bestowed upon the Federal Shariat Court by Article 203-DD of the Constitution. The under mentioned issues appear to have been contemplated: (i) The jurisdiction of the court in respect of enforcement of Hudood; (ii) The responsibility of the court to satisfy itself as to the correctness, legality and propriety of any finding, 869 sentence or order recorded or passed by any court; (iii) The power of the court to decide the regularity or otherwise of any proceedings related to enforcement of Hudood; (iv) The power of the court to direct suspension of any sentence awarded in cases relating to Hudood; (v) Power of the court to release any accused on bail; 870 (vi) Power of the court to pass any order it may deem fit in relation to any proceeding related to the enforcement of Hudood; (vii) Power of the court to enhance any sentence passed by any court in relation to Hudood; and (viii) Any other jurisdiction conferred on the court by or under any law. A cursory glance over the contents of Article 203-DD clearly establishes that the framers of Chapter 3A of Part VII of the 871 Constitution perceived a much broader role for the Federal Shariat Court in relation to Hudood. It was an all-inclusive role which is certainly wider than mere customary appellate jurisdiction. The Constitution has made it certain that the revisional jurisdiction conferred upon the Federal Shariat Court by it is taken out of the scope of ordinary legislative functions of Majlis-e-Shoora. The Constitution conceded not only wide powers to the Federal Shariat Court but it proceeded to protect these powers from the vicissitude of legislative procedure prescribed under Article 70 of the Constitution. Additionally the Constitution 872 proclaimed that Federal Shariat Court shall have such other jurisdiction as may be conferred upon it by or under any law. The consequence of this provision of the Constitution is that the Government or the Legislature has been restrained firstly from omitting any item from the prescribed jurisdiction of Federal Shariat Court in matters relating to Hudood, and secondly the additional power which may subsequently be included in the jurisdiction of the court under sub-Article (3) of Article 203-DD will be of the nature that it cannot be taken away by routine legislative measure. The additional jurisdiction, whenever conferred would be saved by constitutional provision. The Constitution 873 commands in unambiguous terms that Federal Shariat Court shall, to the exclusion of any other court in Pakistan, have exclusive jurisdiction to control, supervise and streamline the process of the enforcement of Hudood under any law by any court or judicial forum. In Article 203DD the term used is "enforcement of Hudood" and not mere Hudood. In this context the word enforcement means the action of making sure that people obey the Islamic law relating to Hudood or the result of making sure that people obey the law. The intent of the authors of this constitutional provision is clear. It confers wider powers and 874 jurisdiction on the Federal Shariat Court so that not only the enforcement or implementation of Hudood law is ensured but judicial guarantee is provided to ensure correctness, legality and propriety as well as regularity of proceedings in relation to the enforcement of Hudood as prescribed by Injunctions of Islam in the administration of criminal justice with a. view to protecting Din, Life, Intellect, Progeny and Family as well as the legitimately acquired property of the citizens and the people of Pakistan. The positive law must be aimed at protecting and advancing the objectives of Shariah so as to achieve a correct and proper enforcement of Hudood. Laws have to be implemented in that spirit. The Constitution 875 authorizes the Federal Shariat Court to interfere and exercise its jurisdiction in any case from any criminal court under any law with a view to ensuring the correctness, legality and propriety of such implementation. The word enforcement has been used by the Constitution only in relation to offences relating to or covered by the term Hudood. This is clearly wider expression and includes all those steps which may technically be termed as appellate jurisdiction. Even if the Parliament were to repeal Prohibition (Enforcement of Hadd) Order No. 4 of 1979, Offences Against Property (Enforcement of Hudood) Ordinance (VI of 876 1979), Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) and Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), even then the Federal Shariat Court will continue having exclusive jurisdiction, under Article 203-DD, to call for and examine the record of any case decided by any criminal court tinder any law relating to the enforcement of Hudood. Oxford, Advanced Learner's Dictionary ref. (dd) Constitution of Pakistan--- 877 ----Arts. 203-DD, 203-G & 203-GG---Intent and purport of the Art.203-DD of the Constitution. The intent and purport of Article 203-DD of the Constitution is to provide a single and a central judicial forum which should have exclusive jurisdiction of ensuring correct, legal, proper and regular enforcement of the laws of Hudood throughout Pakistan. The word "revisional" appearing in the head note of Article 203DD has not been used in narrow and limited sense but it has been used in a broader sense. The right of appeal is conceded to an aggrieved party whereas revision is conferring of power, privilege and discretion upon the court to undertake 878 examination of proceeding of a lower tribunal on the application of an aggrieved person or on its motion. If this Article is read with Articles 203-G and 203-GG, it establishes beyond any shadow of doubt that revisionary power includes the appellate powers in relation to Hudood laws and the enforcement of Hudood vest in the Federal Shariat Court to the exclusion of any other court in Pakistan. The words "any power or jurisdiction in respect of any matter within the power and jurisdiction of the court" in Article 203-G makes it abundantly clear that no court will exercise appellate or revisional jurisdiction in matters relating to enforcement of Hudood except the Federal Shariat Court. The power 879 of a High Court to reverse an order of acquittal into conviction, on appeal, is stipulated only under section 417 of the Code of Criminal Procedure but this power which a High Court enjoys under a legislative instrument is conferred upon the Federal Shariat Court specifically through a superior piece of legislation i.e. the Constitution. The Constitution authorizes the Court to convert an order of acquittal into conviction. The Constitution therefore preserves and consolidates all the legally conceivable powers and jurisdiction in Federal Shariat Court in all matters relating to the enforcement of Hudood which any other court may enjoy collectively as an appellate and revisional court under 880 ordinary law. Be it the Psalms of David, Gospel of Jesus, Tables of Moses or the Scripture revealed upon Muhammad PBUH, Allah Almighty made His promise abundantly clear that the weak and the oppressed, the meek and the browbeaten shall inherit this earth. Allah was Gracious to those who were oppressed in the land and in His infinite mercy, He made them leaders of humanity and helped them succeed to the resources of this world. The Righteous servants of God, in turn, uphold the guiding principles and permanent values ordained and preserved in the Revelation and come forward to implement the regulations proposed by the 881 Lord Creator. They do not hesitate to implement and enforce the injunctions prescribed by Allah. Ayaat Nos. 133 and 165 of Surah No.6; Ayaat Nos. 100, 130 and 134 of Surah No.7; Ayah No.14 of Surah No.10; Ayah No. 57 of Surah No.11; Ayaat Nos. 11 and 105 of Surah 21; Ayah No.55 of Surah 24; Ayah No.62 of Surah 27; Ayah No.5 of Surah 28; Ayah No.39 of Surah 35; Ayah No. 26 of Surah 38; Ayah No.38 of Surah 47; Ayah No.7 of Surah 57 and Ayah No.41 of Surah 70 ref. (ee) Constitution of Pakistan--882 ----Arts. 203-D & 227---Powers, jurisdiction and functions of the Federal Shariat Court--Foundation and Scope of Art.203-D of the Constitution stated. The basis of Article 203 D can be traced to Ayaat 59 through 65 of Surah 4, An-Nisa. A perusal of these Ayaat shows that the following two standards have been identified by Holy Quran for the resolution of disputes, particularly between the citizenry and the State: 883 (i) The first point of reference is the Word of God; (ii) The second point of reference is the Sunnah of the Holy Prophet PBUH; Those who deny this procedure/process are termed hypocrites by Holy Qur'an. The nutshell of Ayah 62 Surah 4, An-Nisa and Ayaat 47 through 52 is that those who do not observe what Allah or His Chosen Messenger PBUH has ordained may fall in the category of Munafiqeen i.e. the hypocrites. This is the situation which a believer would certainly avoid in all circumstances. 884 The message of the above mentioned seven Ayaat of Surah 4 is restated with full vehemence in Ayaat 43 through 50 of Surah 5, Al-Maida. The nutshell of the Divine verdict in these Ayaat is that those who do not judge between people in accordance with what has been revealed are Disbelievers, Wrong-doers and Evil-livers. It is in this background that Article 203-D and Article 227 of the Constitution of Pakistan has to be understood, appreciated, construed, interpreted and implemented. Article 203D of the Constitution provides a practical mechanism to: 885 (a) ensure implementation of the mandate contained in Article 227 of the Constitution that no law shall be enacted which is repugnant to the Injunctions of Islam contained in Holy Quran or Sunnah; (b) achieve the goal, visualized in clause three of Objectives Resolution that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and 886 (c) provide machinery at national level not through an ordinary piece of legislation but through the agency of the fundamental law of Pakistan by way of creating a superior court with exclusive jurisdiction to undertake solemn exercise of adapting the Statute Book of Pakistan with Injunctions of Islam. The reason that a constitutional provision has empowered the Federal Shariat Court to examine laws on the touchstone of Injunctions of Islam can be traced to Ayah 85 of Surah 28, Al-Qasas which proclaims 887 that Allah made the teachings of Holy Quran binding upon the believers. The other reason is furnished by Ayah 23 Surah 3, Ale-Imran, Ayah 105 Surah 4, An-Nisa; Ayaat 44, 47 Surah 5, Al-Maidah; Ayah 114 Surah 6, Al-Anam. All these verses proclaim that people should be judged according to the teachings and principles handed over by Revelation. Still another reasons is that the Holy Quran proclaims itself as FURQAN i.e. Distinguisher. In other words Quran is the litmus test. Human conduct in Muslim societies should not be apposed to the spirit and teachings of the Holy Book. (ff) Islamic jurisprudence--888 ----Ijtehad---Role justice. in administration of . The criteria for resolving conflicts among people at judicial level is best illustrated by the instructions given by Holy Prophet PBUH to Maaz bin Jabel on the eve of his appointment as Governor of Yamen. Decisions were to be given in the light of Injunctions contained in Holy Quran and if no guidance was available in the primary source, the judgment was to be based upon the guiding principles provided by Sunnah and in the absence of any precedent or Injunction available in the above two basic 889 sources, then the judge was to undertake Ijtehad i.e. application of mental faculties to the maximum in resolving the issue without violating the spirit of guiding principles provided by two primary sources: This was the first occasion when the term Ijtehad was employed in the realm of administration of justice by a Companion in the presence of Holy Prophet (PBUH) who approved it whole heartedly. This was the time and occasion when the exercise of Ijtehad for the resolution of disputes received formal sanction. From that point onward Ijtehad played an important role in the evolution of Islamic jurisprudence and the administration of justice. 890 (gg) Constitution of Pakistan--- ----Arts. 203-GG, 189 & 201---Decision of Federal Shariat Court---Nature and scope. A careful reading of Article 203-GG as well as Articles 189 and 201 of the Constitution indicates that the Federal Shariat Court is not bound even by its own decisions. There is no institutionalized taqlid in so far as this Court is concerned. It is the continuation of the time honoured practice in Muslim societies that the Judges were not bound by previous decision in matters within the ambit of uncovered field. The reason was simple: In the given circumstances of a 891 situation when no legal provision was available to resolve a controversy, an effort to discover a remedy was resorted to by undertaking Ijtehad in the larger interest of Justice. Justice is indeed related to the restoration of rights. Resolution of human problems does not brook a vacuum. A still better view is always possible on account of practical experience gained by all the stakeholders in the administration of justice particularly on account of change of conditions and circumstances. Human thought is not stagnant. Human mind is a dynamic faculty. It progresses and develops by experience. The process of development and evolution is ongoing. This course is not static. Injunctions of Islam do not enjoin 892 negation of movement. Islamic teachings beckon a person to look forward for a better future. The superior courts, particularly in matters relating to Islamic jurisprudence, are under an obligation to develop law in the light of Injunctions of Islam as laid down in Holy Quran and Sunnah. Exercise of Ijtehad implies that the courts are not bound by one interpretation in the uncovered field for all times to come: Wisdom and saner counsel is the common heritage of humanity. The net result of incorporating Article 203-GG is that any decision of the Federal Shariat Court in exercise of its jurisdiction, is binding on a High Court and 893 on all courts subordinate to such High Court. The trial courts are subordinate to provincial High Courts with the result that the findings of Federal Shariat Court, as regards its jurisdiction over trials relating to enforcement of Hudood as well as its interpretation and decisions shall be binding on provincial High Courts and the courts subordinate to the High Courts. The phrase "to the extent that it decides a question of law or is based upon or enunciates a principle of law" mentioned in Articles 189 & 201 of the Constitution is conspicuous by omission in Article 203-GG. It therefore means in very clear terms that the ratio as well as dicta in a judgment of 894 the Federal Shariat Court is binding upon the four provincial High Courts as well as all the courts throughout the country as these courts are subordinate to one or the other High-Court. Any judgment, order or decision delivered, passed or given by a High Court or a court subordinate to a High Court, contrary to the decision of Federal Shariat Court will be a judgment per incuriam. High Court has no jurisdiction under section 561-A of the Code of Criminal Procedure and Article 199 of the Constitution in matters which fell within the jurisdiction of Federal Shariat Court. Decision of the High Court in such matters was coram non judice. This jurisdiction of the Federal Shariat Court therefore is 895 exclusive in nature and is not shared by any superior Court/Tribunal created by the Constitution. Ayah 46, Surah 34, Saba; Zaheer ud Din v. The State 1993 SCMR 1718; Auranzeb v. Massan 1003 CLC 1020 and Hafiz Abdul Waheed v. Mst. Asma Jehangir P1D 2004 SC 219 ref. (hh) Constitution of Pakistan--- ----Art.203-E(a)---Power of review by Federal Shariat Court---Nature and Scope. 896 This power of review is not subject to any Act of Parliament. The vast power of review conferred upon the Federal Shariat Court is in effect the acceptance of the principle of IJTIHAD for the development of Islamic Jurisprudence through the agency of this court of original jurisdiction. The objective in conferring this power upon the Federal Shariat Court has it genesis in Ayah 17 Surah 13, Ar-Rad, Holy Qur'an. The decisions of the Federal Shariat Court are supposed to clean the existing law of any dirt or possible trash. 897 Hazoor Bux v. Federation of Pakistan PLD 1981 FSC 145 and Federation of Pakistan v. Hazoor Bux and 2 others PLD 1983 FSC 255 ref. (ii) Constitution of Pakistan--- ----Arts. 203-D & 203-C---Creation of Federal Shariat Court---Purpose--Declaration' in Holy Quran conceding the protest of aggrieved person--Administration of justice in Islam--Principles. 898 The historic opening words of the first Ayah of Surah Mujadilah is very significant as it is the solitary instance in the history of revealed literature where a woman, aggrieved by an inhuman custom, having the force of law, entered a caveat. Her rights as a wife had been suspended unilaterally by oral pronouncement made by the husband. She lodged a protest before Muhammad (PBUH), the head of the nascent Islamic polity, because she knew that Allah through His Apostle had the power to promulgate, amend, change, alter, substitute or even repeal any prevalent rule or custom having the force of law. Her supplication was answered. The prompt revelation proclaimed: 899 "O protesting lady! Your petition has been heard." This declaration is preserved in Holy Quran as Ayah No.1 Surah 58, Al-Mujadilah. The following principles of law can therefore be deduced from this very Injunction of Islam:- (i) Right of protest is conceded to an aggrieved person; (ii) Every person aggrieved of an inhuman rule, law, custom or practice, having the force of law, has a right to get it 900 reviewed by competent authority; (iii) The aggrieved person in such a situation should have free access to justice; (iv) The aggrieved person shall have the right of audience at the time of initiating the complaint; (v) The Authority is under an obligation to probe into the complaint and may for that purpose undertake examination of any impugned law or practice; 901 (vi) The Authority must examine the issue and deliver a speaking and an effective order; and (vii) The Authority, may in the facts and circumstances of the case not only introduce necessary amendments in law but may also provide a remedy to rectify the wrong. In this view of the matter the creation of Federal Shariat Court is in fact practical realization of the remedy contemplated by Holy Quran for persons aggrieved by antipeople laws and inhuman practices having the force of law. The Federal Shariat Court, 902 in exercise of its jurisdiction under Article 203-D, in fact 'discharges the obligation imposed by Ayah 103 of Surah 3, Ale-Imran because the power todeclare a law to be in conflict or otherwise to the Injunctions of Islam is not only a message to the people to follow what is good and avoid what is wrong. The yardstick to determine what is good or bad according to Muslim belief, is certainly the Revealed principle. Ayah No.1 Surah 58, Al-Mujadilah ref. (jj) Constitution of Pakistan--- 903 ----Arts. 203-C, 228 & 227---Creation of Federal Shariat Court and composition of Council of Islamic Ideology---Object and Scope. The creation of the Council of Islamic Ideology and the Federal Shariat Court in due course of time after the .creation of Pakistan, through constitutional apparatus provides technical assistance/ recommendations to the Parliament/Provincial Assemblies before finalizing legislation while the Federal Shariat Court examines, whenever any question arises, any law or provision of law on the touchstone of Injunctions of Islam after a proposed Bill has materialized into 904 an Act. The Council of Islamic Ideology appears to be an adjunct of the Parliament/Provincial Assemblies/President/Governor but it does not provide remedies to general public. The Federal Shariat Court is not part of the legislative wing of the State but it has the potential to provide relief to any person who is aggrieved of or is critical of any legislative measure. This court on the other hand gives personal hearing to a petitioner and undertakes an examination of the question submitted for its consideration. The procedure for invoking jurisdiction of Federal Shariat Court is not only simple but has been made inexpensive as well. Persons desirous of seeking examination of a given 905 law or a provision of law or even custom, having the force of law, may not be permitted an ingress in the premises of legislative bodies to demand review of impugned legal instruments but the Constitution has provided a forum at the federal level to the citizens of Pakistan enabling them to invoke its extraordinary jurisdiction by making an application, without stamp duty and claim examination of any law, on the touchstone of Injunctions of Islam without constraint of period of limitation. The application for examination can be made at any provincial head-quarter or the principal seat of this Court at Islamabad. Once a Shariat Petition is submitted, it cannot be dismissed on the 906 sole ground of absence or death of the petitioner. The Court may proceed with the examination of the impugned law which has been brought to its notice. The creation of Federal Shariat Court is a natural sequel to Article 227 of the Constitution. It is therefore abundantly clear that the basic object of creating Federal Shariat Court at the national level was to provide a vigilant and effective forum to oversee that no legal instrument, made enforceable in the Federation, remains de hors the Injunctions of Islam. This particular aspect is 907 in fact the practical realization of the second part of clause (1) of Article 227 of the Constitution of Pakistan which proclaims that no law shall be enacted which is repugnant to Injunctions of Islam. The possibility of a legal provision, being incorporated in a Federal or a Provincial law, which is contrary to one or more Injunctions of Islam, cannot be ruled out because to err is human. The powers vesting in the Federal Shariat Court to examine the provisions of any law in fact provide a speedy and an effective remedy to rectify any error which might creep in while drafting the legal instrument. The power conferred upon the Federal 908 Shariat Court under Chapter 3A of Part VII of the Constitution is mandatory. The imperative nature of a decision of the court is mentioned in Article 203-G of the Constitution which states that the final decision of the Federal Shariat Court is binding on all the High Courts and on all courts subordinate thereto. This is at par with the obligatory nature of the decisions of the High Court under Article 201 as well as the provision contained in Article 189 which makes the decision of the Supreme Court conclusive and binding on all other courts in Pakistan. This power is therefore more than what is visualized commonly about mandatory statutes. Without even alluding to the power of contempt 909 stipulated for the three above mentioned constitutional courts it is discovered that the intention of legislature was indicated in unequivocal terms by mandating that the order passed by courts have to be obeyed, implemented and acted upon and further that the jurisdiction mandated for these three constitutional courts shall have to be honoured and preserved. Clause (2) of Article 5 of the Constitution states that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan. Ayah No.1, Surah 58, Al-Majadalah of Holy Quran; Ayah No.17 Surah 13, Ar-Raad of 910 Holy Quran and Ayah 111 of Surah 3, Al-eImran ref. (kk) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)--- ----Preamble---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Preamble---Prohibition (Enforcement of Hadd) Order (4 of 1979), Preamble---Control of Narcotic Substances Act (XXV of 1997), Preamble---Anti Terrorism Act (XXVII of 1997), Preamble--911 Penal Code (XLV of 1860), Preamble--Constitution of Pakistan, Art.203-DD--Revisional and other jurisdiction of Federal Shariat Court---Scope---Final or interim orders passed or judgments delivered by trial courts exercising jurisdiction on criminal side with regard to offences covered by the term "Hudood", whether mentioned in Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Offence of Zina Enforcement of Hudood) Ordinance, 1979; Offence of Qazf (Enforcement of Hadd) Ordinance, 1979; Prohibition (Enforcement of Hadd) Order, 1979; Control of Narcotic Substances Act, 1997; Anti Terrorism Act, 1997; Penal Code, 1860 or any other law for the time being in 912 force, can be challenged by way of appeal or otherwise only before the Federal Shariat Court and no other court of criminal jurisdiction is competent to entertain and adjudicate upon proceedings connected with Hudood offences---Initiation of proceedings to quash First Information Report or pending criminal proceeding related to Hudood matters are within the exclusive jurisdiction of Federal Shariat Court in view of the mandate of Art.203-DD of the Constitution---Remedy against grant or refusal of bail before or during the trial of any of the above mentioned offences lies before Federal Shariat Court alone and no other court has jurisdiction to entertain any proceedings in such matters---Federal 913 Shariat Court directed that present declaration relating to Protection of Women (Criminal Laws Amendment) Act, 2006, The Control of Narcotic Substances Act, 1997 as well as Anti-Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011---Other items of the Declaration become operative forthwith. (ll) Protection of Women (Criminal Laws 914 Amendment) Act (VI of 2006)--- ----Ss. 11, 28 & 29---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble---Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979), Preamble---Constitution of Pakistan, Chap.3A, Part VII & Art.203-DD---Powers and jurisdiction of Federal Shariat Court--Vires of statute---Sections 11, 28 and 29 of Protection of Women (Criminal Laws Amendment) Act, 2006 have been found to be violative of Art.203-DD of the Constitution of Pakistan---Overriding effect given to Offence of Zina (Enforcement of Hadd) Ordinance, 1979 and Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 915 was doubly fortified as the provisions of Chap.3A Part VII of the Constitution, which deal with the powers and jurisdiction of Federal Shariat Court, were mandated to have effect notwithstanding contained in the Constitution---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective, and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. (mm) Control of Narcotic Substances Act 916 (XXVII of 1997)--- ----Ss. 48 & 49---Constitution of Pakistan, Chap.3A of Part VII & Art.203-DD---Powers and jurisdiction of Federal Shariat Court--Vires of statute---Section 48 of Control of Narcotic Substances Act, 1997 whereby the High Court has been empowered to entertain and decide appeals arising out of the orders passed by the Special Court as well as the power of High Court under section 49 of the Act to transfer cases, at any stage, from one Special Court to another Special Court are inconsistent with the provisions contained in Chap. 3A of Part VII of the Constitution---Power to entertain appeals against orders passed or judgments 917 delivered by a Special Court established under section 48 of the Act in matters related to Hudood offences and other proceedings including transfer of cases from such court vests in the Federal Shariat Court because offences related to narcotics are covered by the term Hudood---Word "High Court" occurring in these sections shall be substituted with the words "Federal Shariat Court"---Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the 918 Federal Shariat Court will be operative as on 22-6-2011. (nn) Protection of Women (Criminal Laws Amendment) Act (VI of 1006)--- ----S. 25---Constitution of Pakistan, Art.203DD---Repugnancy to Injunctions of Islam--Section 25 of Protection of Women (Criminal Laws Amendment) Act, 2006 is repugnant to Art.203-DD of the Constitution because it makes Lian a ground for divorce and thereby causes additional and uncalled for hardship to the "wife" which is contrary to the principle of Ease (Yusr) enunciated by Holy Qur'an--Federal 919 Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. (oo) Anti-Terrorism Act (XXVII of 1997)--- ----Sched. Item 2---Constitution of Pakistan, Art.203-DD---Powers and Jurisdiction of Federal Shariat Court---Vires of statute--920 According to the amendment effected in item 2 of Sched. of Anti-Terrorism Act, 1997 dated 21-8-1997, the Federal Government in exercise of power vesting in it under section 3 of the Anti-Terrorism Act, 1997 authorized the Anti-Terrorism Courts to try some categories of offences relating to Hudood without providing a rider in section 25(i) of the said Act that appeals in cases involving Hudood offence would lie to the Federal Shariat Court---Said amendment in the Schedule without corresponding change in S.25(i) offends the constitutional provision contained in Art.203-DD which confers exclusive jurisdiction upon Federal Shariat Court in cases relating to the enforcement of Hudood---"Any case 921 decided. by any criminal court under any law relating to the enforcement of Hudood" is to be heard and decided by the Federal Shariat Court alone---Such position is therefore travesty of legal constraint imposed by the Constitution---No authority is superior to the Constitution--Constitution has to be upheld at all costs--Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 922 22-6-2011. (pp) Constitution of Pakistan--- ----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court--Scope---Categories of offences covered by the term "Hudood" as contemplated by Art.203-DD of the Constitution and tribable exclusively by the Federal Shariat Court under its revisional and appellate jurisdiction. The following ten categories of offences are inter alia covered by the term Hudood as 923 contemplated by Article 203-DD of the Constitution and hence within the exclusive appellate and revisional jurisdiction of the Federal Shariat Court: (i) Zina = In all its forms including Adultery, Fornication and Rape. (ii) Liwatat= Sexual intercourse against the order of nature; (iii) Qazf= Imputation of Zina; (iv) Shurb = Alcohlic drinks/Intoxicants/ 924 Narcotics etc; (v) Sarqa = Theft simplicitor; (vi) Haraaba = It includes Robbery, Highway Robbery, Dacoity and all other categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code. (vii) Irtidad= Apostacy. It includes all offences mentioned in Chapter XV of the Pakistan Penal Code, namely: Of Offences Relating to Religion. 925 (viii) Baghee =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code. (ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because the penalty therein has been prescribed by Nass/Ijma. [Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Al-Tashree ul Jinai al Islami, Volume 1 at page 119, and (x) Human Trafficking. 926 Appeal or Revision against any order, final or interim, passed by any criminal court under any law with regard to proceedings connected with or ancillary to or contributing towards commission of any of the above-mentioned offences, shall not be entertained by any court other than the Federal Shariat Court. Section 338-F of the Pakistan Penal Code has, in very clear words, prescribed that in the interpretation and application of its provisions and in respect of matters ancillary or akin thereto, the court shall be guided by the Injunctions of Islam as laid down in Holy Quran and Sunnah. The determination of what is in accordance with Injunctions of Islam is the 927 sole province of Federal Shariat Court and no other court. Additionally all those matters relating to the Family life of Muslims, for which the term Hadood Allah has been used in Holy Quran are covered in the abmit of Hudood and hence within the appellate and revisional jurisdiction of the Federal Shariat Court. The term "Enforcement of Hudood" encompasses all categories of offences and matters mentioned above. These offences are included in the scope of the term Hudood wherein the punishments have been prescribed by Holy Quran or Sunnah of the Holy Prophet PBUH and subsequently through legislative measures. Such 928 punishments can be awarded by trial courts duly constituted under law. The term Tazir when applied to any offence which partakes of the nature of Hudood or is ancillary or akin to or contributing towards commission of offences covered by the term Hudood or even where the proof prescribed for establishing Hadd is lacking, would of necessity fall within the ambit of the term Hudood and hence within the jurisdiction of Federal Shariat Court. Consequently all matters within the parameters of Hudood, including offences in which cognizance has been taken in any form as stipulated in section 190 of the Code of Criminal Procedure or under any other law dealing with offences relating to `Hudood', are, for 929 all purposes, enshrined in the jurisdiction of Federal Shariat Court as mandated by the Constitution, which jurisdiction includes, appeal, revision, review, grant or refusal of bail, transfer of cases, calling and examining record of proceedings, and applications to quash proceeding initiated before or during trial and all matters ancillary to such cases, at any stage of investigation, enquiry or trial. (qq) Constitution of Pakistan--- ----Art. 203-D---Powers, jurisdiction and functions of Federal Shariat Court---Scope--Examination of vires of a statute---Vires of 930 an Act are to be examined in the light of the limitations imposed by the Constitution--However if the court finds a law or a provision of law to be inconsistent with constitutional provisions, it is competent to strike it down to the extent of such inconsistency---Federal Shariat Court is additionally empowered to examine a law on the touchstone of Injunctions of Islam--Court will therefore keep in mind three elements: The legislative competence; the touchstone of Fundamental Rights and the yardstick of Islamic Injunctions---Such an exercise is resorted to not because Judiciary is superior but on account of the fact that: dignity of law and legal principles have to be maintained; that Constitution has to be 931 upheld and enforced; that above all the people of Pakistan have to be enabled to live upto the permanent values and guiding principles enunciated by Islam; and that members of superior judiciary are under oath to do all these things. (rr) Constitution of Pakistan--- ----Preamble, Arts. 2A, 31 & Chap.3A, Part VII & Part IX---Legal presumptions based upon various Injunctions of Islam, the constitutional provisions and the Judge made law enumerated. 932 Following are the legal presumptions based upon various Injunctions of Islam, the constitutional provisions and Judge-made law: (i) The sole repository of the authority to interpret legal instrument is the court constituted under the Constitution. (ii) Members of the superior judiciary are under oath to uphold the Constitution and the law. (iii) The Preamble, Articles 2A and 31, Chapter 3A of Part VII and Part IX of 933 the Constitution make it incumbent upon the State to create conditions which may enable the Muslim of Pakistan, individually and collectively, to order their lives in accordance with fundamental principles and basic concept of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah. (iv) That Holy Quran prohibits very strictly any extra-marital activity between man and woman and is consequently full of praise for those who shun illicit activity, i.e. those who guard their 934 chastity and private parts. Reference Ayat 35 Sura 33, Al-Ahzab and Ayat 29 Sura 70, Al-Ma'arij. (v) Human dignity, honour and human life has to be preserved. Laws which protect property of persons have also to be upheld. (vi) Legal provisions are enacted to establish peace, order and balance in the society both at domestic level and among nations at International level. Reference Ayaat 1 to 6 Sura 83, AlTaffit; Ayat 38 Sura 2, Al-Baqara; Ayat 55 Sura 24, Al-Noor. 935 (vii) Wisdom and saner counsel wherever recorded, according to the well known tradition of the Holy Prophet PBUH, is the lost treasure of believers and they are exhorted to acquire it as and when available. In this view of the matter all the legal principles relating to the domain of interpretation of legal instruments, or reflecting permanent values, from any jurisdiction, if not opposed to the letter and spirit of Holy Quran and Sunnah, will be considered part of principles of Islamic Jurisprudence. 936 (viii) The Court has to be extremely vigilant on the issue of implementation of the Injunctions of Islam because a stern warning has been given to those who cover up the Divine Commandments. Reference Ayah 159, Surah 2, Al-Baqarah: "Those who conceal anything of the clear teachings and true guidance which We have sent down even though We have made them clear in Our Book, Allah curses such people and so do all the cursers." (ss) Constitution of Pakistan--937 ----Arts. 203-DD & 203-D---Re visional and other jurisdiction of Federal Shariat Court--Hudood Offences---Federal Shariat Court declared that all those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by Holy Quran, Sunnah, including all such acts which are akin, auxiliary, analogous, or supplementary to or germane with "Hudood" offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term "Hudood"-Federal Shariat Court directed that present declaration 938 become operative forthwith. (tt) Constitution of Pakistan--- ----Art. 203-DD & Chap. 3A of Part VII--Jurisdiction of Federal Shariat Court under Art.203-DD of the Constitution---Extent--Federal Shariat Court declared that extent of Jurisdiction of Federal Shariat Court in matters relating to the "Hudood" under Art.203-DD is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other court is empowered to entertain appeal, revision or reference in 939 such cases---No legislative instrument can control, regulate or amend said jurisdiction which was mandated in Chap. 3A of Part VII of the Constitution---Federal Shariat Court directed that present declaration become operative forthwith. (uu) Constitution of Pakistan--- ----Art. 203-DD---Revisional and other jurisdiction of Federal Shariat Court in Hudood matters---Scope--- "Proceedings" as used in Art.203-DD of the Constitution--Connotation---Bail, grant or refusal of--Federal Shariat Court declared that an order granting or refusing bail before conclusion 940 of trial in all categories of offences within the ambit of Hudood is covered by the word proceedings, as used in Art.203-DD, and hence within the exclusive jurisdiction of the Federal Shariat Court and can be impugned only in Federal Shariat Court--Federal Shariat Court directed that present declaration become operative forthwith. (vv) Constitution of Pakistan--- ----Art. 203-DD---Offences covered by the term "Hudood" for the purpose of Art.203DD of the Constitution---Federal Shariat Court declared offences of (1) Zina = Adultery, Fornication and Rape; (2) Liwatat= 941 Sexual intercourse against the order of nature; (3) Qazf= Imputation of Zina; (4) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc; (5) Sarqa = Theft simpliciter; (6) Haraaba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code; (7) Irtdad= Apostacy; (8) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and (9) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass/Ijnta (10) Human Trafficking as offences covered by the term 942 "Hudood" for the purpose of Art.203-DD of the Constitution---Present declaration in the above four items shall take effect immediately because all the counsel representing the respondents, the jurisconsult as well the amicus curiae, agreed on the said four issues---Said conclusions having been consented to by the parties need nothing more to be done. (ww) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)--- ----Ss. 11 & 28---Constitution of Pakistan, Art.203-DD---Vires of Statute---Federal Shariat Court declared that sections 11 and 943 28 of the Protection of Women (Criminal Laws Amendment) Act, 2006 are violative of Art.203-DD of the Constitution because these provisions annul the overriding effect of Offence of Zina (Enforcement of Hadd) Ordinance, 1979 and Offence of Qazf (Enforcement of Hudood) Ordinance, 1979--Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned law in conformity with present declaration whereafter the impugned provisions shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. 944 (xx) Control of Narcotic Substances Act (XXV of 1997)--- ----Ss. 48 & 49---Constitution of Pakistan, Art.203-DD, Chap. 3A, Part VII---Vires of Statute---Federal Shariat Court declared that the portions of Ss.48 & 49 of The Control of Narcotic Substances Act, 1997 whereby the High Court has been empowered to (a) entertain appeals against the order of a Special Court consisting of a Sessions Judge or an Additional Sessions Judge and (b) transfer within its territorial jurisdiction any case from one Special Court to another Special Court at any stage of the 945 proceedings, are violative of the provisions contained in Chap.3A of Part VII of the Constitution because the offences envisaged by the Act are covered by the terra "Hudood"-Both the sections are consequently declared violative of Art.203DD of the Constitution---Portion which contains the words "High Court" should be deemed to be substituted by the words "Federal Shariat Court" in Ss.48 & 49 of the Control of Narcotic Substances Act, 1997--Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned law in conformity with present declaration whereafter the 946 impugned provision shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. (yy) Protection of Women (Criminal Laws Amendment) Act (VI of 2006)--- ----Ss. 25 & 29---Constitution of Pakistan, Art.203-DD---Repugnancy to Injunctions of Islam---Federal Shariat Court declared that section 25 of the Protection of Women (Criminal Laws Amendment) Act, 2006 is violative of Art. 203-DD of the Constitution as it omits subsections (3) and (4) of section 14 of the Offence of Qazf (Enforcement of 947 Hadd) Ordinance, 1979 with the result that it has adversely effected the operation of Injunctions of Islam relating to Lian; consequently S.29 of Protection of Women (Criminal Laws Amendment) Act, 2006 is also violative of Art. 203-DD as it adds clause (vii)(a) Lian in S.2 of the Dissolution of Muslim Marriages Act, 1939---Said addition in the latter Act also becomes invalid on account of repugnancy with the Injunctions of Islam relating to Lian--Federal Shariat Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the 948 impugned provisions shall cease to be effective and present judgment of the Federal Shariat Court will be operative as on 22-6-2011. (zz) Anti-Terrorism Act (XXVII of 1997)--- ----S. 25---Constitution of Pakistan, Art.203DD---Offences in cases relating to Hudood--Vires of statute---Federal Shariat Court declared that S. 25 of the Anti-Terrorism Act, 1997 does not make provision for filing an appeal before the Federal Shariat Court in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offences included in the Schedule 949 as from 21-8-1997; said omission is violative of Art.203-DD of the Constitution---Federal Government should rectify this error by the target date fixed by Federal Shariat Court otherwise the rider to the effect that "but where a private complaint or a First Information Report or information, as stipulated in 5.190 of the Code of Criminal Procedure, relating to an offence falling within the purview of ten categories of Hudood Offences (mentioned in the present judgment), is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the Federal Shariat Court." shall be read at the end of clause (i) of S.25 after omitting the full stops---Federal Shariat 950 Court directed that present declaration shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with present declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-6-2011. Mian Abdur Razzaq Aamer, Ch. Muhammad Aslam Ghuman and Abdul Latif Sufi for Petitioners. Sardar Abdul Majeed, Standing Counsel for Federal Government, Mr. Tariq Ali, 951 Advocate for Federal Government, Mr. Muhammad Israr, Advocate on behalf of Sardar Abdul Majeed, Standing Counsel, Syed Hasnain Haider, Advocate for Federal Government and Syed Azmat Ali Bukhari, Standing Counsel for Federal Government/Attorney General, for Federal Government. Mr. Shafaqat Munir Malik,' Additional Advocate General, Punjab and Ch. Saleem Murtaza Mughal, Assistant Advocate General Punjab for the Punjab Province. Fareed-ul-Hassan, A.A.G., Sindh for the Sindh Province. 952 Muhammad Sharif Janjua, Advocate on behalf of Advocate General, N.-W.F.P. and Aziz-ur-Rehman, Advocate on behalf of Advocate-General, Khyber Pakhtoon Khaw for N.-W.F.P./Khyber Pakhtoon Khaw. Salahuddin Mughal, Advocate General Balochistan, Tariq Ali Tahir, Additional Advocate General Balochistan, Muhmood Raza Khan, Additional Advocate General Balochitan and Muhammad Sharif Janjua, Advocate on behalf of Advocate General Balochistan for Balochistan. 953 Hafiz Muhammad Tufail and Dr. Muhammad Hussain Akbar, Jurisconsults. Raja Muqsit Nawaz Khan and Syeda Viquarun-Nisa Hashmi: Amicus curiae. Dates of hearing: 29th January. 13th, 25th March, 7th May, 18th November, 2008; 5th, 20th January, 11th February, 2nd April, 2009; 29th March, 19th April, 17th, 26th May, 5th, 6th July, 26th October and 23rd November, 2010. JUDGMENT 954 SYED AFZAL HAIDER: J . - - Those who do not judge by what Allah has revealed are indeed the Unbelievers. (5:44) Those who do not judge by what Allah has revealed are indeed the Wrong-doers.(5:45) And those who do not judge by what Allah has revealed are the Transgressors. (5:47) Then We revealed the Book to you, (0 Muhammad), with Truth, confirming what955 ever of the Book was revealed before, and protecting and guarding over it. Judge, then, in the affairs of men in accordance with (the commandment) what Allah has revealed. (5:48) AND Take whatsoever the Prophet (Muhammad PBUH) gives you and abstain from whatever he forbids and fear Allah: verily Allah is Most stern in retribution Ayat 7, Sura 59, Al-Hashr, The Holy Quran EXHORDIUM 956 2. This Judgment will dispose of the following three connected Shariat Petitions: (i) Shariat Petition No.1/I of 2010. (ii) Shariat Petition No.3/I of 2007. (iii) Shariat Petition No.1/I of 2007. Shariat Petition No. 1/I of 2010, at serial number i, seeks to challenge sections 5,6 and 7 of the Protection of Women Act, 2006 (Act. No.VI of 2006); while Shariat Petition No.3/I of 2007, at serial number ii, impugns the same sections as well as the entire Act VI of 2006; whereas Shariat Petition No.1/I 957 of 2007, at serial number iii, calls into question sections 5 and 7 of Act VI of 2006 whereby section 376, 496-B and 496-C have been added in the Pakistan Penal Code. Act VI of 2006 entitled Protection of Women (Criminal Laws Amendment) Act, 2006 impugned in these petitions, will be referred to in this judgment as the Act., Three petitions at serial i, ii and iii were clubbed together by an order of this Court dated 29-3-2010. The order reads as follows:- "According to the office report Shariat Petition No.1 as well as Shariat Petition No.3/I of 2007 was dismissed for non prosecution on 25-3-2008. The present 958 Shariat Petition No.1/I of 2010 has a nexus with the said two petitions. We are inclined to restore the said two Shariat Petitions i.e. Nos.1/I & 3/I of 2007 to the same numbers so that they are also linked up with this petition for disposal. Learned counsel inter-alia contends that the addition of new sections 5, 6 and 7 in the Protection of Women (Criminal Law Amendment) Act, 2006, including the omission of the first proviso to section 20 of Ordinance VII of 1979 is not only repugnant to the Injunctions of Islam but is also violative of the constitutional provisions contained in 959 Article 203-DD(i). The Federal Shariat Court has, it is urged, exclusive jurisdiction in any case decided by any criminal court under any law relating to the enforcement of Hudood The learned counsel also states that according to the Injunctions contained in Ayat 4 of Sura 24 i.e. Sura Noor of Holy Quran, every person who indulges in calumny against chaste women looses his legal capacity to give evidence in any court of law. The points raised are substantial and need consideration. Admit. Notice. A copy of this order be sent to respondents Nos.1 and 2 with the direction to file written statements 960 within two weeks. The case be fixed in the third week of April, 2010." Initially Shariat Petition No.9/I of 2004, pending disposal in this court for the last six years, was ordered to be heard along with the other three petitions as common legal instruments were impugned in these petitions. Written statement had also been submitted by answering respondents in Shariat Petition No.9/I of 2004 which was duly amended in November, 2008 to include simultaneous challenge to the Act. Arguments on all the four petitions were heard on 16 dates over a period of almost three years. Last date of hearing was 26-102010. However on 23-11-2010 petitioner in 961 Shariat Petition No.9/I of 2004 submitted that he would not like his case to be bracketed with the other three Shariat Petitions because the point raised by him was. of "first .impression" and further that during the last fourteen centuries wrong interpretation had been put on the word Shahadah occurring in Holy Quran. He claimed to be son of Prophet Syedna Yaqub A.S. and claimed that his interpretation of the Ayaat of Holy Quran will revolutionize the criminal law all over the Muslim world. His prayer to separate out his petition was not opposed by the answering respondents. Consequently his request was allowed with a direction to the office to delink Shariat Petition No.9/I of 2004 with further 962 direction that his petition be fixed separately at some appropriate time. In this view of the matter this judgment will dispose of the three other Shariat Petitions mentioned in the title. CONTENTS OF THREE PETITIONS 3. The points urged in the aforementioned three petitions may be summed up as under:- (a) Shariat Petition No.1/I of 2007 963 Mian Abdur Razzaq Aamer, has through this petition, challenged sections 5 and 7 of the Act which have added three new provisions i.e, sections 376, 496-B and 496-C relating to Rape and Fornication, in Pakistan Penal Code. It is contended that the impugned provisions are violative of the Injunctions of Islam. (b) Shariat Petition No.3/I of 2007 Ch. Muhammad Aslam Ghuman has, through this petition impugned sections 5, 6, 7 of the Protection of Women (Criminal Laws Amendment) Act, 2006 as being repugnant to the Injunctions of Islam. 964 (c) Shariat Petition No.1/I of 2010 Mr. Abdul Latif Sufi through this petition has also assailed sections 5, 6, 7 of the Protection of Women (Criminal Laws Amendment) Act, 2006 and prayed that the same be declared to be repugnant to the Injunctions of Islam and ultra vires the Constitution of Islamic Republic of Pakistan, 1973. INITIAL DISCUSSION 4. During the course of preliminary 965 arguments learned Counsel for petitioners inter-alia maintained that: the (a) The introduction of Act. VI of 2006 has adversely affected the jurisdiction of Federal Shariat Court though in matters relating to the enforcement of Hudood, the Constitution had conferred exclusive jurisdiction upon this Court as was evident from Article 203DD of the Constitution; (b) The practice of moving the Provincial High Courts for grant of pre-arrest or post arrest bails or cancellation thereof in Hudood matters was illegal as the 966 appellate and revisional jurisdiction in all Hudood matters vested in the Federal Shariat Court alone; (c) The appellate and revisional jurisdiction against orders passed or judgments delivered by Special Court under the Control of Narcotic Substances Act, 1997 (Act No.XXV of 1997) including the power of transfer of cases from one to another Special Court, exercised by the High Court under section 49 ibid, has to be with the Federal Shariat Court as offences relating to ' intoxicants are covered by the scope of the term Hudood; 967 (d) The meaning and scope of the term Hudood should be elaborated with particular reference to the number and nature of offences and human affairs i.e, MUAMLAAT, for a proper appreciation of existing constitutional and legal provisions and future legal instruments; (e) Since all matters relating to the Muslim family are covered by the term Hudood, so the ultimate jurisdiction to hear appeals and revisions in such matters should also vest in the Federal Shariat Court particularly after the introduction of Chapter 3A of Part VII in 968 the Constitution. It was therefore contended that section 14 and section 25-A of Act XXXV of 1964 be also examined; (f) The overriding effect given to the Hudood Ordinances has been protected by the Constitution. Act VI of 2006 cannot limit the extent of jurisdiction which had been guaranteed by the Constitution and lastly it was urged that and; (g) They would not press the objections raised in the Shariat Petitions relating to Act VI of 2006 provided matters relating 969 to jurisdiction of this Court and allied question mentioned in the proposed issues are decided at the first instance. Learned counsel representing respondents 1 through 5 did not controvert the above mentioned seven assertions. In fact each one of them agreed that the questions raised were substantial and required indepth analysis in the larger interest of justice and development of law. It was urged that the issue of Muslim Family Law be also examined as the term Hudood as mentioned in Holy Qur'an covers matters relating to family laws. 970 However it was not deemed advisable to adjudicate upon a number of legal propositions through this judgment. Decision on other matters has been left for some future date in appropriated proceedings. Consequently the respondents were put on notice that this Court would proceed to examine only a limited number of provisions contained in the following six legal instruments in view of the statement of petitioners. (i) Section 3 of Ordinance VII of 1979 (ii) Section 19 of Ordinance VIII of 1979 971 (iii) Sections 11, 28 and 29 of Act VI of 2006 (iv) Part VII and provisions relating to Bails occurring in Part IX of the Code of Criminal Procedure. (v) Chapters 11 and V of Control of Narcotic Substances Act, 1997. (vi) West Pakistan Family Courts Act, (Section 5 read with Schedule I and II ,and section 14 in particular as well as sections 14 and 25-A ibid.) 972 Learned Counsel for respondents were advised to get instructions from respective governments on the questions raised before us. The learned counsel representing the respondents accepted notice as regards the above-mentioned subjects and it was then agreed that necessary issues be struck on these specific points in order to examine the entire gamut of legal provisions as the basic question relating to jurisdiction of this Court was involved. It was emphatically urged before us that the meaning and scope of the term Hudood must be determined as this term has not been defined by the Constitution. It was also urged that the purpose of creating Federal 973 Shariat Court be also examined from different perspectives in order to fully appreciate the extent of jurisdiction and power of this Court. Consequently the following revised consensus issues were struck for the purpose of adjudication of basic questions in relation to the subject matter under examination. CONSENSUS ISSUES (a) What is the meaning and scope of the term Hudood with particular reference to clause (1) of Article 203-DD of the Constitution? 974 (b) What is the meaning of the term Jurisdiction and Judicial Power and what is the extent of jurisdiction of the Federal Shariat Court in matters relating to the enforcement of Hudood under Article 203-DD of the Constitution? (c) Can the mandate of Article 203-DD of the Constitution, which confers exclusive jurisdiction upon the Federal Shariat Court to examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood, be nullified by legislative instruments like the Act of 975 2006; (d) Are not sections 11 and 28 of the Act violative of Article 203-DD of the Constitution as the overriding effect of both the Hudood laws, duly fortified by constitutional provisions, has been repealed? (e) Can the Federal Shariat Court be barred by a subordinate judicial pronouncement from granting bail to or cancelling bail of an accused before or during trial for offences covered by the term Hudood? 976 (f) Are not sections 48 and 49 of Act XXV of 1997 violative of Article 203-DD in so far as the forum of Appeal and the power to transfer cases provided therein vest in the High Courts and not Federal Shariat Court? (g) Are not sections 25 and 29 of the Act violative of the Injunctions of Islam because the Islamic provisions of Lian as contained in sub-sections (3) and (4) of Section 14 of Ordinance (VIII of 1979) have been illegally repealed apart from adding clause (vii)(a) Lian in section 2 of Act VIII of 1939? 977 (h) How are punishments and offences classified according to Islamic teachings and what categories of offences are within the ambit of Hudood and hence within the exclusive jurisdiction of the Federal Shariat Court? (i) What is the meaning of Jurisdiction and Judicial Power with particular reference to the Federal Shariat Court as envisaged by Articles 203-D and 203-DD of the Constitution? (j) Conclusions; 978 (k) Declaration by the Court. It might as well be stated here that except the issues framed above in relation to the specific legal instruments, we do not propose considering other legal provisions mentioned in the four Shariat Petitions. We are leaving these provision for future date whenever any questions is raised before the Court. JURISCONSULTS INVITED 5. In view of the importance of the 979 questions involved we decided to invite jurisconsults to render assistance to this Court on the above-mentioned questions. As a next step we proceeded to issue notices to the following jurisconsults:-- (i) Dr. Hafiz Muhammad Tufail (ii) Dr. Muhammad Tahir Mansoori (iii) Dr. Allama Muhammad Hussain Akbar (iv) Hafiz Abdur Rehman Madni 980 (v) Dr. Sajid-ur-Rehman Siddiqui. Only two jurisconsults responded to our call. Dr. Allama Muhammad Hussain Akbar from Lahore submitted written comments which were placed on record while Dr. Hafiz Muhammad Tufail from Islamabad appeared personally and apart from submitting written comments also addressed the Court. 6. Raja Muqsat Nawaz Advocate and Ms. Syeda Viquar-un-Nisa Hashmi Advocate appeared to assist the Court on the aforementioned issues. The lady lawyer was encouraged for the additional reason that a 981 female human right activist had opted to participate in these deliberations. WRITTEN RIPOSTE OF RESPONDENTS 7. The Federal Government, respondent No. 1, initially submitted written statement on 15-10-2008. This reply was focused on the contents of Shariat Petition No.9/I of 2004. However learned counsel submitted that this very reply be read in other three petitions under consideration. Respondent No.1 finally submitted additional written comments on 5-7-2010 in which various preliminary objections were raised. These objections are however not relevant for our 982 discussion as we are not determining the questions relating to the Zina (Enforcement of Hudood) Ordinance, 1979 as agitated in Shariat Petition No.9/I of 2004. 8. Learned counsel appearing on behalf of Province of the Punjab also referred to the comments already submitted in Shariat Petition No.9/I of 2004 with the request that the same be read as reply in the connected matters under discussion in this Court. Learned Counsel appearing on behalf of the other three Provinces stated that they endorse the view point of the Federal Government and own the comments filed in Shariat Petition No.9/I of 2004. In fact the learned counsel for the respondents, on 983 every date of hearing, stated that they had nothing else to add. The learned counsel also stated that since the question of construction of various Injunctions of Holy Quran and Sunnah as well as the question of jurisdiction of this Court was involved in these cases so they would be seeking guidance from this Court rather than dilating upon or elucidating the Injunctions of Islam from their end. It was further submitted that they would abide by the decision given therein. It was however made clear to the learned Counsel of the five answering respondents that the comments already submitted by them related only to Shariat Petition No.9/I of 2004 wherein the main thrust was against 984 Ordinance VII of 1979 but the questions requiring determination in this judgment had been condensed in the consensus issues. 9. The objection raised by learned counsel for respondent No.1 about the language employed by petitioner in paragraphs 17, 22, 23 and 25 of his Shariat Petition No.9/I of 2004 is valid. The objection is upheld. The office is directed to delete the objectionable lines from the text of the petition. The petitioner is present in court. He has been told that irrelevant and irresponsible matters should be eschewed in solemn proceedings. 985 10. Respondent No.2 Province of Balochistan did not file any written comment. Oral arguments were also not advanced. It was stated by the learned counsel for the Province of Balochistan that the comments submitted by Federal Government have also been adopted by them. 11. Mr. Aziz-ur-Rehman Khan learned Counsel representing respondent No.3, Khyber Pukhtoon Khwa, in the written statement dated 17-5-2010 submitted that Shariat Petition No.9/I of 2004 merits dismissal as it has raised hypothetical 986 questions. 12. Respondent No.4, Province of the Punjab, in the written comments, submitted in Shariat Petition No.9/I of 2004, inter-alia raised the preliminary objections that the provinces are not necessary parties and that the petitioner has completely ignored the Ahadis of Holy Prophet PBUH and that self coined meanings have been given by the petitioner to various legal provisions which are contrary to judicial pronouncements. 13. Learned counsel for respondent No.4, challenged the petitioner's contention 987 which pertains to Ordinance VII of 1979. As stated above we are not examining the provisions of that Ordinance. As regards the objection relating to LIAN; the plea of Province of the Punjab was that "the grounds of divorce are the subject-matter of Dissolution of Muslim Marriages Act, 1939, therefore the provision relating to lion were deleted from Hudood Laws and were made part of Dissolution of Muslim Marriages Act, 1939 and the said statutory amendments have not violated any fundamental rights guaranteed by the Constitution." 14. Learned counsel for respondent No.5, Province of Sindh, submitted that he had 988 adopted the comments filed by respondent No.4, Province of the Punjab. However written comments on behalf of Sindh Government were received only in Shariat Petition No. 9/I of 2004. These comments consist of the three following lines:- "It is respectfully prayed that the respondent No.5 adopts the comments filed by respondent No.4 in the above petition". AREAS OF CONTENTION 15. Learned counsel appearing on behalf of 989 petitioners in other three petitions raised the following contentions: (a) That the omission of sections 3, 4, 6, 10, 16, 18, and 19 of Ordinance VII of 1979 and amendments effected in sections 8, 9, 17 and 20 ibid as well as omissions of sections 10 through 13, 15, 16 and 19 of Ordinance VIII of 1979 and amendments in sections 2, 4, 6, 8, 9, 14, 16 and 17 ibid as well as insertion of new sections in the Pakistan Penal Code by virtue of sections 2 through 8 of Act VI of 2006 and corresponding amendments in Schedule II of the Code of Criminal Procedure is violative of the Injunctions of Islam. 990 (b) That the purpose achieved by these amendments was to limit the jurisdiction of the Federal Shariat Court which decided appeals/revisions against conviction/acquittal recorded under Ordinances Nos.V11 and VIII of 1979 in relation to the offences stipulated originally in the four Hudood Ordinances. These amendments it is urged, contravene Constitutional provision contained in Article 203-DD apart from being mala fide; (c) That the words "The High Court" occurring in (i) subsection (3) of section 991 5, (ii) clause (9) of subsection (1) of section 14 and the words "the High Court" occurring in clause (1) and the words "the Supreme Court" occurring in clause 2(b) of section 25(a) of the West Pakistan Family Courts Act, 1964 be substituted for the words "Federal Shariat Court." It was also contended that the provisions of Muslim Family Laws are covered by the meaning and scope of the term Hudood as is evident from various Ayaat of Holy Quran. (d) That subsection (5) may be added in section 14 of the West Pakistan Family Courts Act, 1964 to empower the Federal Shariat Court to exercise 992 revisional jurisdiction within ninety days over the appellate orders passed by the District Court in any cases as provided in clause (h) of submission (1) of section 14 (ibid). A provision be also added to transfer all the appeals, pending in the High Courts, to the Federal Shariat Court. (e) That appeals against convictions, recorded under the Control of Narcotic Substances Act, 1997 (Act No.XXV of 1997), should lie before the Federal Shariat Court as the sale, purchase, manufacture and use of narcotics was hit by the mischief of Prohibition as envisaged by Hudood Laws. 993 (f) That the practice of invoking the jurisdiction of High Courts in the event of grant or refusal of pre-arrest and post-arrest bail application during investigation and trial stage was violative of Article 203-DD of the Constitution; and (g) The scope of the term Hudood is very wide and covers not only all categories of offences relating to property, human body, human dignity and honour but also family matters of a civil nature. In this context it was urged that the categories of offences as well as 994 civil matters relating to family life, be also identified which fall within the ambit of the term Hudood. It was asserted that the purpose of creating Federal Shariat Court be also examined, and lastly it was maintained; (h) That the above mentioned points have been raised additionally for the reason that Article 203-DD of the Constitution stipulates that the Federal Shariat Court shall have such other jurisdiction as may be conferred on it by or under any law. As stated above we made it clear to the 995 learned counsel for petitioners as well as petitioner in Shariat Petition No.9/I of 2004 that this judgment will dispose of the questions enumerated in the consensus issues. Challenge to the other provisions will be taken up in appropriate proceedings at some other occasion if so required. 16. The Jurisconsult, in addition to the seven pages opinion expressed in the written comments, made the following submissions:- (i) That the purpose of amending the Hudood Laws through Act VI of 2006 was only to deprive the Federal Shariat 996 Court of its constitutional jurisdiction; (ii) That the amendments introduced in Hudood laws are motivated by extraneous considerations; (iii) That the Protection of Women Act, 2006 (Act No.VI of 2006) should be adjudged as being violative of the Injunctions of Islam; (iv) That the scope of the term Hudood is wide enough to cover various categories of offences affecting human body, property, qazf, honour, including 997 extra-marital activity and (v) That the institution of Federal Shariat Court has not only to be preserved but strengthened with additional power. 17. After hearing contentions of the parties certain questions were posed. Raja Muqsit Nawaz Khan, Advocate and Syeda Viquarun-Nisa Hashmi, Advocate as well as the representatives of the parties and the jurisconsult, in response to the questions posed by the Court on 26-10-2010 agreed that: 998 (i) Exclusive Jurisdiction conferred by constitutional provisions can neither be curtailed nor regulated by subordinate legislation; (ii) The determination of meaning and scope of the term Hudood as well as the exercise to identify the categories of offences and civil matters regarding the life of Muslims which fall in the ambit of Hudood is the sole preserve of Federal Shariat Court; (iii) All the matters connected with or the steps leading upto the commission of offences covered by Hudood ipso facto 999 fall within the jurisdiction of the Federal Shariat Court; (iv) The Federal Shariat Court, as mandated by Article 203-D of the Constitution, is the only forum to examine any law or provision of law or any custom or usage having the force of law on the touch stone of Injunctions of Islam; and (v) That adjudication upon bail matters in cases covered by Hudood is certainly ancillary to the trial, appellate and revisional jurisdiction and hence cognizable by Federal Shariat Court. 1000 18. It may be mentioned here that the second round of arguments in this case was necessitated on account of the sudden demise of Justice Doctor Mahmood Ahmad Ghazi. The Bench was therefore reconstituted by the Hon'ble Chief Justice. Fresh notices were issued to the parties for 26-10-2010. The rehearing took place at the principle seat on 26-10-2010 and also on 23-11-2010. The parties recapitulated briefly the various arguments already advanced by them along with fresh input which has been duly noted for consideration. 1001 SCOPE OF DISCUSSION 19. Before proceeding to discuss the consensus issue it may be reiterated that out of the four Shariat Petitions, linked with each other for disposal, Shariat Petition No.9/I of 2004 was delinked on the request of petitioner. It will be heard separately at some future date. The three remaining Shariat Petitions are being disposed of in this judgment only on matters enumerated in the consensus issues. Cognizance is not being taken of the other legal provisions agitated in these petitions. Questions beyond the consensus issues are being left with the consent of parties for a future date in appropriate proceedings as and when 1002 situation arises. I therefore proceed to analyze and discuss the issues framed with the consent of parties. ISSUES Nos. (a, and c) HUDOOD: MEANING AND SCOPE 20. Issues (a) and (c) relates to determination of the meaning and scope of the term Hudood and the nature as well as extent of the mandate contemplated in Article 203DD. The reason to formulate and discuss these issues is evident from the text of Article 203DD of the Constitution of 1003 Islamic Republic of Pakistan itself. The said Article reads as follows:- (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be 1004 released on bail or on his own bond pending the examination of the record. (2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused 1005 unless he has had an opportunity of being heard in his own defence. (3) The Court shall have such other jurisdiction as may be conferred on it by or under any law". (Emphasis added) 21. An analysis of Article 203-DD indicates that: (i) the Federal Shariat Court has the exclusive jurisdiction to call for and examine the record of; 1006 (ii) any case decided by any criminal court under any law relating to .F the enforcement of Hudood; (iii) for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by and as to the regularity of any proceedings of such Court; (iv) the order under examination by the Federal Court or challenged before it may be in the nature of grant or refusal of bail by the trial Court; 1007 (v) and the Court may for that purpose call for the record of the case; (vi) while so doing the Court may suspend execution of the sentence; (vii) direct release on bail or on his own bond if the accused is in confinement pending examination of record; and further; (viii) the Federal Shariat Court may, as a result of examination of record pass such order as it may deem fit; 1008 (ix) and may even enhance the sentence subject of course, to notice. 22. It is therefore clear that the exclusive jurisdiction of the Federal Shariat Court, mandated by the Constitution, revolves around the term "the enforcement of Hudood." For this reason we now proceed to discover the meaning and the scope of the term Hadood as well as Tazir as both the terms have throughout centuries been employed in the criminal administration of justice in Islamic polity. 1009 23. The word "Hudood" is plural of the word Hadd. Literally the word Hadd means prevention, impediment, barrier, bounds and limit. In the Holy Quran this word has been used in a very wide sense covering various aspects of our mundane life. This word occurs a number of times in the sacred texts and with the passage of time it has acquired the status of a legal term particularly in the field of administration of criminal Justice. It is now a well recognized component of the chapter relating to crime and punishment in Islamic Jurisprudence. This term, in its essence, connotes Divine Injunctions which prescribe parameters for human action in certain spheres of life. These injunctions have consequently the 1010 effect of regulating the areas of human choices and freedoms. There are zones of human activity where the lawgiver has allowed choice or what may be termed as freedom of action to human beings and in other places the addressee of the commandment i.e. the obligee is required to strictly follow the mandated provision. 24. The term Hudood finds mention in fourteen different Ayaat of Holy Quran. These Ayaat identify multifaceted aspects of our mundane existence. In order, therefore, to fully grasp the significance of the term Hudood, it will be instructive to examine the said 14 Ayaat of Holy Quran as well as the sayings of the Holy Prophet, 1011 PBUH, on the subject. The translation of the related text, from both the sources, is being detailed below for a proper appreciation of the meaning and scope of the term Hudood. Part A below refers to Injunctions of Holy Quran while Part thereafter pertains to the traditions of Holy Prophet (PBUH). Discussion on the meaning and scope of the term Hudood will be undertaken thereafter in Part C entitled HUDOOD AND TAZIR while concluding deliberation on these issues. PART -A QURANIC INJUNCTIONS 25. 1012 25. Ayah 187 Surah 2 (al-Baqrah) Holy Quran: "It has been made lawful for you to go in to your wives during the night of the fast. They are your garment, and you are theirs. Allah knows that you used to betray yourselves and He mercifully relented and pardoned you. So you may now associate intimately with your wives and benefit from the enjoyment Allah has made lawful for you, and eat and drink at night until you can discern the white streak of dawn against the blackness of the night; then (give up all 1013 that and) complete your fasting until night sets in. But do not associate intimately with your wives during the period when you are on retreat in the mosques. These are the (Hudood Allah) bounds set by Allah; do not, then, even draw near them. Thus does Allah make His Signs clear to mankind that they may stay away from evil." Ayah 229 Surah 2 (Al-Bagrah) of Holy Quran. The term Hudood has been employed four times in this Ayat:-- "Divorce can be pronounced twice: then, either honourable. retention or 1014 kindly release should follow. (While dissolving the marriage tie) it is unlawful for you to take back anything of what you have given to your wives unless both fear that they may not be able to keep within the bounds set by Allah. Then, if they fear that they might not be able to keep within the bounds set by Allah, there is no blame upon them for what the wife might give away of her property to become released from the marriage tie. These are the bounds set by Allah; do not transgress them. Those of you who transgress the bounds set by Allah are indeed the wrong-doers." iii. Ayah 230 Surah 2 (Al-Bagarah) of Holy 1015 Quran. The term Hudood has been used twice here:-- "Then, if he divorce her (for the third time, after having pronounced the divorce twice), she shall not be lawful to him unless she first takes another man for a husband, and he divorces her. There is no blame upon them if both of them return to one another thereafter, provided they think that they will be able to keep within the bounds set by Allah. These are the bounds of Allah which He makes clear to a people who have knowledge (of the consequences of violating those bounds)". 1016 iv. Ayaat 1 through 12, 13 and 14 Surah 4 (An-Nisa) of Holy Quran:-- Ayaat I through 12 deal with: (a) equality of human beings; (b) handing over of property to orphans; (c) marriage with orphan girls; (d) mandatory bridal gift; (e) guardianship of mentally efficient persons; (f) inheritance shares and division of estate; 1017 (g) Zihar and Divorce. "These are the bounds set by Allah. Allah will make him who obeys Allah and His Messenger enter the Gardens beneath which rivers flow. He will abide there for ever. That is the mighty triumph." "And he who disobeys Allah and His Messenger and transgresses the bounds set by Him - him shall Allah cause to enter the Fire. There he will abide. A humiliating chastisement awaits him." v. Ayah 97 Surah 9 (At-Taubah) of Holy 1018 Quran:-- "The Bedouin Arabs surpass all in unbelief and hypocrisy and are most likely to be un-aware of the limits prescribed by Allah in what He has revealed to His Messenger. Allah is Allknowing, All-Wise." vi. Ayah 112 Surah 9 (At-Taubah) of Holy Quran:- "Those who constantly turn to Allah in repentance, who constantly worship Him, who celebrate His praise, who go 1019 about the world to serve His cause, prostrate them-selves before Him, who enjoin what is good and forbid what is evil, and who keep the limits set by Allah. Announce glad tidings to such believers." vii. Ayah 4 Surah 58 (Al-Mujadalah) of Holy Quran:-- "And he who does not find a slave (to free),shall fast for two months consecutively before they may touch each other, and he who is unable to do so shall feed sixty needy people. All this is in order that you may truly believe in 1020 Allah and His Messenger. These are the bounds set by Allah; and a grievous chastisement awaits the unbelievers." viii. Ayah 1 Surah 65 (At-Talaq) of Holy Quran. The term Hudood has been used twice in this Ayah: "O Prophet, when you divorce women, divorce them for their waiting-period, and compute the waiting period accurately, and hold Allah, your Lord, in awe. Do not turn them out of their homes (during the waiting period) nor should they go away (from their homes) - unless they have committed a 1021 manifestly evil deed. Such are the bounds set by Allah; and he who transgresses the bounds set by Allah commits a wrong against himself. You do not know: may be Allah will cause something to happen to pave the way (for reconciliation)." 26. In the above mentioned Nusoos of Holy Quran, the term Hudood has been clearly and explicitly used in the sense of commandments or injunctions ordained by Allah. These injunctions have to be enforced in a Muslim society. The significant thing to be noted is that the term Hudood stands doubly sanctified because it has been specifically termed as Hudood 1022 Allah. It signifies that these limits have been prescribed by Allah. This is a reminder in the peculiar style of Holy Quran because as Creator of human specie He has honoured every human being with valuable freedoms which according to His Command have to be protected in the larger interests of human welfare, amity and peaceful social conditions. Though the entire Holy Quran is, no doubt, a revelation from Allah, yet the reason for relating this particular term to His Own Self was to make it emphatically clear, particularly to the agencies assigned the task of promulgation and implementation of laws and administration of justice, that utmost care has to be observed in matters relating to adjudication 1023 of human rights in an Islamic society because any violation of these rights would be tantamount to transgressing the limits prescribed by sacred texts. It is in this sense that the protect of human rights has to be appreciated because violation thereof has been made cognizable as Hudood offences by Holy Quran. 27. Ayah 103 Surah 10, Younas, of Holy Quran contains a Divine Commitment that Allah will save the believers but at the same time Ayah No.95 of the same Surah warns the believers not to be among those who defy the Ordinances of Allah because such rejecters shall be losers in the end. This is what is repeated in Ayah 47 Surah 30, Ar1024 Rum of Holy Quran which declares that Allah shall help the believers but this Divine indulgence is subject to their obedience and compliance with Injunctions of Islam. Ayah 182 Surah, 'Al-Aaraf, repeats the warning in the following words:-- "We lead them (the rejecters of Divine Commandments) step by step to an end (whose condition they know not)" It is pertinent to refer to yet another principle enunciated in Ayah 42 Surah 8, AlInfaal, of Holy Quran. This is a principle of universal significance. It states:1025 "That who perished might perish by a clear proof and he who survives might survive by a clear proof." PART-B SUNNAH OF HOLY PROPHET PBUH 28. Detailed below are the traditions of the Holy Prophet (PBUH) wherein the term Hadood finds mention: (I would not feel sorry for one who dies 1026 because of receiving a legal punishment, except the drunk.) (Sahih al Bukhari, Kitab al Hudood,Vol. VIII, Hadith No. 769) (They used to inflict the legal punishments on the poor and forgive the rich) Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No. 778. Traditions No.1916,1917 volume 2 Sahih Muslim report the same tradition on the authority of other companions. Tradition No.967 volume 3 Sunan Abdu Daud also narrates on the authority of 1027 another companion. (Do you intercede (with me) to violate one of the legal punishment of Allah.) (Sahih al Bukhari, Kitab al Hudood,Vol. VIII, Hadith No. 779) ("O 'Allah's Apostle! I have committed a legally punishable sin please inflict the legal punishment on me.) Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No. 812) 1028 (Nobody should be flogged more than ten stripes except if he is guilty of a crime the legal punishment of which is assigned by Allah.) Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No. 831) (No. punishment exceeds the flogging of the ten stripes except if one is guilty of a crime involving a legal punishment prescribed by Allah.) (Sahih al Bukhari, Kitab al Hudood, Vol. VIII, Hadith No. 832). (Do not flog anyone more than ten stripes except if he is involving Allah's 1029 legal punishment. ") (Sahih al Bukhari, Kitab al Hudood,Vol. VIII, Hadith Nos. 833, 1744, 1745 and 1746. This tradition has also been reported at serial No.1966 volume 2, Sahih Muslim. Tradition No.1078 volume 3 Abu Daud has also narrated on the authority of other companions.) viii. Traditions Nos.969 and 970 Sunan Abu Daud are to the effect that faults of good people may be forgiven except Hudood; and ix. Tradition No.1976 volume 3 Sunan Abu Daud contains the commandment that 1030 Hadd punishment be not inflicted in Mosques. 29. The scope of Hudood is the prohibitions imposed by Allah or His Apostle PBUH. The sanctity attached to Divine prohibition is best I illustrated by the following tradition recorded in Sahih Muslim in KitabulMasoqat, Bab Akhz ul Halal wa Tarkat Shubahat, contains the following Tradition. (Nu'man b. Bashir (Allah be pleased with him) reported: I heard Allah's Messenger (May peace b upon him) as having said this (and Nu'man pointed towards his ears with his fingers): what 1031 is lawful is evident and what is unlawful is evident, and in between them are the things doubtful which many people do not know. So he who guards against doubtful things keeps his religion and honour blameless, and he who indulges in doubtful 'things indulges in fact in unlawful things, just as shepherd who pastures his animals round a preserve will soon pasture them in it. Beware, every king has a pasture (preserve) and the pasture (exclusive domain) of Allah is His Ordinance of prohibition. Beware, in the body there is a piece of flesh; if it is sound, the whole body is sound, and if it is corrupt the whole body is corrupt, and hearken it is the heart. 1032 PART C HUDOOD AND TAZIR 30. The term Hadd and its plural Hudood, as used in the above mentioned traditions of the Prophet of Islam (PBUH), indicates that it has been employed in the sense of punishment prescribed by the Messenger of Allah (PBUH). The essence of the well known Hadith of the Holy Prophet (PBUH) reported in Sahih Bukhari, and other authorities is that: 1033 "Earlier nations had perished simply because punishment (Hadd) was imposed only when a lowly commoner had committed a crime but influential persons were spared the agony of punishment." In this Hadith, the term Hadd very clearly refers to the general punishments for different categories of offences. This aspect establishes, in turn, that the word Hadd in the administration of criminal justice in an Islamic society includes (any) specific punishment awarded or prescribed under or in pursuance of an Injunction of Holy Quran or Sunnah. It may be profitable to refer to a Tradition quoted by Hazrat Umar 1034 R.A. recorded by Muslim as Hadith No.269 in Kitab Salat ul Musafareen wus Qasarha. According to this report many nations were exalted because they followed the ordinances prescribed in the Book while many nations perished on account of nonobservance of Divine edicts. 31. The Muslim jurists, during the period when the judicial system was evolving in the light of and on the foundation of the teachings of Islam, deemed it expedient to classify punishments on the basis of proof and the nature of proof for proper and effective administration of justice. This reasoning was based upon sacred text because Holy Quran in addition to 1035 prescribing penalty also made reference to the nature of proof. This classification provided guidelines to the judges who were assigned the task of holding trials of different kinds of offences. These offences entailed punishments prescribed by Holy Quran, Sunnah, as well as any punishment prescribed by State in .matters related with Hudood or ancillary or akin thereto. The first category was called Hadd par excellence, while the latter came to be known as Tazir. The purpose of assigning a new title to the latter category of punishment was only to emphasize the standard and immutable nature of the punishments under the title Hudood, as ordained by Holy Quran and Sunnah. 1036 32. This classification of punishments into Hadd and Tazir was made primarily for pedagogical purposes. This classification was never meant to be taken to limit the wider scope of the term Hudood. The Sunnah provides ample evidence to establish the broad space the term Hadd commands, as is evident also from the sayings of the Holy Prophet (PBUH) quoted in Part-B supra. This classification of punishments into Hadd and Tazir cannot be separated administratively or dissociated at academic level. This is because punishments are interrelated and provisions dealing with one crime and its consequent punishment is dove-tailed with 1037 other punishments related to the same matter or same transaction. A person may be found guilty of multiple crimes in the same episode. Similarly if the standard of proof required in a particular category of offence is not forthcoming but the facts and circumstances of the case are a conclusive pointer towards, the guilt of the accused, then punishment by way of tazir in a matter relating to Hudood or akin thereto may be awarded. In such a situation it is not practicable to remand the case for a fresh trial to a court specially created only to award Tazir punishment. Similarly it would be futile to prosecute an accused under parallel laws in separate jurisdictions or under two parallel systems. This is neither 1038 judicially viable nor is it in the interest of justice. Such a thing would work to the serious disadvantage of accused and would certainly be a source of delay, irritation, unnecessary embarrassment as well as uncalled for harassment for the accused. The witnesses for the prosecution will suffer equally on account of multiple litigation. This methodology of altering the finding while maintaining or reducing the sentence is now a universally recognized principle which finds mention in the criminal jurisprudence of Pakistan in the shape of sections 423(i) and 439 of the Code of Criminal Procedure. 33. It will thus be appreciated that it is 1039 because of sanctity of human body that punishment is inflicted only when transgression takes place. Islam therefore proposes punishments in certain cases to set a precedent that whenever a penalty is to be proposed in future, in the uncovered field, it must have legal sanction i.e, it must be prescribed by an authority competent to impose the punishment. It is in this situation that the penalty can become a legal punishment which in turn will be covered by the term Hadd/Hudood. Reference the principle of Hablin minum Nass as enunciated in Ayat 112 Sura 3, AleImran of Holy Quran. 34. This explains the reason why the jurists 1040 enlisted a limited category of offences within the scope of the term Hadood. It is meaningful to note that the chapters dealing with Hudood in the juristic literature relating to Hadith and Fiqh do not deal exclusively with offences whose punishment has been fixed by Holy Quran, Sunnah or Consensus. The unequivocal mass of traditions and consequent legal opinion of jurists as well as the judge made law, spread over centuries, deal with all kinds of punishments whether ordained_ by Holy Quran, Sunnah, Ijma or enforced by temporal authority through the instrument of State, judicial hierarchy and legal experts. It is therefore abundantly clear that any federal or provincial law which authorizes 1041 any court, other than Federal Shariat Court, to exercise appellate/revisional jurisdiction in matters relating to or akin to Hudood would be violative of Article 203-DD of the Constitution and every decision or order passed by such a court would be coram non judice. The term tazir, whenever applied in relation to the offences which partake of Hudood offences or are analogous to or auxiliary or supplementary to Hudood offences would also be covered within the scope and definition of Hudood. The reason is obvious: Had the requisite evidence, prescribed for Hadd, been made available to the prosecution in relation to a matter which, for some reason, has to be treated as a tazir case or in another situation had 1042 the impugned action been completed, that would have certainly been dealt with and punished as a Hadd case. 35. I am consequently of the considered view that all those acts, preparatory or otherwise, which contribute towards the commission of a Hadd crime, for which specific punishment has not been provided in Shariah, also becomes cognizable as a Hadd offence. All tributary streams leading to the reservoir of Haraam have been plugged by Islam. The term La Taqrabu i.e., do not even go near: has been used by Holy Quran at number of places in relation to Hudood. Ayat 15 Sura 6, Al-Anam says:-1043 And do not even draw near Al-Fawahish (the shameful things) be they open or secret. All extra-marital sexual relationships, sodomy, nudity, false accusations of unchastity, and taking a woman as a wife who had been married to one's father, are specifically reckoned as "shameful deeds." According to Hadith, theft, taking intoxicating drinks and begging have been characterized as Fawahish, like several other brazenly indecent acts. 1044 Man is required to abstain from them both openly and in secret Ayat 32 Sura 17, Bani Israeel may also be perused in this context: Do not even approach Fornication for it is an outrageous act, and an evil way. Ayah 43, Surah 4, An-Nisa directs the believers not to draw near to the Prayer while they are intoxicated. 36. The words used in Article 203-DD are: "relating to the enforcement of Hudood." Like the words "in respect of" or "with reference to" employed in some statutes, 1045 these words have a wider meaning and connotation. The words "relating to" includes all those matters which pertain to the realm of preparation, intention, attempt and all conceivable steps taken towards the commission of an offence. Such steps and actions on fulfillment, have the potential of being covered by the penalty of Hudood if the requisite evidence, prescribed for proof of Hadd, is made available. Short of that proof the action complained of becomes punishable as tazir for an offence which is of the specie of Hadd. Tazir punishment is in lieu of Hadd and is not the consequence of a separate category of offence. 1046 37. The basic reason for retaining the offence of fornication etc. in the Hudood Laws of 1979 was that Tazir as punishment is invariably awarded in such cases because the proof in these offences depends either upon circumstantial evidence or upon production of less than four adult male Muslim witnesses without undergoing the process of Tazkia al Shahood. Such an eventuality presupposes that the case is either of the category of circumstantial evidence or less than the required oral testimony. There may be no direct evidence which however would not be conclusive proof that the offence of Zina had not taken place. It is the mode and manner of proof of the offence alone that determines whether 1047 the punishment has to be awarded as Hadd or Tazir. An occurrence of rape, brought to the notice of the Holy Prophet PBUH, was decided on the solitary statement of the victim and the punishment provided for Hadd was awarded even though the case fell clearly under the category what we now call Tazir. It therefore follows that whether it is a case of consensual extra-marital sexual activity, or rape or incestuous adultery or any related pursuit ancillary and akin to or leading upto extra-marital sexual activity, the investigation, enquiry or trial of such a matter is covered within the scope of the term enforcement of Hadd and hence in the exclusive jurisdiction of Federal Shariat Court. 1048 38. A legal instrument which bars a court from taking cognizance of offences or hearing appeals and revisions not only affects the jurisdiction of the court but seriously jeopardizes the fundamental right of an aggrieved person to have access and recourse to speedy justice. Jurisdiction conferred by a constitutional provision cannot be erased by ordinary piece of legislation. It is an accepted principle of law that jurisdiction of superior court cannot be taken away except by express words. In particular a jurisdiction or power conferred by constitutional apparatus can be taken away only through an express constitutional amendment and nothing short of that. An 1049 ordinary statute cannot take away powers of a superior court conferred by Constitution. Such a statute is ex-facie discriminatory. 39. On the civil side the term Hudood includes (a) Marital life, (b) the mandatory bridal gift commonly known in our country as Haq-e-Mehr, (c) Inheritance, 1050 (d) Guardianship of person and property of minors and persons with defective legal capacity, (e) Marriages (in particular polygamy), (f) Divorce including Khula and Ziher and (g) Inheritance. From amongst these matters we have taken suo motu notice only of sections 5, 14 and 1051 25A of West Pakistan Family Courts Act, 1964 as well as section 29 of Act VI of 2006 whereby new clause vii a, liar: has been added in section 2 of the Dissolution of Muslim Marriages Act, 1939. 40. In this view of the matter it is being held that those offences, whose punishment was either prescribed or left undetermined but it relates to acts forbidden or made cognizable by Holy Quran, Sunnah, Consensus or by subsequent legislative instruments including all those acts which according to the Statute Book of Pakistan are akin, auxiliary, analogous or supplementary to or germane with Hudood offences including preparation or abetment 1052 or attempt to commit such offences, would, without fail, fall within the meaning and scope of the term Hudood. Proceeding arising out of a private complainant, crime report registered with police as F.I.R., information laid before a Magistrate by a person other than a police officer or upon its motion by a judicial officer or judicial proceedings arising out of an interim order or final verdict of acquittal or conviction in relation to an offence covered by the term Hudood, whether in the form of an appeal, revision or reference, would fall within the jurisdiction of Federal Shariat Court. The category of offences that are covered by the term Hudood will be determined in detail while discussing issue (h) in this 1053 judgment. It may be stated here that the fact that legislation in Muslim societies in the uncovered field has been made permissible as is evident from the principle Hablin Min un Naas enunciated in Ayat 112 of Sura 3 Ale Imran. The word Habal does not only mean rope but it also means Command and mandate. The State is therefore competent to promulgate laws to implement and enforce Injunctions of Islam. ISSUE No. (d) OVERRIDING CLAUSES OMITTED 1054 41. Section 11 of Act VI of 2006 has omitted section 3 of Ordinance VII of 1979. Section 3 before repeal read as follows:-- . 3. Ordinance to override other Laws.--The provision of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force," Section 28 of the said Act has omitted the similar text contained in section 19 of Ordinance VIII of 1979. Both the omitted sections had given overriding effect to the provisions of Ordinances VII and VIII of 1979. These were Non-obstante clauses 1055 which had created exceptions. This protective cover to the Hudood Laws of 1979 was further strengthened by Chapter 3A, Part VII of the Constitution which had introduced Article 203-A in the Constitution from 26`h May, 1980. Thereafter Article 203-DD in the present form, was incorporated in the Constitution in the year 1982. Section 3 and section 19 of the said two Hadood Ordinances thus acquired constitutional protection which could not have been repealed/omitted or even amended by Act VI of 2006. Moreover the effect of sections 11 and 28 of the Act is to curtail the constitutional jurisdiction guaranteed in Article 203-DD of the Constitution and this step cannot be legally 1056 undertaken through ordinary legislation. The effect of constitutional protection can be altered only through constitutional amendment and not otherwise. As a result thereof the introduction of sections 11 and 28 of the Act is an unwarranted inroad in the legislative domain and consequently an unlawful interference in the enforcement of Hudood. Hence it is being held to be repugnant to the Constitution as well as Injunctions of Islam. Section 3 of Ordinance VII of 1979 and section 19 of Ordinance VIII of 1979 shall be deemed not to have been repealed and are hereby declared as valid and essential part of the two Hudood laws. ISSUE NO. (e) 1057 JURISDICTION IN BAIL MATTERS 42. Bail matters in Hudood cases, during investigation or during trial, are initially decided by the Court of Sessions which is seized of the matter. An order granting or refusing bail was, as per practice after 1980, challenged before the High Courts. The reason for not moving the Federal Shariat Court, the Court which had appellate and revisional jurisdiction in all Hudood cases, was the existence of a judgment delivered by a learned single Judge of the Lahore High Court in the case of Muhammad Rafiq and others Versus The State, PLD 1980 Lahore 1058 708 at page 718 wherein the extent of jurisdiction of the High Court under section 498, Cr.P.C. in matters relating to Hudood offence was discussed. It was held that jurisdiction of the High Court was not ousted by any specific provision or by necessary intendment. The learned single Judge had essentially relied upon the erstwhile text of Article 203-DD of the Constitution which, on 8th September 1980 i.e., the date of announcement of the said High Court single judge judgment, was to the following effect: "The Court shall have such other jurisdiction as may be conferred on it by or under any law." 1059 This Article was, however, substantially amended subsequently. The amended text, reproduced in an earlier paragraph of this judgment, was introduced in the Constitution with effect from 22nd March 1982 by virtue of Constitution (Second Amendment) Presidential Order No.5 of 1982 whereby the above-mentioned original text of Article 203-DD was retained as clause three in the amended Article 203DD. Consequently this precedent, on account of the said constitutional amendment of a later date lost its relevance as from 22nd March, 1982. The case of Muhammad Rafique, supra, ought to have been revisited in the light of the 1060 constitutional amendment. It was not done. Anyhow it is being over-ruled now to make thing clear. The ouster of jurisdiction particularly of a superior court has to be stated in very clear terms. The jurisdiction vesting in a court by virtue of constitutional provisions undoubtedly stands at a higher level. It cannot be curtailed by routine legislation. Moreover the constitutional bar mandated by Article 203-G of the constitution needs careful consideration. According to this Article "no court or tribunal including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the powers or jurisdiction of the court". The word used in 1061 this Article is "proceedings". This word has been interpreted in the case of Zahoor Elahi Versus State PLD 1977 SC 273 wherein it was held that "proceedings" do not mean proceedings which have already been concluded. The word "proceedings" includes all matters connected with or ancillary to the trial of a person charged before a special tribunal including the matters relating to grant of bail. It was further found that when "proceedings" conclude, they result in an "order" or "sentence". In this context it is worth mentioning that Article 203-DD has employed the following four words: (a) finding, 1062 (b) sentence, (c) order and (d) proceedings. The word order includes both final and interlocutory order (p.310 of the said report). Since an order, whether final or otherwise, of the Sessions Court, trying a Hudood matter, can be challenged under constitutional provision before the Federal Shariat Court alone, the remedy to move the Federal Shariat Court by way of appeal was consequently made available under Hudood laws to a person aggrieved of an order of trial court. He could file an appeal against final order and a revision in certain 1063 other matters before the Federal Shariat Court because the Sessions Court was holding or had held the trial relating to Hudood offence. It may be profitable also to refer again to page 313 of the said report wherein it was held that the jurisdiction conferred upon the courts by Constitution overrides all laws. Reliance was placed on the case of Malik Ghulam Jilani Versus Government of Pakistan PLD 1967 Supreme Court 373 and Government of Pakistan Versus Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14. It can therefore be rightfully stated that the power exercised by the Federal Shariat Court under the Constitution overrides all laws. Article 203A states that the 1064 provisions of Chapter 3A of Part VII of Constitution shall have effect notwithstanding anything contained even in the Constitution. 43. The matter of bail is related with the offence. Bail is applied for by an accused only when an offence is alleged to have been committed. If an offence is covered by Hudood the trial takes place under the law relating to Hudood. The appeal or revision in such proceedings is therefore within the cognizance of Shariat Court. The order of grant or refusal to grant in such offence is therefore part of proceedings of trial of Hudood cases and hence cognizable by Federal Shariat Court alone. 1065 44. As a consequence of what has been stated above issue (e) is answered in the negative. The result of the discussion is that an order on an application for grant or refusal of bail by trial court in all categories of offences within the ambit of Hudood is covered by the term proceedings, as employed in Article 203 DD and hence within the scope of the term "any case", "any criminal court" and "under any law" and therefore can be impugned only before the Federal Shariat Court which hat the exclusive jurisdiction in all sorts of matters related with enforcement of Hudood. No other court, including a High Court, will, in future, entertain 1066 proceeding relating to bail in offences covered by the term Hudood. ISSUE NO.(f) STATUS OF ACT XXV OF 1997 45. Sections 9, 48, 49 and 51 of the Control of Narcotic Substances Act, 1997 (Act XXV of 1997) are also under consideration of this Court. The reason for examining these provisions is because of the fact that cultivation of narcotic plants or possession, sale, purchase, use, import; export, and manufacture of narcotics is 1067 covered by the term Hudood as all categories of intoxicants are prohibited on account of Injunctions of Islam. A larger Bench of this Court in the case of Muhammad Aslam Khaki v. Federation of Pakistan PLD 2010 FSC 191 at page 205 (Paragraphs 18 and 19) held as under:-- "It may be mentioned that though the word "Khamr" which was normally used for wine, literally means what obscures the intellect and thus it includes other intoxicant drinks made from wheat, barely, raisins and honey. The Prophet (PBUH) extended the prohibition of wine etc. to all intoxicants, in any form. In this regard 1068 we find innumerable categorical statements from the Prophet (PBUH) mentioned in so many Traditions. (See Bukari, `Wudu', 71 `Maghazi', 60, `Ashribah', 4, 10, `Adab', 8, `Ahkam', 22, Muslim, `Ashribah' 67-9; Abu Daud, `Ashribah', 5, 71; Ibn Majah, `Ashribah', 9, 13, 14; Darimi, `Ashribah', 8,9; Muwatta", `Dahayat', 8: Ahmed b. Hanbal, Musnad, Vol. 1, pp. 274, 289, 350, Vol. 2, pp. 16, 158, 171, 185, 329, 501; Vol. 3, pp.66, 112, 119, 361, Vol. 4, pp. 4, pp.41, 416; Vol. 6, pp. 36, 71, 72, 97, 131 and 226-Ed). (Emphasis added) As stated above, the Prophet (PBUH) 1069 further enunciated principles: the following (a) whatever causes intoxication when used in large quantity is prohibited, even in a small (sic). (b) If a large quantity of something causes intoxication, to drink even a palmful of it is prohibited; (See Abu Daud, `Ashribah', 5; Ibn Majah, Ashribah;, 10; Ahmed B. Hambal, Musnad, Vol. 2, pp.167, 179 and Vol.3, p. 343-Ed)." 1070 Section 2(s) and (t) of Act XXV of 1997 defines "narcotic drug" and "opium." Section 4 through section 9 as well as setions 48, 49 and 51 of this Act make provision as follows:- (i) Section 4: Prohibition of cultivation of narcotic plants; (ii) Section 5: Punishment contravention of section 4; for (iii) Section 6: Prohibition of Possession of narcotic drugs etc. 1071 (iv) Section 7: Prohibition of import or export of narcotic drugs etc. (v) Section 8: Prohibition on trafficking or financing the trafficking of narcotic drugs etc. (vi) Section 9: Punishment for contravention of sections 6, 7 and 8; (vii) Section 48: Appeal; (viii) Section 49: Transfer of cases; 1072 (ix) Section 51: No bail to be granted in respect of certain offences; Section 48 states that an appeal against the order of a Special Court comprising a Sessions Judge or an Additional Sessions Judge shall lie to the High Court whereas section 49 ibid confers the power to transfer (within its territorial jurisdiction) a case from one Special Court to another Special Court. It has already been held 'in this judgment exclusive jurisdiction was conferred upon Federal Shariat Court in all matters relating to enforcement of Hudood under Article 203DD of the Constitution. Chapter 3A in Part VII of the Constitution relates to the Federal Shariat Court. The 1073 first Article of this Chapter is non obstante in nature. Article 203G states that "no court or tribunal including Supreme Court and a High Court shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction in respect of any matter within the power or jurisdiction of the Court." 46. Section 48 ibid provides that an appeal against conviction by a Special Court would lie in the High Court. But offences relating to narcotics/intoxicants falls within the ambit of Hudood. This is an anomalous position and not capable of rational justification. This incongruous aspect is well illustrated in the case of Muhammad Boota 1074 and others v. The State 2002 YLR 1142, decided by a Division Bench of the Lahore High Court on an appeal against conviction recorded by Special Court Sargodha constituted under the Anti-Terrorism Act, 1997 when the charge framed was for abduction and Zina bil Jabr under section 10(4) read with section 11 of Offence of Zina (Enforcement of Hudood) Ordinance, VII 1979. The offences in this case are obviously related to Hudood but the appeal against the final judgment delivered by Special Court ATA, Sargodha was moved before the High Court under section 25 of Anti-Terrorism Act, 1997. The appeal had in-fact to be filed before the Federal Shariat Court because Constitution has conferred 1075 exclusive jurisdiction upon Federal Shariat Court in all Hudood related offense. The Federal Government, however in exercise of its power under section 34 of Act XXVII of 1997, amended the Schedule vide Notification No.SRO 663(i)/97 dated 21-81997 and brought certain Hudood offences within the jurisdiction of the Special Court without corresponding amendment in section 25 of Act XXVII of 1997 by adding a proviso that appeals in Hudood matters would lie before the Federal Shariat Court. This omission violated the constitutional provision contained in Article 203-DD. In this view of the matter it becomes crystal clear that the offences relating to narcotic drugs are within the purview of Hudood and 1076 consequently an order, final or interim including grant or refusal of bail, passed by any court, special or ordinary, under any law, regarding an offence relating to Hudood is within the jurisdiction of the Federal Shariat Court and no other court, including a High Court, has the power to entertain bail matter or an appeal or revision in any such matter. Consequently the text of sections 48 and 49 of Act XXV' of 1997 has now to be suitably amended to restore jurisdiction of Federal Shariat Court in matters relating to enforcement of Hudood. No legal instrument, other than constitutional amendment, as stated earlier, can limit or ignore the exclusive jurisdiction of Federal Shariat Court 1077 mandated under Article 203-DD of the Constitution. Similarly if an offence of the nature of Hudood is tried under AntiTerrorism Act, 1997 (Act No. XXVII of 1997) the appeal in all such cases under section 25 of Act XXVII of 1997 or for that matter bail under section 21-D ibid shall lie before the Federal Shariat Court and not a High Court. Consequently the following two steps will have to be taken to set the matter right:-- a. words Federal Shariat shall be substituted for the words High Court occurring in Sections 48(i) and 49(i) of Control of Narcotic Substances Act, 1997 (Act XXV of 1997) and 1078 b. a rider will have to be put in section 25 of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) to state that appeal in cases relating to Hudood shall lie to the Federal Shariat Court. Any order, interim or final, passed by a Terrorist Court constituted under Act XXVII of 1997, in relation to a Hadd offence, shall be appealable or revisable only before the Federal Shariat Court. The wordings of section 25 Act XXVII of 1997 should be suitably amended to make it clear that a High Court shall have jurisdiction in all cases under the Act except Hudood matters. The above findings shall become operative after the specified 1079 period. The basic reason is that no legal instrument other than a Constitutional provision can limit the jurisdiction of Federal Shariat Court. 47. In this view of the matter and for reasons recorded under Issues (a) through (d) as well, this issue is answered in the affirmative. Sections 48 and 49 of Act XXV of 1997 and section 25 of Act XXVII of 1997 are hereby held to be violative of Article 203-DD to the extent that R the jurisdiction of the Federal Shariat Court is ousted in matters relating to grant of bail or hearing appeals or ordering transfer of cases from one court to another court in cases registered or charged with Hudood 1080 offences. ISSUE NO.(g) LIAN 48. Section 25 of the Act has repealed subsections (3) and (4) of section 14, Ordinance VIII of 1979 and section 28 of the Act adds clause (vii a) Lian in section 2 of the Dissolution of Muslim Marriages Act, 1939. Both the interpolations have altered the legal composition of the institution of Lian which developed on the basis of express injunctions of Holy Quran contained 1081 in Ayaat 4 through 9 of Surah 24, An-Nur. Section 14 of Ordinance VIII of 1979 had in fact given legislative effect to an Injunction of Islam. The effect of repealing subsections (3) and (4) of Section 14 of Ordinance VIII of 1979 is to stifle the operation of an Injunctions of Holy Quran relating to the enforcement of Hudood which is not only repugnant to the injunctions contained Ayaat 44, 45 and 47 of Surah 5 and Surah An-Nur but is also a clear violation of Article 203DD of the Constitution. Similarly section 28 of the Act becomes repugnant to the Quranic Injunctions because as soon as the Tian proceedings conclude the following results ensue: 1082 (i) the husband is punishment for accusation, not liable for 'making false (ii) the wife is absolved of the calumny and (iii) on account of such a serious breach between the couple, the court without further proof or additional proceedings, declares the marriage to be dissolved with all legal consequences of a valid divorce. 49. It is time that attention is paid to the 1083 style in which Surah An-Noor was revealed. It opens with the words: "This is a Sura which WE have revealed and the Ordinance which WE have Made obligatory The emphasis on the mode and style of revelation lends added importance to the injunctions contained in the Surah. This is extra-ordinary way adopted by Holy Quran. Like Shirk the illicit sex and false accusation, against chaste woman have been dealt with seriously. Even though the whole of Quran 1084 is Divine Revelation yet the revelations in Surah Nur have been specifically declared as His revelation. In this view of the matter the repeal effected by the Act is in utter violation of the Injunctions of Islam as mentioned above. ISSUE NO.(h) CLASSIFICTION OF PUNISHMENTS AND OFFENCES COVERED BY HADOOD 50. This issue deals with categories of punishment that can be awarded under Islamic Jurisprudence. This issue will be 1085 discussed in two parts. Part-A will deal with classification of punishments and Part-B will deal with Offences covered by the term Hudood. The punishments may therefore be classified as under:-- A. CLASSIFICATION OF PUNISHMENTS 51. i. Primary Punishments, i.e. Punishments prescribed for homicide, fornication, adultery, theft, etc. These punishments are prescribed by NASS wherein the Judge has no discretion in deciding the nature and quantum of sentence when the case has been proved; 1086 ii. Substitutory Punishments: i.e. cases where instead of primary punishments, discretionary penalties can be sanctioned by State and awarded by courts; iii. Consequential Punishment: It is in the nature of an additional penalty consequent upon commission of an independent but cognizable offence; e.g. when a killer on proof of his guilt, by operation of law, is also deprived from inheriting the estate of the victim whose death was caused by his criminal act i.e. the act of the prospective heir, or where the property recovered from a thief is directed by the court to be 1087 restored to its real owner; iv. Maximum or Minimum Punishment: i.e. a situation where the Judge exercises discretion, in given circumstances and facts of a particular case not covered by primary punishments, to award maximum or minimum penalty i.e. a penalty between the two extremes; v. Discretionary Punishments: i.e, instances where the Judge has the discretion even to let off an accused after administering rebuke or he may award any other appropriate sentence in the facts and circumstances of the case; 1088 vi. Section 53 of the Pakistan Penal Code was substituted as a result of the process of Islamization of laws initiated under Article 227 of the Constitution through the medium of Criminal Law (Second Amendment) Ordinance, 1990: (Later on it became permanent law as Act 11 of 1997) and the following ten categories of punishments, duly recognized by Islamic Jurisprudence, were incorporated therein. Firstly Secondly Thirdly Fourthly Qisas Tazir Diyat Arsh 1089 Fifthly Sixthly Seventhly Eighthly Ninthly Tenthly Daman Death Imprisonment for life Imprisonment of either description, namely:(i) Rigorous with hard labour; (ii) Simple Forfeiture of Property; Fine. As noted elsewhere these amendments in the Penal Code were the consequence of certain verdicts of the Federal Shariat Court 1090 and the recommendations made by Council of Islamic Ideology. 52. Section 299 occurring in Chapter XVI of the Pakistan Penal Code, entitled: of Offences Affecting The Human Body, defines Arsh, Daman, Ikrah-e-tam, Ikrah-eNaqis, Qatl, Qisas and Tazir. It is worth noting that section 299 of Pakistan Penal Code, inter alia, defines Qisas. The various definitions are detailed below:-- "299 Definitions.---In this Chapter, unless there is anything repugnant in the subject or context,-1091 (a) "arsh" means the compensation specified in this Chapter to be paid to the victim or his heirs under this Chapter; (b) "daman" means the compensation determined by the Court to be paid by the offender to the victim for causing hurt not liable to arsh; (c) "diyat" means the compensation specified in Section 323 payable to the heirs of the victim; 1092 (d) "Government" means the Provincial Government; (e) "ikrah-e-tam" means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or zinabiljabr; (f) "ikrah-e-naqis" means any form of duress which does not amount to Ikrah-i-tam; 1093 (g) "gatl" means causing death of a person; (h) "qisas" means punishment by causing similar hurt at same part of the body of the convict as he has caused to the victim or by causing his death if he has committed Qatl-e-amd, in exercise of the right of the victim of a wali. (Emphasis Added) The definition of Qisas adopted by Pakistan Penal Code is indicative of the fact that the retributive punishments prescribed by Holy 1094 Quran have been enforced as Hudood under the criminal jurisdiction in the courts of Pakistan. In this view of the matter the appellate or revisional jurisdiction over trials in cases of injuries against human body would be the exclusive domain of Federal Shariat Court. The word Hadd has also been defined in the Enforcement of Hudood Laws of 1979. Different kinds of hurts and punishments, as prescribed by Islamic teachings, are also included in this newly added Chapter XVI of the Penal Code. Section 338-F ibid, occurring in this chapter, additionally mandates as follows:- "Interpretation:-In the interpretation and application of the provisions of this 1095 Chapter, and in respect of matters ancillary or akin thereto, the court shall be guided by the Injunction of Islam as laid down in the Holy Quran and Sunnah. "(Emphasis Added) It is in this background that the expanse of the term enforcement of Hudood as used in Article 203-DD of the Constitution has to be appreciated, understood and interpreted. It is now time to analyse the term enforcement of Hudood. 53. In the field of criminal law, the Holy Quran has employed the term QISAS as retaliatory punishment for certain 1096 categories of offences against human body. The punishments are mentioned in the revealed text. Hence these are INJUNCTIONS and have to be implemented. This is also a constitutional obligation. The following Ayaat of Holy Quran will illustrate the point:- "(i) Ayah 178 Surah 2 (Al-Baqarah) "Believers! Retribution is prescribed for you in cases of killing: if a freeman is guilty then the freeman; if a slave is guilty then the slave; if a female is guilty, then the female. But if something of a murderer's guilt is remitted by his 1097 brother this should be adhered to in fairness, and payment be made in a goodly manner. This is alleviation and a mercy from your Lord; and for him who commits excess after that there is a painful chastisement." (ii) Ayah 179 Surah 2 (Al-Baqarah) "People of understanding, there is life for you in retribution that you may guard yourselves against violating the law." (iii) Ayah 194 Surah 2 (Al-Baqarah) 1098 "The sacred month for the sacred month; sanctities should be respected alike (by all concerned). Thus, if someone has I attacked you, attack him just as he attacked you, and fear Allah and remain conscious that Allah is with those who guard against violating the bounds set by Him." (iv) Ayah 45 Surah 5 (Al-Maidah) "And therein We had ordained for them: "A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an 1099 ear, and a tooth for a tooth, and for all wounds, like for like. But whosoever foregoes it by way of charity, it will be for him expiation." Those who do not judge by what Allah has revealed are indeed the wrong=doers." (Emphasis Added) 54. It may be useful to refer to Ayah 24 Surah 4, An-Nisa of Holy Quran, at the risk of repetition, which proclaims that the commandments given by Allah in the Holy Quran have a binding force upon the believers. This declaration comes at the end of the list of prohibitions prescribed by Holy Quran. This edict cannot be ignored and has to be taken seriously. 1100 55. Let us now revert to the term Hadd/Hudood as used in various legal instruments in force in Pakistan. The term Hudood has been employed in Article 203DD (1) of the Constitution but this term, it appears, has purposely not been defined therein. It indicates clearly that this question was left for the Federal Shariat Court to define because this very clause proceeds to confer exclusive jurisdiction upon this Court to deal with matters relating to Hudood. Moreover, the Constitution has created only one forum under the designation Federal Shariat Court, which has the exclusive jurisdiction (Article 203-D) to examine the question 1101 whether any law is repugnant to the Injunctions of Islam. It is therefore the domain of the solitary constitutional institution, known as Federal Shariat Court, to lay down what the law on the subject is. Reference may be made to the case. of Asma Jilani versus Gove 'nment of the Punjab, reported as PLD 1972 Supreme Court 139 Justice Yaqub Ali (as his Lordship then was) at page 230 held as under:- "Law" was not defined in the Constitution. It is, therefore, for the Courts to lay down what "law" is, and if any decree, or behest of Yahya Khan expressed as a Martial Law Order, Martial Law Regulation or Presidential 1102 Order, or Ordinance, does not conform to the meaning of the term `law' in Article 2 these Regulations, Orders and Ordinances will be void and of no legal effect." (Emphasis Added) It is thus the domain of Superior Courts to assign meanings to those words and terms which, used technically by jurists, and employed in legislative instruments, have been wilfully left undefined by legislature. The definition of the term Hudood, as may be settled in the light of Injunctions of Islam by the Federal Shariat Court, will therefore determine the meaning of the term as well as the extent of its jurisdiction. 1103 56. The term Hadd as mentioned above, has also been given a meaning in Ordinance VI of 1979, Ordinance VII of 1979, Ordinance (VIII bf 1979) and President's Order No.4 of 1979. This meaning is in tune with the arguments advanced above. According to this definition the term Hadd means a punishment "ordained by Holy Quran or Sunnah ". This definition has not been held to be repugnant to the Injunctions of Islam in the three decades of its application. 57. Chapter 3-A of Part VIII of the Constitution, dealing with the Federal Shariat Court, contemplates very vividly 1104 that the Shariat Court, shall be guided in its decisions and findings by the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Likewise, Article 227 (1) of the Constitution prescribes that all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah and further that no law in future shall be enacted which is repugnant to these injunctions. The ultimate role of examining the vires of an impugned legal instrument on the touchstone of Injunctions of Islam is therefore the exclusive preserve of the Federal Shariat Court as mandated by Article 203D of the Constitution of Islamic Republic of Pakistan. The parliament is 1105 debarred from enacting a law which is repugnant to the Injunctions of Islam. This reality amounts to a declaration in loud terms that the statute book of Pakistan has to be in conformity with the Injunctions of Islam and consequently the term Hudood has, in fact, to be defined in the light of Injunctions as laid down in the Holy Quran and the Sunnah. The term Hudood according to the meaning and scope of various Injunctions of Islam, referred to above, includes every activity which falls directly or indirectly within the mischief of 11 offences tabulated in the next section. 58. In literary and legal parlance some words in the field of law, science, 1106 philosophy etc. assume a wider meaning than the actual dictionary meanings. This is also the case with the expression Hudood. It includes the term Tazir. A parallel may be conveniently drawn from the term viz major or force majeure. The term force majeure according to law lexicons means irresistible force or compulsion; circumstances beyond one's control. The expression force majeure `is not a mere French version of the Latin expression vis major.' The term force majeure has therefore become a term of wide import. Strikes, breakdown of machinery, which, though normally not included the term vis major are included in force majeure. 1107 B. OFFENCES COVERED BY THE TERM HUDOOD 59. It is therefore time to recapitulate the scope of the term Hudood. In the light of the foregoing discussion the following categories of offences are therefore covered sby the term Hudood: (i) Zina = Adultery, Fornication and Rape. (ii) Lawatat= Sexual intercourse against the order of nature; 1108 (iii) Qazaf = 'Imputation of Zina; (iv) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc; (v) Sarqa = Theft simplicitor; (vi) Haraba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code. (vii) Irtdad= Apostacy; 1109 (viii) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and (ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass/Ijma. Abdul Qadir Audah, has discussed to some extent the scope of Hadd .in his treatise Tashree ul Janai al Islam, Volume 1 at page 119. 1110 (x) Human Trafficking. Reference Ayah 90 Surah 16 of Holy Quran where Fhashaa, Munkar and Baghee have been forbidden. 60. It is immaterial for the purpose of the petitions under discussion whether penal provisions relating to Qisas/kidnapping/abduction/ enticing/fornication/adultery/rape/unnatural offences/prostitution/buying or selling a person for sexual purposes; theft/Haraba/Drinking alcoholic liquor or 1111 sale, purchase, manufacture, import or export or possession of intoxicants/Narcotic, alcoholic liquors of various categories, theft, extortion, waging war against state or offences against human body, false imputations, etc, are retained in Pakistan Penal. Code, or `President's Order No.4 of 1979, Ordinance VI of 1979, Ordinance VII of 1979, Ordinance VIII of 1979, or even Control of Narcotic Substances Act No. XXV of 1997 Prevention and Control of Human Trafficking Ordinance, 2002 (Ordinance LIX of 2002) or any other legal instrument for the time being in force. What is material is that all such offences relating to enforcement of Hadd as ordained by Holy Quran and 1112 Sunnah are within the exclusive jurisdiction of the Federal Shariat Court before or after the trial has been initiated or completed by any criminal court (of course under any law) and no. other court would exercise appellate or revisional powers over such criminal cases initiated either on police report or by way of complaint direct in the court or at the instance of the Court itself. 61. In the case of Dr. Muhammad Aslam Khaki v. Federation of Pakistan reported in PLD 2010 FSC page 191 a Bench consisting of four Hon'ble Judges of the Federal Shariat Court, after considering different view points found that a sin does not mean Haram only. There is no doubt in the mind 1113 of any Muslim that Quran and Sunnah shall always serve as a sure guide in determining what are major sins. In many societies sins are distinguishable from crimes but in some cultures sins are inseparable from crimes. In an Islamic society sins are crimes and not separate entities. In the said report it was also held in paragraph 24 that the State is duty bound to enforce that which is prohibited and inflict requisite punishment to the transgressors. ISSUES Nos.(b) and (i) JURISDICTION AND JUDICIAL POWER AND JURISDICTION 1114 62. We consider it expedient to examine this issue relating to the Judicial power, Jurisdiction and allied matters as these points are intrinsically related to Issues Nos. (b) and (c) discussed above. This issue will therefore be discussed under 08 following distinct heads:- A. JURISDICTION IN GENERAL B. NATURE OF ARTICLE 203-DD C. REVISIONAL JURISDICTION CUM APPELLATE 1115 D. TERMS: ANY CASE, ANY COURT, ANY LAW E. TERM: ENFORCEMENT OF HUDOOD F. FOUNDATION ARTICLE 203D G. DECISIONS COURT OF AND SCOPE FEDERAL H. FEDERAL SHARIAT COURT COUNCIL OF ISLAMIC IDEOLOGY. OF SHRIAT AND 1116 A. JURISDICTION IN GENRAL 63. Jurisdiction is the right to hear and determine and the result of this exercise is the judgment of the Court. Deniels v. Tarney, 102 U.S. 415, 26 L.ED. 187. 64. Justice Hamood-ur-Rehman, Hon'ble Chief Justice Supreme Court of Pakistan, in the case of State Versus Zia-ur-Rehman PLD 1973 Supreme Court 49 at pages 69-70, explained the scope of the terms "Judicial Powers" and "Jurisdiction" in the following words:1117 "So far, therefore, as this Court is concerned it has never claimed to be above the Constitution nor to have the right to strike down any provision of the Constitution. It has accepted the position that it is a creature of the Constitution; that it derives its powers and jurisdictions from the Constitution; that it derives its powers and jurisdictions from the Constitution; and that it will even confine ,itself within the limits set by the Constitution which it has taken oath to protect and preserve but it does claim and has always claimed that it has the right to interpret the Constitution and to say as to what a 1118 particular provision of the Constitution means or does not mean, even if that particular provision is a provision seeking to out the jurisdiction of this Court. This is a right which it acquires not de hors the Constitution itself. It is not necessary for this purpose to invoke any divine or super-natural right but this judicial power is inherent in the Court itself. It flows from the fact that it is a Constitutional Court and it can only be taken away by abolishing the Court itself. In saying this, however, I should make it 1119 clear that I am making a distinction between "judicial power" and "jurisdiction". In a system where there is a trichotomy of sovereign powers, then ex-necessitate rei from the very nature of things the judicial power must be vested in the judiciary. But what is this judicial power. "Judicial Power" has been defined in the Corpus Juris Secundum, Vol. XVI, Paragraph 144, as follows:- "The judiciary or judicial department is an independent and equal coordinate branch of Government, and is that branch thereof which is intended to interpret, construe, and apply the law, or 1120 that department of Government which is charged with the declaration of what the law is, and its construction, so far as it is written law. " (Emphasis added) This power, it is said, is inherent in the judiciary by reason of the system of division of powers itself under which, as Chief Justice Marshal put it, "the Legislature makes, the executive executes, and the judiciary construes, the law." Thus, the determination of what the existing law is in relation to something already done or happened is the function, of the judiciary while the predetermination of what the law shall be for the regulation of all future cases 1121 ,falling under its provisions is the function of the Legislature. It may well be asked at this stage as to what is meant by "jurisdiction"? How does it differ from "judicial power"? Apart from setting up the organs the Constitution may well provide for a great many other things, such as, the subjects in respect of which that power may be exercised and the manner of the exercise of that power. Thus it may provide that the Courts set up will exercise revisional or appellate powers or only act as a Court of a cessation or only decide Constitutional issues. It may demarcate the territories in which a 1122 particular Court shall function and over which its Writs shall run. It may specify the persons in respect of whom the judicial power to hear and determine will be exercisable. These are all matters which are commonly comprised in what is called the jurisdiction of the Court. It expresses the concept of the particular res or subject matter over which the judicial power is to be exercised and the manner of its exercise. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court. " 1123 In this very report the Hon'ble Chief Justice at page 70 was pleased to hold as under:-- "In exercising this power, the judiciary claims no supremacy over other organs of the Government but acts only as the administrator of the public will. Even when it declares a legislative measure unconstitutional and void, it does not do so, because, the judicial power is superior in degree or dignity to the legislative power; but because the Constitution has vested it with the power to declare what the law is in the cases which come before it. It thus merely enforces the Constitution as a paramount law whenever a legislative 1124 enactment comes into conflict with it because, it is its duty to see that the Constitution prevails." 65. The Supreme Court of Pakistan in its Appellate Jurisdiction, in the case of Dr. Munawar Hussain v. Dr. Muhammad Khan, District Health Officer, Sargodha and two others, reported as 2004 SCMR 1462 (at page 1466) and PLJ 2005 SC 64 (at pages 67, 68) while dilating upon the question of jurisdiction of the Federal Shariat Court held as under: "Article 203-A of the Constitution provides that the provisions of this 1125 Chapter i.e. Chapter 3-A relating to Federal Shariat Court shall have effect notwithstanding any thing contained in the Constitution meaning thereby that provisions of this Chapter containing Article 203-A to Article 203-J have overriding effect on the other provisions of the Constitution. Article 203-G of the Constitution imposes bar on the jurisdiction of the Courts and Tribunal including the Supreme Court and the High Court to entertain any proceedings or exercise any power or jurisdiction in respect of the matters within the power or jurisdiction of the Federal Shariat Court, as such, the High Court neither had the jurisdiction under Section 5611126 A, Cr.P.C. nor under Article 199 of the Constitution in the matter which fell within the jurisdiction of the Federal Shariat Court, as such, the jurisdiction exercised by the High Court under Article 199 of the Constitution after conversion of quashment petition, was coram non judice. It may be noted that the Federal Shariat Court had already directed the trial Court vide its judgment dated 11-5-1994 passed in Criminal Revision No.110-L of 1993 to issue process against Dr. Muhammad Khan respondent and to decide his case along with other respondents in accordance with law. This judgment which was rendered by the three Hon'ble Judges of 1127 the Federal Shariat Court was binding on the High Court and all other Courts subordinate to it under Article 203-GG and a Single Judge in Chambers of the High Court had no jurisdiction to sit in judgment over the judgment of the Federal Shariat Court which had exclusive jurisdiction in the matter and its decision had a binding effect as stated earlier. Since the matter was exclusively amenable to the jurisdiction of the Federal Shariat Court under Article 203-G, therefore, the impugned judgment passed by the Single Judge of the High Court was without lawful authority and of no legal consequence. Consequently, this appeal is allowed, the 1128 impugned judgment of the learned Single Judge in Chambers of the High Court being coram non judice is set aside and the trial Court is directed to proceed with the complaint as directed by the Federal Shariat Court vide its order dated 11-5-1994 and decide the same in accordance with law as expeditiously as possible." 66. In this context perusal of Article 203G would be useful: "Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain 1129 any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court." (Emphasis added) This provision read with Article 203-DD(2) establishes beyond doubt that all offences relating to Hudood are within the exclusive jurisdiction of Federal Shariat Court. All matters connected with Hudood would therefore automatically be included in the jurisdiction of Federal Shariat Court. This is precisely what is meant by enforcement of Hudood as prescribed in Article 203-DD of the Constitution. 1130 67. It is indeed true that all judicial powers are lodged with the judiciary and wide powers have undoubtedly been conferred by the Constitution upon the Federal Shariat Court which include:- (a) To administer punitive and remedial justice to and between parties subject to Constitution and law; (b) To exercise exclusive jurisdiction in matters relating to examination of laws on the touchstone of Injunctions of Islam and in cases relating to Hudood laws; 1131 (c) To exercise the special jurisdiction without further legislative sanction; (d) To define the scope and extent of its jurisdiction within the parameters identified in Chapter 3-A of Part VII of the Constitution; (e) To determine the meaning and' scope of the undefined terms used in Chapter 3-A ibid; (f) To exercise powers of a Civil Court in respect of certain matters; 1132 (g) Authority to conduct its proceedings and regulate its procedure in all respects as it deems fit; (h) To punish its own contempt; (i)To make rules for carrying out the purposes of Chapter 3-A ibid; (j) Exercising such other jurisdiction as may be conferred on it by or under any law; 1133 (k) To call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood; and (l)Exclusive authority and the jurisdiction to examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in Holy Quran and Sunnah. 68. On the question of jurisdiction, the Supreme Court of Pakistan in the case of Asma Jilani v. Government of the Punjab, reported as PLD 1972 Supreme Court 139 at 1134 page 197, held as under:-- "The Courts undoubtedly have the power to hear and determine any matter or controversy which is brought before them, even if it be to decide whether they have the jurisdiction to determine such a matter or not. The Superior Courts are, as is now well settled, the Judges of their own jurisdiction. This is a right which has consistently been claimed by Supreme Court and other Courts of superior jurisdiction in all civilized countries." It may be useful to refer also to the case of 1135 Yousaf Ali Khan v. The West Pakistan Bar Council Tribunal, Lahore PLD 1972 Lahore 404, a Full Bench case of the Lahore High Court, wherein it was held as under:- "It is not possible for the executive to wrest from the judiciary its jurisdiction to interpret any law promulgated in the country. The superior judiciary is clothed with this jurisdiction as a delegate of the sovereign who, in the Islamic Republic of Pakistan, is God Almighty Himself exercising His Will and Sovereignty through the people of this country. It is hardly possible to deny that the making of laws, their implementation by three independent delegates of the sovereign 1136 in respect of its own particular field. The Legislature exercises that delegated sovereign power of the sovereign to make laws and the executive exercises it to implement them, the judiciary does, by interpreting laws made in pursuance of the exercise of the legislative part of the powers of the sovereign by the Legislature. The right of the superior judiciary delegated to it by the sovereign which can neither be curbed nor can it be taken away." 69. It is necessary for a Judge to know the meaning and the scope of the term law because he is under oath to administer law. He should be clear in his mind that the law 1137 under consideration was made by an authority legally competent to make laws. The Federal Shariat Court has the additional but onerous constitutional responsibility to examine whether the impugned law or provision of law is in accordance with Injunctions of Islam. This authority of the Federal Shariat Court is necessary extension of the mandate given in Article 227. of the Constitution. The notion of legitimacy and efficacy therefore becomes relevant because not only the law making authority should be legally competent but the law should be capable of being enforced according to the Injunctions of Islam and the principles established by the Constitution. 1138 70. The ouster of jurisdiction of Federal Shariat Court can be accomplished by only one jurisdictional fact: that the act complained of is not covered by the mischief of an offence covered by the term Hudood. If however the impugned transgression falls in the arnbit of Hudood then the jurisdiction of Federal Shariat Court cannot be ousted. This element is the key to the question of jurisdiction. It is immaterial whether the offence complained of is mentioned in the four Hudood laws of 1979 or any other law. The issue stands settled by the terminology employed in Article 203-DD - any case; any criminal court and under any law. The term any case is 1139 relatable to all such offences which might be covered in the definition of Hudood. All actions which are ancillary or auxiliary or related to or germane to or connected with offences falling in the ambit of Hudood are also included in the term any case related with Hudood. Any case also includes all those cases in which one of the alleged offences is covered by the definition of the term Hudood. It may he mentioned here that the principle identified by the Supreme Court of Pakistan in the case of State v. Khalid Masood, PLD 1996 Supreme Court 42 is that when a matter has been dealt with by the Constitution and it is not subject to any statute then no statute can control or curtail the power conferred upon a superior 1140 court by the Constitution. B. NATURE OF ARTICLE 203-DD 71. Allied with the question of jurisdiction of Federal Shariat Court is the subject regarding determination of the exact scope, and nature of Article 203-DD incorporated in the Constitution. The language employed in this Article shows that a calculated step was taken to give legislative effect to the principles and commandments relating to Hudood enumerated in Holy Quran and Sunnah. While interpreting Article 203-DD of the Constitution of Islamic Republic of Pakistan it becomes imperative to ascertain 1141 the nature of this constitutional provision. Does this Article contain a policy? Does it provide only a guideline? Does it contain a principle of law? The answer goes beyond these questions. An examination of this Article demonstrates that it confers power upon the Federal Shariat Court to exercise jurisdiction in all cases, pending or decided by any criminal court under any law in relation to the enforcement of Hudood. The Hudood laws were in existence and being implemented at the time Article 203-DD was made operational in the Constitution with effect from 22nd March 1982. The analysis of the contents of this Article therefore leads to the irresistible conclusion that the nature of this Article is self1142 executing. Justice Shafiur Rehman in the case of Hakim Khan v. Government of Pakistan, reported as PLD 1992 Supreme Court 595, at pages 633-634 (para 16 of the Report), while approving a passage from Bindra's Interpretation of statutes, observed as under:-- "A Constitutional provision is selfexecuting if it supplies a sufficient rule by means of which the right which it grants may be enjoyed and protected, or the duty which it imposes may be enforced without the aid of a legislative enactment. It is within the power of those who adopt a Constitution to make some of its provisions self-executing, 1143 with the object of putting it beyond the power of the Legislature to render such provisions nugatory by refusing to pass laws to carry them into effect. Where the matter with which a given section of the Constitution deals is divisible, one clause thereof may be self-executing and another clause or clauses may not be self-executing. Constitutional provisions are self-executing when there is a manifest intention that they should go into immediate effect, and no ancillary legislation is necessary to the enjoyment of a right given of the enforcement of a duty imposed. That a right granted by a Constitutional provision may be better or further 1144 protected by supplementary legislation does not of itself prevent the provision by question from being self-executing, nor does the self-executing character of the Constitutional provision necessarily preclude legislation for the protection of the right secured. A Constitutional provision which is merely declaratory of the common law is self-executing. A Constitutional provision designed to remove an existing mischief should never be construed as dependent for its efficacy and operation on Legislature. Constitutional provisions are not selfexecuting if they merely indicate a line of policy or principles, without applying 1145 the means by which such policy of principles are to be carried into effect, or it appears from the language used and the circumstances of its adoption that subsequent legislation was contemplated to carry it into effect. Provisions of this character are numerous in all Constitutions and treat of a variety of subject. They remain inoperative until rendered effective by supplemental legislation. The failure of the legislation to make suitable provision for rendering a clause effective is no argument in favour of selfexecuting construction of the clause. Self-enforcing provisions are exceptional. 1146 The question whether a Constitutional provision is self-executing is always one of intention, and to determine intent, the general rule is that Courts will consider the language used, the objects to be accomplished by the provision, and surrounding circumstances. Extrinsic matters may be resorted to where the language of the Constitution itself is ambiguous." 72. A scrutiny of Article 203-DD of the Constitution consequently illustrates that exclusive powers of judicial nature in relation to matters pertaining to Hudood, a 1147 particular branch of administration of Criminal Justice, have been conferred upon the Federal Shariat Court to: (i) call for and examine the record of (ii) any case (iii) decided by any criminal court (iv) under any law (v) relating to enforcement of Hudood. 1148 The Hudood laws were made part of the Statute Book of Pakistan on 9th February 1979 Chapter 3A entitled Federal Shariat Court was incorporated thereafter as substantive provision in Part VII of the Constitution of Pakistan with effect from 26th May 1980 vide Constitution (Amendment) Order, 1980. The opening provision of this Chapter i.e. Article 203A reads as follows:- "The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution." 1149 73. It is this Chapter which contains Article 203DD. The present text of Article 203-DD substituted the original Article 203-DD vice section 5 of Constitution (Second Amendment) Order, 1982 with effect from 22nd March 1982. The previous text of Article 203-DD was incorporated in the Constitution vide section 4 of the President's Order No.4 of 1980, Constitution (Second Amendment) Order, 1980 with effect from 21st June, 1980 which provided simply that: "The Court shall have such other jurisdiction as may be conferred on it by or under any law." 1150 This very portion has now become clause (3) of Article 203-DD by virtue of President's Order No.5 of 1982. It is therefore amply clear that the four Hudood laws i.e, Ordinance No.VI of 1979, Ordinance No.V1I of 1979, Ordinance No.VIII of 1979 and President's Order No.4 of 1979 had come in force before Article 203-DD was reconstituted in an elaborate manner. In the domain of legislation it is presumed that the legislature is fully cognizant of previous legislation on the given subject. The effect of this amendment i.e, incorporation of clauses (1) and (2) in Article 203-DD in the Constitution is as follows:- 1151 (i) All the offences mentioned in the above mentioned laws fall within the ambit of Hadood; (ii) As such all the offences are within the jurisdiction of Federal Shariat Court; (iii) These offences are no more susceptible to amendment or repeal through an ordinary or routine legislative measure other than amendment of Article 203-DD of the Constitution; (iv) The Constitution did not limit the scope of Article 203-DD to the offences 1152 covered by the said four Hudood laws alone but mandated that the Court shall have, such other jurisdiction as may be conferred on it by or under any law. It was a clear indication that the meaning and scope of the term Hudood is wider than what the four above mentioned Hudood laws have professed. This clause pre-supposes that in due course of time when the scope of the term Hudood has been defined appropriately, the jurisdiction of the Federal Shariat Court will keep on expanding. (v) The Constitution purposely refrained from defining the term "enforcement of Hudood" and left it for the Federal 1153 Shariat Court to spell out the scope of term Hudood for a safe and progressive evolution of law in the light of Injunctions of Islam, and (vi) It was after lapse of a period of five years that it was ultimately decided to incorporate the term Hudood for the first time in the Constitution so that a complete range of offences falling within the purview of Hudood would progressively become part and parcel of the penal law of Pakistan. It is in this way that gradual fulfillment of Islamic tenets becomes possible. 1154 74. During the three decades of its existence, a lot many Articles of the Constitution were amended on as many as 10 occasions and very recently far reaching amendments have been effected through Eighteenth Constitutional Amendment Act which have been made operative from 204-2010. However during this long period, the successive Parliaments did neither disturb the powers conferred upon Federal Shariat Court under Article 203DD nor limit the scope of the term Hudood to the four Hudood laws with the result that this selfexecuting provision, which had become operational in 1982, continues holding the field. It was and continues to be operational and shall remain operational so long as any 1155 criminal court under any law takes cognizance of a matter in the domain of Hudood. The operational character of this Article was never made dependent upon any subsequent legislation or existence of any other condition. The nature of this Article is not at all different from the nature of Articles 184 through 190 as well as Articles 199, 201 and 203 of the Constitution. These are all self contained and self executing provisions of the Constitution. It may be added that the exclusive jurisdiction of the Federal Shariat Court has remained intact throughout. 75. It is, therefore, clear that the words used in any legal instrument relating to the 1156 jurisdiction of the Court, if not defined in the enactment, will be interpreted and construed by the court exercising that jurisdiction. The term law for the purposes of Article 203-D has been defined in clause (c) of Article 203B of the Constitution in the following terms:- (c) "law" includes any custom or usage having the force of law but does not include the Constitution, Muslim personal law, any law relating to the procedure of any court or tribunal or, until the expiration of [ten] years from the commencement of this Chapter, any fiscal law or any law relating to the levy and collection of taxes and fees or 1157 banking or insurance practice and procedure. The scope of the term law will have to be determined by the Court. 76. It is noteworthy that the term Law includes the judge made law. In support of this argument it might as well be stated that Article 189 mandates that the decisions of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts in Pakistan. Article 203-GG of the Constitution straight away directs that the decisions of Federal Shariat Court shall 1158 be binding on a High Court and all Courts subordinate to a High Court. The Constitution does not say that the decision of the Federal Shariat Court shall be binding only if "it decides a question of law or is based upon or enunciates a principle of law." In the case of Kundan Bibi and 4 others v. Walayat Hussain, Controller of Estate Duty, Government of Pakistan, Karachi and another, reported as PLD 1971 Lahore 360 (D.B. case at page 365), Justice Sardar Muhammad Iqbal (as his lordship then was) held that "law" does not mean only the statute law but includes the principles which are laid down by the judicial pronouncements of Superior Courts. Reliance in that report was placed on the 1159 case of Government of West Pakistan, v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 where Justice Hamood-urRehman (as his Lordship then was) held that the term law includes judicial pronouncements laid down from time to time by the superior courts. This constitutional provision as well as the Hudood laws promulgated in 1979 partake of the nature of mandating absolute enactments. These provisions are not directory. An absolute enactment is defined to be an instrument which must be obeyed or fulfilled exactly. It is only in the case of a directory enactment that it may be obeyed substantially. These constitutional provisions confer powers for the 1160 enforcement of Hudood. It would be useful to refer to another related principle which was settled long ago in re-Dudlay Corporation (1882)8 QBD 86 (93,94) by Brett, L.J. wherein it was held that where legislature gives power to do anything, the legislature "means also to give the public body all rights without which the power would be wholly unavailable." C. REVISIONAL CUM APPELLATE JURISDICTION 77. It was hinted at the bar that revisional power and not appellate power was conferred upon the Federal Shariat Court 1161 under Article 203DD of the Constitution meaning thereby that the powers of the Federal Shariat Court are limited. The argument is erroneous. It would be useful to refer to relevant provisions relating to appeals and revisions as incorporated in the Code of Criminal Procedure. 78. Chapter XXXI of Part VII of the Code of Criminal Procedure deals with appeals. Section 404 of the said Code mandates that no appeal shall lie from any judgment or order of criminal court except as provided for by the Code or any other law for the time being in force. Section 412 commands that where an accused person has pleaded guilty and has been convicted by a High 1162 Court, a Court of Session or Magistrate of 1st Class on such plea, there shall be no appeal except to the extent or legality of the sentence. Similarly sections 413 and 414 do not permit appeals from petty cases/certain summary convictions. Section 417 deals with appeals in cases of acquittal. Section 418 concedes that an appeal may lie on a matter of fact as well as matter of law. Section 423 deals with powers of appellate Court in disposing of appeals and section 426 deals with suspension of sentence and release of appellants on bail during pendency of appeal. Section 428 enables the appellate Court to take further evidence itself or direct it to be recorded by the lower court. Under section 431, every 1163 appeal under section 411-A (2) or section 417 shall finally abate on the death of the accused and every other appeal under 'this chapter (except an appeal from a sentence of fine) shall finally abate on the death of appellant. 79. It will be noticed that piecemeal power was given to appellate courts under twenty eight consecutive sections of Chapter XXXI of Part VII of the Code of Criminal Procedure. The power to enhance the sentence was however not provided in the chapter relating to appeals. Chapter XXXII of Part VII of the Code of Criminal Procedure deals with Revisional Jurisdiction. Section 439 singly enables the High Court to 1164 perform any of the powers conferred on a court of appeal by virtue of sections 423, 426, 427 and 428. This section also enables the revisional court to enhance the sentence after providing an opportunity to the accused of being heard. A comparison with Article 203-DD of the Constitution shows that the revisional jurisdiction conferred upon Federal Shariat Court, at constitutional plane, not only encompass at one place the power that are exercised by an appellate Court under different sections of the Code but at the same time, in exercise of the same jurisdiction, the Federal Shariat Court in its capacity as the revisional court, has the additional potential of enhancing any sentence if, after 1165 examination of the record of any case decided by any criminal court, it is convinced that punishment awarded was scanty. It is for this reason that Article 203DD of the Constitution of Islamic Republic of Pakistan conferred revisional jurisdiction alone on the Federal Shariat Court because powers of a revisional Court are much wider than that of the powers of an appellate Court. 80. Section 439 of the Code of Criminal Procedure, authorizes the High Court to enhance the sentence of the convict in the exercise of revisional jurisdiction. The Constitution could have` been content by providing that the Federal Shariat Court will 1166 exercise the same powers as conferred on High Court under section 439 ibid. But it was not done for the obvious reason that section 439 ibid places an embargo on the powers of High Court to convert an order of acquittal into conviction while exercising revisional jurisdiction. In the case of Muhammad Babar v. Muhammad Akram and three others, PLD 1987 Federal Shariat Court 38 (at page 41) it was held that the power of Federal Shariat Court to order retrial remains intact under the constitutional provisions because "the Court may pass such orders as it deems fit." However in appropriate cases, in order to save time, expense, and harassment the Federal Shariat Court may straight away 1167 convict the accused, if after hearing him, it finds that there is sufficient evidence on record to do so (Page 42 of the report). 81. The concept of Appeal is not unfamiliar to the Constitution. Articles 185 and 203-F of the Constitution confer appellate jurisdiction upon the Supreme Court of Pakistan. Article 203-DD of the Constitution does not confer appellate jurisdiction simplicitor upon the Federal Shariat Court. It confers revisional and other jurisdiction. Appeal is a right conferred upon a person by a legislative instrument to move a superior tribunal against an order whereas Revision is a privilege, prerogative, discretion and power conferred upon a Court to examine 1168 proceedings conducted by a lower tribunal. Appeal is re-examination of case at judicial level by a Superior Court. The object of appeal in contradistinction to revision under the Code of Criminal Procedure, is to examine the correctness and legality of the impugned order. The powers vesting in this Court under Article 203-DD of the Constitution with regard to any case decided by any criminal court under any law relating to the Enforcement of Hudood are all in-collusive in nature. A statute may or may not confer a right of appeal but the Constitution has provided a permanent remedy for every aggrieved person to invoke revisional jurisdiction of this Court in appropriate proceedings. Revision is a wider 1169 jurisdiction. This is what the head note of Article 203-DD indicates. The term Revision includes re-examination, re-assessment, careful reading over for correction and improvement. Holy Quran, in Ayah No.90 Surah 16, An-Nahl enjoins Justice tempered with Kindness. The words in the Nass are ADL and IHSAN. The Federal Shariat Court has also to see whether justice, as tempered by kindness, has been done by the trial Court. This power of Adl with Ihsan is not prescribed upon any Appellate Court in the Code of Criminal Procedure. It is therefore abundantly clear that wide powers have been conferred upon the Federal Shariat Court by way of revisional jurisdiction to do complete justice 1170 according to relevant Injunctions of Islam in cases decided by any criminal court under any law relating to the enforcement of Hudood. 82. It would be advantageous at this stage to look up the meaning and scope of the technical term Revision in legal parlance. 83. The term Revision is wider in meaning and scope than the term Appeal. The term Revision also includes revision of statutes which in substance is the re-examination of laws. It is different from an amendment. It implies re-examination and restatement of law. Reference volume 35-A of WORDS and 1171 PHRASES, Permanent Edition. The well known book entitled: STATUTORY CONSTRUCTION by Crawford published by Pakistan Publishing House records at page 184: that the "Legislators are often authorized by constitutional provisions to revise and to restate all the statute law of a general and permanent nature of the State up to a certain date, in corrected and improved form". This legislative function has been conferred on the Federal Shariat Court to undertake examination of laws on the touchstone of the Injunctions of Islam. This is precisely the jurisdiction of the Federal Shariat Court under Article 203-D of the Constitution. The Court at the same time enjoys the jurisdiction under Article 1172 203-D ibid to examine any law on its own motion. There could be cases when the court is called upon to exercise its jurisdiction under both the Articles in one and the same case. This special type of jurisdiction is enjoyed only by the Federal Shariat Court in the judicial hierarchy of Pakistan. 84. In this view of the matter I am of the confirmed view that the absence of the word "appeal" does not in any way limit the widest possible jurisdiction of the Federal Shariat Court conferred upon it by virtue of Article 203-DD of the Constitution which enables it to call for and examine the record of any case decided by any criminal court 1173 under any law relating to the enforcement of Hudood. In fact very wide powers have been conferred upon this Court by virtue of just one Article of the Constitution without enumerating twenty eight sections in quick succession as has been done in Chapter XXXI of Part VII of the Code of Criminal Procedure. The Federal Shariat Court would, in view of this constitutional provision, exercise widest possible jurisdiction in cases decided by any criminal court under any law relating to an offence covered by the term Hudood. All the recognized incidents of the term Appeal have been included in the powers conferred upon Federal Shariat Court by Article 203DD of the Constitution under the so called 1174 title Revision. The Constitution does not concede such broad based revisional powers to the High Courts. The revisional jurisdiction of a High Court is certainly dependent upon an enabling provision in the Code of Criminal Procedure which can be omitted, altered, substituted, or even restricted by ordinary legislative measure. 85. The revisional jurisdiction conferred upon Federal Shariat Court by Article 203DD of the Constitution is not a mere power but is in essence a sacrosanct duty because the said constitutional provision speaks in terms of enforcement of Hudood. Reference in this context may be made profitably to the following seven Nusoos in 1175 quick succession i.e. Ayaat No.43 through 49 Surah 5, Al-Maidah which enunciate the principle:- Enforce the Injunctions of Quran and judge people according to the mandated provisions. This principle has been mentioned seven times in these Ayaat of Holy Quran. This repetitive emphasis is a pointer towards the significance attached to the implementation of Injunctions of Islam. These verses were addressed to the Holy Prophet (PBUH) which means that it is the duty of a Muslim State to enforce these principle/injunctions. 1176 Translation of the said seven Ayaat is as follows:- "Yet how will they appoint you a judge when they have the Torah with them, wherein there is Allah's judgment and still they turn away from it? The fact is, they are not believers." "Surely We revealed the Torah, wherein there is Guidance and Light. Thereby did Prophetswho had submitted themselves (to Allah) - judge for the Judaized folk; and so did the scholars and jurists. They judged by the Book of Allah for they had been entrusted to 1177 keep it and bear witness to it. So, (0 Jews), do not feat' human beings but fear Me, and do not barter away My signs for a trivial gain. Those who do not judge by what Allah has revealed are indeed the unbelievers: " "And therein We had ordained for them: "A life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a .tooth for a tooth, and for all wounds, like for like. But whosoever foregoes it by way of charity, it will be for him an expiation." Those who do not judge by what Allah has revealed are indeed the wrong-doers." 1178 "And We sent Jesus, the son of Mary, after those Prophets, confirming the truth of whatever. there still remained of the Torah. And We gave him the Gospel wherein is Guidance and Light, and which confirms the truth of whatever there still remained of the Torah, and a Guidance and Admonition for the God-fearing." "Let the followers of the Gospel judge by what Allah has revealed therein, and those who do not judge by what Allah has revealed are the transgressors." 1179 "Then We revealed the Book to you, (0 Muhammad), with Truth, confirming what-ever of the Book was revealed before, and protecting and guarding over it. Judge, then, in the affairs of men in accordance with the Law that Allah has revealed, and do not follow their desires in disregard of the Truth which has come to you. For each of you, We have appointed a Law and a way of life. And had Allah so willed, He would surely have made you one single community; instead, (He gave each of you a Law and a way of life) in order to test you by what He gave you. Vie, then, with one another in good works. Unto Allah is the return of all of you; and He will then 1180 make you understand the truth concerning the matters on which you disagreed." "Therefore, judge between them, (O Muhammad), by what Allah has revealed and do not follow their desires, and do not follow their desires, and beware lest they tempt you away from anything of what Allah has revealed to you. And if they turn away, then know well that Allah has indeed decided to afflict them for some of their sins. For surely many of them are transgressors. "(Emphasis added) 1181 It is for the purposes of correcting miscarriage of justice, doing substantial justice, removing any illegality or perversity that the Federal Shariat Court has been clothed with vast powers under the title of Revisional Jurisdiction. One of the fundamental object of this jurisdiction is that the Federal Shariat Court would watch carefully that no Injunction of Islam relating to the enforcement of Hudood is violated in any case by 'virtue of any order or decision by any criminal court exercising power under any law. 86. Existence of law is not sufficient. It is just one aspect of administration of justice. The emphasis of Holy Quran is in fact upon 1182 enforcing the law. Constitution, in particular, has laid emphasis on enforcement of Hudood. Chapter 3A of Part VII is the solitary instance where the Constitution speaks in terms of enforcement. This element of enforcement only in relation to Hudood, according to the Constitution, is the exclusive domain of Federal Shariat Court through revisional jurisdiction. 87. Jurisdiction is the power to hear and determine the cases as well as power to entertain an action or petition or any other proceedings. The term jurisdiction, therefore, connotes authority and power to act in a given matter. The jurisdiction of the 1183 Federal Shariat Court under Article 203-DD not only refers to the power to examine the record of any case pending in a criminal court but also enables it to examine the propriety of any decision or order passed by any criminal court under any law relating to Enforcement of Hudood. The word any means all, each and every case pending or decided and each law under which the criminal Court takes cognizance of a matter. The term any case used in Article 203DD is therefore very wide and includes any matter which is within the initial cognizance of the criminal trial Court. Any case therefore means any matter under any law connected with the Enforcement of Hudood. 1184 88. Even otherwise, as stated earlier, the appellate power over orders passed by Court of Session in matters relating to Hudood, once conferred upon this Court under Ordinance VII of 1979 could not be disturbed through Act VI of 2006 by transferring Hudood Offences to Pakistan Penal Code. This is an inroad by subordinate legislation in the realm of constitutional provisions contained in Article 203-A, subArticles (1) and (3) of Article 203-DD and Article 203-G and consequently of no legal effect. D. TERMS: ANY CASE, ANY COURT AND 1185 ANY LAW 89. The word any has been used four times in Article 203-DD of the Constitution. In clause (1) the words are: "of any case," "any criminal court" and "under any law" while in clause (2) the words used are: "in any case". This calls for determination of meaning of the word any. Mr. Justice Zaffar Hussain Mirza, in the case of Inamur Rehman v. Federation of Pakistan reported as 1992 SCMR 563 at 587, with regard to the meaning of the term ANY observed as follows:- "These expressions are of very wide 1186 amplitude. The term "any" according to the Black's Law Dictionary (Fifth Edition) page 86 means: one out of many; an indefinite number; one indiscriminately of whatever kind or quantity. With reference to case law it has been stated: Word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject-matter of the statute." The word "any" as employed in Article 203DD has been expressed without any qualification. The word any in the context in Article 203-DD would mean: any person, 1187 any court or any law under which a trial or proceedings as regards offences relating to Hudood are being held or have been concluded. The word any is wide enough to include every case, covered by the term Hudood or related to Hudood and would also cover situations when any case is sought to be transferred in the manner and circumstances visualized by sections 526 and 528 of the Code of Criminal Procedure. The three terms i.e. "any law", "any criminal court" and "any law" as used in Article 203DD not only tend to enlarge the amplitude of the term Hudood but lay emphasis on the fact that all type of proceedings related to offences covered by the meaning and scope of the term Hudood would remain 1188 the exclusive preserve of the Federal Shariat Court. There is no earthly reason to exclude any one matter connected with the proceedings under Hudood laws from the jurisdiction of this Court. The term "any" in its meaning and scope, has been discussed inter-alia in the following four precedents which may be consulted to appreciate that the word "any" as used in Article 203-DD is a word of "expansion indicative of width and amplitude sufficient to bring within the scope and ambit of the words it governed, all that could possible be included in them." (i) Ch. Zahoor Elahi MNA v. The State PLD 1977 SC 273 1189 (ii) M. Amjad v. Commission of Income Tax and 2 others 1992 PTD 513 (iii) N.-W.F.P. v. Muhammad Irshad PLD 1995 SC 281 (iv) Commissioner of Income Tax v. Media Network PLD 2006 Supreme Court 787 In conclusion it may be said that term criminal court used in Article 203-DD is not restrictive in the sense as mentioned in section 6 of the Code of Criminal Procedure. 1190 It means any court exercising criminal jurisdiction under any law of the land relating to an offence in the domain of Hudood. The term criminal court extends to every category of Courts, Tribunals or Authorities competent under any law of the land to try and decide cases in which the offence complained of pertains to Hudood. E. TERM: ENFORCEMENT OFHUDOOD 90. Article 203-DD of the Constitution of the Islamic Republic of Pakistan confers revisional and other jurisdiction on the Federal Shariat Court. Following is the text of Article 203-DD. 1191 "[203-DD. (1) The Court may call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by, and as to the regularity of any proceedings of, such court and may, when calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. 1192 (2) In any case the record of which has been called for by the Court, the Court may pass such order as it may deem fit and may enhance the sentence: Provided that nothing in this Article shall be deemed to authorize the Court to convert a finding of acquittal into one of conviction and no order under this Article shall be made to the prejudice of the accused unless he has had an opportunity of being heard in his own defence. (3) The Court shall have such other jurisdiction as may be conferred on it by 1193 or under any law.]" Before we discuss the philosophy and purport of this Article, let us summarize the extent and scope of the powers bestowed upon the Federal Shariat Court by this Article. The following issues appear to have been contemplated: (i) The jurisdiction of the Court in respect of enforcement of Hudood; (ii) The responsibility of the Court to satisfy itself as to the correctness, legality and propriety of any finding, 1194 sentence or order recorded or passed by any court; (iii) The power of the Court to decide the regularity or otherwise of any proceedings related to enforcement of Hudood; (iv) The power of the Court to direct suspension of any sentence awarded in cases relating to Hudood; (v) Power of the Court to release any accused on bail; 1195 (vi) Power of the Court to pass any order it may deem fit in relation to any proceeding related to the enforcement of Hudood; (vii) Power of the Court to enhance any sentence passed by any court in relation to Hudood; and (viii) Any other jurisdiction conferred on the Court by or under any law. A cursory glance over the contents of Article 203-DD clearly establishes that the framers of Chapter 3A of Part VII of the 1196 Constitution perceived a much broader role for the Federal Shariat Court in relation to Hudood. It was an all-inclusive role which is certainly wider than mere customary appellate jurisdiction. Revisional power granted to the High Courts under section 439 of the Code of Criminal Procedure can be interfered with by routine legislative measure through ordinary routine process of amendment or even repeal. A bill, in order to amend the Constitution, is passed only if "votes not less than two-thirds of the total membership of the House", from where the Bill has originated and also "twothirds of the total membership of the House to which it has been transmitted" have been secured as provided in Article 248 of 1197 the Constitution. But this is not the case in relation to other laws which may be amended, repealed or enacted by simple majority. The Constitution has made it certain that the Revisional jurisdiction conferred upon the Federal Shariat Court by it is taken out of the scope of ordinary legislative functions of Majlis-e-Shoora. The Constitution conceded not only wide powers to the Federal Shariat Court but it proceeded to protect these powers from the vicissitude of legislative procedure prescribed under Article 70 of the Constitution. Additionally the Constitution proclaimed that Federal Shariat Court shall have such other jurisdiction as may be conferred upon it by or under any law. The 1198 consequence of this provision of the Constitution is that the 'Government or the Legislature has been restrained firstly from omitting any item from the prescribed jurisdiction of Federal Shariat Court in matters relating to Hudood, and secondly the additional power which may subsequently be included in the jurisdiction of this Court under sub-Article (3) of Article 203-DD will be of the nature that it cannot be taken away by routine legislative measure. The additional jurisdiction, whenever conferred would be saved by constitutional provision. The Constitution commands in unambiguous terms that Federal Shariat Court shall, to the exclusion of any other court in Pakistan, have 1199 exclusive jurisdiction to control, supervise and streamline the process of the enforcement of Hudood under any law by any court or judicial forum. In Article 203DD the term used is "enforcement of Hudood" and not mere Hudood. The word enforce, according to Oxford, Advanced Learner's Dictionary means: to make sure that people obey a particular law or rule, to make something happen or force somebody to do something. The word enforcement consists of two parts. Part one is enforce and part two is ment. The portion ment is a suffix. According to Oxford Dictionary this suffix means: the action or result of. In this context the word enforcement means the action of making sure that people obey the 1200 Islamic law relating to Hudood or the result of making sure that people obey the law. The intent of the authors of this constitutional provision is clear. It confers wider powers and jurisdiction on the Federal Shariat Court so that not only the enforcement or implementation of Hudood law is ensured but judicial guarantee is provided to ensure correctness, legality and propriety as well as regularity of proceedings in relation to the enforcement of Hudood as prescribed by Injunctions of Islam in the administration of criminal justice with a view to protecting Din, Life, Intellect, Progeny and Family as well as the legitimately acquired property of the citizens and the people of Pakistan. The 1201 positive law must be aimed at protecting and advancing the objectives of Shariah so as to achieve a correct and proper enforcement of Hudood. Laws have to be implemented in that spirit. The Constitution authorizes the Federal Shariat Court to interfere and exercise its jurisdiction in any case from any criminal court under any law with a view to ensuring the correctness, legality and propriety of such implementation. The word enforcement has been used by the constitution only in relation to offences relating to or covered by the term Hudood. This is clearly wider expression and includes all those steps which may technically be termed as appellate jurisdiction. 1202 91. Whatever has been stated above demonstrates very clearly that the intent and purport of Article 203-DD is to provide a single and a central judicial forum which should have exclusive jurisdiction of ensuring correct, legal, proper and regular enforcement of the laws of Hudood throughout Pakistan. The word "revisional" appearing in the head note of Article 203DD has not been used in narrow and limited sense but it has been used in a broader sense. The right of appeal is conceded to an aggrieved party whereas Revision is conferring of power, privilege and discretion upon the Court to undertake examination of proceeding of a lower 1203 tribunal on the application of an aggrieved person or on its motion. If this Article is read with Articles 203-G and 203-GG, it establishes beyond any shadow of doubt that revisionary power includes the appellate powers in relation to Hudood laws and the enforcement of Hudood vest in the Federal Shariat Court to the exclusion of any other court in Pakistan. The words "any power or jurisdiction in respect of any matter within the power and jurisdiction of the Court" in Article 203-G makes it abundantly clear that no court will exercise appellate or revisional jurisdiction in matters relating to enforcement of Hudood except the Federal Shariat Court. The power of a High Court to reverse an order of 1204 acquittal into conviction, on appeal, is stipulated only under section 417 of the Code of Criminal Procedure but this power which a High Court enjoys under a legislative instrument is conferred upon the Federal Shariat Court specifically through a superior piece of legislation i.e. the Constitution. The Constitution authorizes the Court to convert an order of acquittal into conviction. The Constitution therefore preserves and consolidates all the legally conceivable powers and jurisdiction in Federal Shariat Court in all matters relating to the enforcement of Hudood which any other court may enjoy collectively as an appellate and revisional court under ordinary law. 1205 92. Be it the Psalms of David, Gospel of Jesus, Tablets of Moses or the Scripture revealed upon Muhammad PBUH, Allah Almighty made His promise abundantly clear that the weak and the oppressed, the meek and the browbeaten shall inherit this earth. Allah was Gracious to those who were oppressed in the land and in His infinite mercy, He made them leaders of humanity and helped them succeed to the resources of this world. The Righteous servants of God, in turn, uphold the guiding principles and permanent values ordained and preserved in the Revelation and come forward to implement the regulations proposed by the Lord Creator. They do not 1206 hesitate to implement and enforce the Injunctions prescribed by Allah. Reference in this context may be made to Ayaat Nos. 133 and 165 of Surah No.6, Ayaat Nos. 100, 130 and 134 of Surah No. 7, Ayah No. 14 of Surah No.10, Ayah No. 57 of Surah No.11, Ayaat Nos. 11 and 105 of Surah 21, Ayah No.55 of Surah 24, Ayah No.62 of Surah 27, Ayah No.5 of Surah 28, Ayah No.39 of Surah 35, Ayah No. 26 of Surah 38, Ayah No.38 of Surah 47, Ayah No.7 of Surah 57, Ayah No.41 of Surah 70. F. FOUNDATION AND SCOPE OF ARTICLE 203-D 1207 93. The basis of Article 203-D can be traced to Ayaat 59 through 65 of Surah 4, An-Nisa. The meaning of these Ayaat is as follows: "O ye who believe! Obey Allah, and obey the Apostle, And those charged With authority among you. If ye differ in anything Among yourselves, refer it To Allah and His Apostle, If ye do believe in Allah And the Last Day: 1208 That is best, and most suitable For final determination." "Hast thou not turned Thy vision to those Who declare that they believe In the revelations That have come to thee And to those before thee? Their (real) wish is To resort together for judgment (In their disputes) To the Evil one, 1209 Though they were ordered To reject him. But Satan's wish Is to lead them astray Far away (from the Right)." When it is said to them: "Come to what Allah hath revealed. And to the Apostle ": Thou seest the Hypocrites avert Their faces from thee in disgust. How, then, when they are 1210 Seized by misfortune, Because of the deeds Which their hands have sent forth? Then they come to thee, Swearing by Allah: "We meant no more Than good-will and conciliation! "Those men,- Allah knows What is in their hearts; So keep clear of them, But admonish them, 1211 And speak to them a word To reach their very souls." "We sent not an Apostle, But to be obeyed, in accordance With the Will of Allah. If they had only, When they were unjust To themselves, Come unto thee And asked Allah's forgiveness, And the Apostle had asked Forgiveness for them, 1212 They would have found Allah indeed Oft-Returning, Most Merciful." "But no, by they Lord, They can have No (real) Faith, Until they make thee judge In all disputes between them, And find in their souls No resistance against Thy decisions, but accept Them with the fullest conviction." 1213 A perusal of these Ayaat shows that the following two standards have been identified by Holy Quran for the resolution of disputes particularly between the citizenry and the State:- (i) The first point of reference is the Word of God; (ii) The second point of reference is the Sunnah of the Holy Prophet PBUH; Those who deny this procedure/process are termed hypocrites by Holy Qur'an. The 1214 nutshell of Ayah 62 Surah 4, An-Nisa and Ayaat 47 through 52 is that those who do not observe what Allah or His Chosen Messenger PBUH has ordained may fall in the category of Munafiqeen i.e. the hypocrites. This is the situation which a believer would certainly avoid in all circumstances. 94. The message of the above mentioned seven Ayaat of Surah 4 is restated with full vehemence in Ayaat 43 through 50 of Surah 5, Al-Maida whose translation has been referred to in a section of this judgment. The qutshell of the Divine verdict in these Ayaat is that those who do not judge between people in accordance with what 1215 has been revealed are Disbelievers, Wrongdoers and Evil-livers. It is in this background that Article 203-D and Article 227 of the Constitution of Islamic Republic of Pakistan has to be understood, appreciated, construed, interpreted and implemented. 95. Ayah 49 of Surah 5 as well as Ayah 65 of Surah 4 declare and direct in very vivid terms:- "So Judge between them by what Allah has Revealed." (AND) 1216 "But nay, by the Lord, they will not believe (in truth) until They make thee (0 Muhammad) a Judge of what is in dispute between them and find within themselves no dislike of that which thou (0 Muhammad) decided, and submit with full submission." 96. Article 203D of the Constitution provides a practical mechanism to: (a) ensure implementation of the mandate contained in Article 227 of the Constitution that no law shall be 1217 enacted which is repugnant to the Injunctions of Islam contained in Holy Quran or Sunnah; (b) achieve the goal, visualized in clause three of Objectives Resolution that the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and (c) provide machinery at national level not through an ordinary piece of legislation but through the agency of 1218 the fundamental law of Pakistan by way of creating a Superior Court with exclusive jurisdiction to undertake solemn exercise of adapting the Statute Book of Pakistan with Injunctions of Islam. 97. The reason that a constitutional provision has empowered the Federal Shariat Court to examine laws on the touchstone of Injunctions of Islam can be traced to Ayah 85 of Surah 28, Al-Qasas which proclaims that Allah made the teachings of Holy Quran binding upon the believers. The other reason is furnished by Ayah 23 Surah 3, Ale-Imran, Ayah 105 Surah 4, An-Nisa; Ayaat 44, 47 Surah 5, Al1219 Maidah; Ayah 114 Surah 6, Al-Anam. All these verses proclaim that people should be judged according to the teachings and principles handed over by Revelation. Still another reasons is that the Holy Quran proclaims itself as FURQAN i.e. Distinguisher. In other words Quran is the litmus test. Human conduct in Muslim societies should not be apposed to the spirit and teachings of the Holy Book. G. DECISIONS OF FEDERAL SHARIAT COURT 98. The criteria for resolving conflicts among people at judicial level is best illustrated by the instructions given by Holy 1220 Prophet PBUH to Maaz bin Jabel on the eve of his appointment as Governor of Yamen. Decisions were to be given in the light of Injunctions contained in Holy Quran and if no guidance was available in the primary source, the judgment was to be based upon the guiding principles provided by Sunnah and in the absence of any precedent or Injunction available in the above two basic sources, then the judge was to undertake Ijtehad i.e. application of mental faculties to the maximum in resolving the issue without violating the spirit of guiding principles provided by two primary sources. This was the first occasion when the term Ijtehad was employed in the realm of administration of justice by a Companion in 1221 the presence of Holy Prophet (PBUH) who approved it whole heartedly. This was the time and occasion when the exercise of Ijtehad for the resolution of disputes received formal sanction. From that point onward Ijtehad played an important role in the evolution of Islamic jurisprudence and the administration of justice. 99. A careful reading of Article 203-GG as well as Articles 189 and 201 of the Constitution indicates that the Federal Shariat Court is not bound even by its own decisions. There is no institutionalized taqlid in so far as this Court is concerned. It is the continuation of the time honoured practice in Muslim Societies that the judges 1222 were not bound by previous decision in mattes 'within the ambit of uncovered field. The reason was simple: In the given circumstances of a situation when no legal provision was available to resolve a controversy, an effort to discover a remedy was resorted to by undertaking Ijtehad in the larger interest of Justice. Justice is indeed related to the restoration of rights. Resolution of human problems does not brook a vacuum. A still better view is always possible on account of practical experience gained by all the stakeholders in the administration of justice particularly on account of change of conditions and circumstances. Human thought is not stagnant. Human mind is a dynamic faculty. 1223 It progresses and develops by experience. The process of development and evolution is ongoing. This course is not static. Injunctions of Islam do not enjoin negation of movement. Islamic teachings beckon a person to look forward for a better future. 100. It may be useful to refer Ayah 46 Surah 34, Saba which gives primacy to the thought process and the element of scrutiny, examination, analysis and reflection. This is precisely what the Holy Quran describes as: Translation of Ayah 46 is as under:-- 1224 "Say to them, (0 Prophet): "I give you but one counsel: stand up (for heaven's sake), singly and in pairs, and then think: what is it in your companion (to wit, Muhammad) that could be deemed as madness?" He is nothing but a warner, warning you before the coming of a grievous chastisement." (Emphasis added) 101. The Superior Courts, particularly in matters relating to Islamic jurisprudence, are under an obligation to develop law in the light of Injunctions of Islam as laid down in Holy Quran and Sunnah. Exercise of Ijtehad implies that the Courts are not bound by one interpretation in the 1225 uncovered field for all times to come. Wisdom and saner counsel is the common heritage of humanity. The net result of incorporating Article 203GG is that any decision of the Federal Shariat Court in exercise of its jurisdiction, is binding on a High Court and on all Courts subordinate to such High Court. The trial courts are subordinate to provincial High Courts with the result that the findings of Federal Shariat Court, as regards its jurisdiction over trials relating to enforcement of Hudood as well as its interpretation and decisions shall be binding on provincial High Courts and the courts subordinate to the High Courts.s 102. Another aspect is worth considering. 1226 Let us first examine the language of Articles 189 and 201 and then read Article 203GG:- "189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan. "201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it. 1227 "203-GG. Subject to Articles 203-D and 203F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all courts subordinate to a High Court." 103. The phrase "to the extent that it decides a question of law or is based upon or enunciates a principle of law" mentioned in the first two articles is conspicuous by omission in Article 203-GG. It therefore means in very clear terms that the ratio as well as dicta in a judgment of the Federal Shariat Court is binding upon the four provincial High Courts as well as 1228 all the courts throughout the country as these courts are subordinate to one or the other High Court. Any judgment, order or decision delivered, passed or given by a High Court or a court subordinate to a High Court, contrary to the decision of Federal Shariat Court will be a judgment per incuriam. The Supreme Court of Pakistan, in the case of Dr. Munawar Hussain, referred to above, while dilating upon the jurisdiction of the Federal Shariat Court under Article 203-DD had held that High Court had no jurisdiction under section 561-A of the Code of Criminal Procedure and Article 199 of the Constitution in matters which fell within the jurisdiction of Federal Shariat Court. 1229 Decision of the High Court in such matters was declared as Coram non judice. This jurisdiction of the Federal Shariat Court therefore is exclusive in nature and is not shared by any superior Court/Tribunal created by the Constitution. Reference may be made to the following reports: (i) Zaheer ud Din versus. The State 1993 SCMR 1718 (at page 1756) "The Chapter 3A of the Constitution was inducted in the Constitution on 26th May, 1980. It contains Articles 203A to Article 203-J. The Article 203-A of the Constitution lays down that the 1230 provisions of Chapter 3A shall have effect notwithstanding anything contained in the Constitution. Further Article 203-G provides that "Save as provided in Article 203F, no Court or tribunal, including the Supreme Court and a High Court, shall entertain any proceedings or exercise any power or jurisdiction in respect of any matter within the power or jurisdiction of the Court." These provisions when read together, would mean that a finding of the Federal Shariat Court, if the same is either not challenged in the Shariat Appellate Bench of the Supreme Court 1231 or challenged but maintained, would be binding even on the Supreme Court. Consequently, the above given findings of the Federal Shariat Court cannot be ignored by this Court." (ii) Aurangzeb v. Massan 1993 CLC 1020 (at page 1023) "Judgments of the Supreme Court, its Shariat Appellate Bench and Federal Shariat Court were binding on other Courts, by force of a Constitutional mandate. The act of a Court in disregard of the judgments of the above Courts was denuded of legal 1232 authority and was clearly equivalent to an act without lawful authority and jurisdiction." (iii) Hafiz Abdul Waheed v. Mst. Asma Jehangir PLD 2004 Supreme Court 219 (at page 230) "The argument is fallacious. The Federal Shariat Court is itself the creation of Chapter 3-A. Article 203-D confers, what may be described as original jurisdiction on the Federal Shariat Court. Under this jurisdiction, the Federal Shariat Court, on its own motion or on the petition of any citizen 1233 of Pakistan or Federal Government or a Provincial Government, can examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Quran and the Sunnah of the Holy Prophet (PBUH). Article 203-DD empowers the Court to call for and examine the record of any case decided by any criminal Court under any law relating to the enforcement of Hudood for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed by any such criminal Court. SubArticle (3) of Article 203-DD lays down 1234 that "the Court shall have such other jurisdiction as may be conferred on it by or under any law". It may be noted here, that right of appeal was provided to the Federal Shariat Court by adding second proviso to section 20(1) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter to be referred to as "the Ordinance)", in the year 1980." 104. Sub-Article (9) of Article 203-E of the Constitution makes the things further clear. It states: "The court shall have power to review 1235 any decision given or order made by it." This power of review is not subject to any Act of Parliament like Article 188 which confers power of Review upon the Supreme Court on the following terms: "The Supreme Court shall have power, subject to the provisions of any Act of Majlis-e-Shoora (Parliament) and of any rules made by the Supreme Court to review any judgment or any order made by it." (Emphasis added) 1236 It will be noticed that the High Courts have no Constitutional mandate to review its orders or judgments. The power of review is conferred upon the High Courts by operation of subordinate legislation. Reference: Section 114 read with Order XLVII of the Code of Civil Procedure. 105. The vast power of review conferred upon the Federal Shariat Court is in effect the acceptance of the principle of IJTIHAD for the development of Islamic Jurisprudence through the agency of this Court of original jurisdiction. The objective in conferring this power upon the Federal Shariat Court has it genesis in Ayah 17 Surah 13, Ar-Rad, Holy Qur'an: 1237 Thus does Allah depict truth and falsehood. As for the scum, it passes away as dross; but that which benefits mankind abides on the earth. Thus does Allah explain (the truth) through examples. The decisions of the Federal Shariat Court are supposed to cleans the existing law of any dirt or possible trash. 106. The constitutional mandate of review is quite wide in scope. It includes the power of revisiting, on its own motion, any 1238 decision given or order made by itself. This is evident from the cases of Hazoor Bux v. Federation of Pakistan reported as PLD 1981 FSC 145 decided on 21st March, 1981 but reviewed by this Court on 20'h June, 1982 in the case entitled Federation of Pakistan v. Hazoor Bux and 2 others PLD 1983 FSC 255. 107. The historic opening words of the first Ayah of Surah Mujadilah is very significant as it is the solitary instance in the history of revealed literature where a woman, aggrieved by an inhuman custom, having the force of law, entered a caveat. Her rights as a wife had been suspended unilaterally by oral pronouncement made 1239 by the husband. She lodged a protest before Muhammad (PBUH), the head of the nascent Islamic polity, because she knew that Allah through His Apostle had the power to promulgate, amend, change, alter, substitute or even repeal any prevalent rule or custom having the force of law. Her supplication was answered. The prompt revelation proclaimed: "O protesting lady! Your petition has been heard." This declaration is preserved in Holy Quran as Ayah No.1 Surah 58, Al-Mujadilah. The following principles of law can therefore be 1240 deduced from this very Injunction of Islam:- (i) Right of protest is conceded to an aggrieved person; (ii) Every person aggrieved of an inhuman rule, law, custom or practice, having the force of law, has a right to get it reviewed by competent authority; (iii) The aggrieved person in such a situation should have free access to justice; 1241 (iv) The aggrieved person shall have the right of audience at the time of initiating the complaint; (v) The Authority is under an obligation to probe into the complaint and may for that purpose undertake examination of any impugned law or practice; (vi) The Authority must examine the issue and deliver a speaking and an effective order; and (vii) The Authority, may in the facts and circumstances of the case not only 1242 introduce necessary amendments in law but may also provide a remedy to rectify the wrong. 108. In this view of the matter the creation of Federal Shariat Court is in fact practical realization of the remedy contemplated by Holy Quran for persons aggrieved by antipeople laws and inhuman practices having the force of law. The Federal Shariat Court, in exercise of its jurisdiction under Article 203-D, in fact discharges the obligation imposed by Ayah 103 of Surah 3, Ale-Imran because the power to declare a law to be in conflict or otherwise to the Injunctions of Islam is not only a message to the people to follow what is good and avoid what is 1243 wrong. The yardstick to determine what is good or bad according to Muslim belief, is certainly the Revealed principle. H. FEDERAL SHARIAT COURT AND COUNCIL OF ISLAMIC IDEOLOGY 109. Allama Dr. Muhammad Iqbal, the philosopher poet of East, gave considerable thought to the question of reconstruction of modern Islamic jurisprudence during the second and third decade of twentieth century. This is evident from his letters to Sahibzada Aftab Ahmad Khan, Secretary Muslim Educational Conference dated 4 1244 June, 1925 wherein he also discussed the scheme then under consideration of Dr. Arnold. Allama Iqbal was of the view that the right to undertake Ijtehad should be conceded to the Muslim Parliament but he was also conscious of the fact that technical assistance should be available to the legislative bodies to ensure correct interpretation and enforcement of Shariah. The creation of the Council of Islamic Ideology and the Federal Shariat Court in due course of time after the creation of Pakistan, through constitutional apparatus, is in fact realization of the aspirations of Dr. Muhammad Iqbal because the Council of Islamic Ideology provides technical assistance/recommendations to the 1245 Parliament/ Provincial Assemblies before finalizing legislation while the Federal Shariat Court examines, whenever any question arises, any law or provision of law on the touchstone of Injunctions of Islam after a proposed Bill has materialized into on Act. The Council of Islamic Ideology appears to be" an adjunct of the Parliament/Provincial Assemblies/President/Governor but it does not provide remedies to general public. The Federal Shariat Court is not part of the legislative wing of the State but it has the potential to provide relief to any person who is aggrieved of or is critical of any legislative measure. This Court on the other hand gives personal hearing to a petitioner 1246 and undertakes an examination of the question submitted for its consideration. The procedure for invoking jurisdiction of Federal Shariat Court is not only simple but has been made inexpensive as well. Persons desirous of seeking examination of a given law or a provision of law or even custom, having the force of law, may not be permitted an ingress in the premises of legislative bodies to demand review of impugned legal instruments but the Constitution has provided a forum at the federal level to the citizens of Pakistan enabling them to invoke its extra-ordinary jurisdiction by making an application, without stamp duty and claim examination of any law, on the touchstone of Injunctions 1247 of Islam without constraint of period of limitation. The application for examination can be made at any provincial head-quarter or the principal seat of this Court at Islamabad. Once a Shariat Petition is submitted, it cannot be dismissed on the sole ground of absence or death of the petitioner. The Court may proceed with the examination of the impugned law which has been brought to its notice. 110. The creation of Federal Shariat Court is a natural sequel to Article 227 of the Constitution. There is yet another equally weighty consideration for creating Federal Shariat Court. The possibility cannot be ruled out that the recommendations of the 1248 Council of Islamic Ideology are not laid for discussion before both the Houses and each Provincial Assembly. In such an event the jurisdiction of the Federal Shariat Court can be invoked by any citizen of Pakistan to get the impugned laws or provision of law examined on the touchstone of Injunctions of Islam. This convenient, unproblematic, cost-free and simple remedy provided by clause (8) of Article 203-E read with The Federal Shariat Court (Procedure) Rules, 1981 may also be successfully availed and the jurisdiction of this court be invoked under Article 203D in the event the provisions contained in clause (4) of Article 230 of the Constitution are not complied with. Such a thing would be tantamount to 1249 resurrecting the basic principle enunciated in Ayah No. 1 Surah 58, Al-Mujadalah of Holy Quran. The enunciation of this principle in Holy Quran was a great step towards developing jurisprudence based upon justice, equity, even handedness, and good conscience. This Ayah also proclaims the principle that the purpose of promulgating positive laws is to secure peace and welfare of the people. In other words the laws should not be made and implemented to stifle or suspend the basic rights of people. The laws and customs ought to work to the advantage and good of the neglected and weak section of society in particular. The spirit and essence of this Ayah is that social justice has to be 1250 promoted and social evils have to be eradicated. This Ayah though related with Family Laws, yet it enunciates 'a general principle that man-made rules, customs or laws should be constantly and vigilantly reviewed in the larger interests of justice and fair-play. This principle finds support also from Ayah No.17 Surah 13, Ar-Raad of Holy Quran which lays down that the rubbish is destined to perish but that which benefits humanity tarries oh this earth. Another principle enunciated by Holy Quran may also be referred here in support of the above principle: Amar bil Maaroof wa Nahee anil Munkar. This maxim has been repeated for not less than fifteen time in Holy Quran. This principle refers to the 1251 obligation of prescribing what is good and forbidding what is not good. Ayah 111 of Surah 3, Al-e-Imran, while addressing the Muslims, declares, that Muslims are the best people because they have been raised for the betterment of humanity and are therefore under a religious obligation to enjoin good and forbid what is evil and also believe in one God alone. 111. In view of our discussion on the question of enforcement of Hudood, I would go to the extent of holding in absolutely unambiguous terms that even if the Parliament were to repeal Order No. IV of 1979, Ordinance, VI of 1979, Ordinance, VII of 1979 and Ordinance, VIII of 1979, 1252 even then the Federal Shariat Court will continue having exclusive jurisdiction, under Article 203-DD, to call for and examine the record of any case decided by any criminal court under any law relating to the enforcement of Hudood. 112. It is therefore abundantly clear that the basic object of creating Federal Shariat Court at the national level was to provide a vigilant and effective forum to oversee that no legal instrument, made enforceable in the Federation, remains de hors the Injunctions of Islam. This particular aspect is in fact the practical realization of the second part of clause (1) of Article. 227 of the Constitution of Pakistan which 1253 proclaims that no law shall be enacted which is repugnant to Injunctions of Islam. The Possibility of a legal provision, being incorporated in a Federal or a Provincial law, which is contrary to one or more Injunctions of Islam, cannot be ruled out because to err is human. The powers vesting in the Federal Shariat Court to examine the provisions of any law in fact provide a speedy and an effective remedy to rectify any error which might creep in while drafting the legal instrument. 113. The power conferred upon the Federal Shariat Court under Chapter 3A of Part VII of the Constitution is mandatory. The imperative nature of a decision of the Court 1254 is mentioned in Article 203-G of the Constitution which states that the final decision of the Federal Shariat Court is binding on all the High Courts and on all courts subordinate thereto. This is at par with the obligatory nature of the decisions of the High Court under Article 201 as well as the provision contained in Article 189 which makes the decision of the Supreme Court conclusive and binding on all other courts in Pakistan. This power is therefore more than what is visualized commonly about mandatory statutes. Without even alluding to the power of contempt stipulated for the three above mentioned constitutional courts when we examine these constitutional provisions closely we 1255 discover that the intention of legislature was indicated in unequivocal terms by mandating that the order passed by courts have to be obeyed, implemented and acted upon and further that the jurisdiction mandated for these three constitutional courts shall have to be honoured and preserved. Clause (2) of Article 5 of the Constitution states that obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan. ISSUE NO.(j) 1256 CONCLUSIONS 114. The conclusions arrived at in this judgment may be summarized as under:-- A. Final or interim orders passed or judgments delivered by trial courts exercising jurisdiction on criminal side with regard to offences covered by the term Hudood, whether mentioned in Ordinance VI of 1979; Ordinance VII of 1979; Ordinance VIII of 1979; Presidents Order No.4 of 1979; Act No.XXV of 1997 (Control of Narcotic Substances Act, 1997); The Anti Terrorism Act, 1997; Act No. XLV of 1257 1860 (The Pakistan Penal Code, 1860) or any other law for the time being in force, can be challenged by way of appeal or otherwise only before the Federal Shariat Court and no other court of criminal jurisdiction is competent to entertain and adjudicate upon proceedings connected with Hudood offences. Initiation of proceedings to quash First Information Report or pending criminal proceeding related to Hudood mattes are within the exclusive jurisdiction of Federal Shariat Court in view of the mandate of Article 203DD of the Constitution of Pakistan. 1258 B. Remedy against grant or refusal of bail before or during the trial of any of the above mentioned offences lies before Federal Shariat Court alone and no other court has jurisdiction to entertain any proceedings in such matters. C. Sections 11, 28 and 29 of Act VI of 2006 have been found to be violative of Article 203-DD of the Constitution of Pakistan. The overriding effect given to Ordinances VII and VIII of 1979 was doubly fortified as the provisions of Chapter 3A Part VII of the Constitution, which deal with the powers and jurisdiction of Federal Shariat Court, 1259 were mandated to have effect notwithstanding contained in the Constitution. D. Section 48 of The Control of Narcotic Substances Act, 1997 (Act: XXVII of 1997) whereby the High Court has been empowered to entertain and decide appeals arising out of the orders passed by the Special Court as well as the power of High Court under section 49 ibid to transfer cases, at any stave, from one Special Court to another Special Court are inconsistent with the provisions contained in Chapter 3A of Part VII of the Constitution. The power to entertain 1260 appeals against orders passed or judgments delivered by a Special Court established under section 46 ibid in matters related to Hudood offences and other proceedings including transfer of cases from such court vests in the Federal Shariat Court because offences related to Narcotics are covered by the term Hudood. The word High Court occurring in these sections shall be substituted with the words Federal Shariat Court. E. Section 25 of Act VI of 2006 (Woman Protection Act) is declared repugnant to Article 203-DD of the Constitution because it makes Lian a ground for 1261 divorce and thereby causes additional and uncalled for hardship to the "wife" which is contrary to the principal of Ease (Yusr) enunciated by Holy Qur'an. F. According to the amendment effected in item 2 of Schedule of Act XXVII of 1997 dated 21-8-1997, the Federal Government in exercise of power vesting in it under section 3 of the Anti-Terrorism Act, 1997 authorized the Anti-Terrorism Courts to try some categories of offences relating to Hudood without providing a rider in section 25 (i): ibid that appeals in cases involving Hudood offence would lie to the Federal Shariat Court. 1262 This amendment in the Schedule without corresponding change in section 25(i) offends the constitutional provision contained in Article 203-DD which confers exclusive jurisdiction upon this Court in cases relating to the enforcement of Hudood. "Any case decided by any criminal court under any law relating to the enforcement of Hudood" is to be heard and decided by the Federal Shariat Court alone. (Article 203-DD). This position is therefore travesty of legal constraint imposed by the Constitution. No authority is superior to the Constitution. Constitution has to be upheld at all costs. 1263 G. The following ten categories of offences are inter-alia covered by the term Hudood as contemplated by Article 203-DD of the Constitution and hence within the exclusive appellate and revisional jurisdiction of the Federal Shariat Court: (i) Zina = In all its forms including Adultery, Fornication and Rape. (ii) Liwatat= Sexual intercourse against the order of nature; 1264 (iii) Qazf= Imputation of Zina; (iv) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc; (v) Sarqa = Theft simplicitor; (vi) Haraba = It includes Robbery, Highway Robbery, Dacoity and all other categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code. 1265 (vii) Irtidad= Apostacy..It includes all offences mentioned in Chapter XV of the Pakistan Penal Code, namely: Of Offences Relating to Religion. (viii) Baghee =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code. (ix) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because the penalty therein has been 1266 prescribed by Nass/Ijma. [Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Al-Tashree ul Jinai al Islami, volume 1 at page 119, and (x) Human Trafficking. Appeal or Revision against any order, final or interim, passed by any criminal court under any law with regard to proceedings connected with or ancillary to or contributing towards commission of any of the above-mentioned offences, shall not be entertained by any court other than the Federal Shariat Court. Section 338-F of the 1267 Pakistan Penal Code has, in very clear words, prescribed that in the interpretation and application of its provisions and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in Holy Quran and Sunnah. The determination of what is in accordance with Injunctions of Islam is the sole province of Federal Shariat Court and no other court. Additionally all those matters relating to the Family life of Muslims, for which the term Hadood Allah has been used in Holy Quran are covered in the abmit of Hudood and hence within the appellate and revisional jurisdiction of the Federal Shariat Court. 1268 H. The term "enforcement of Hudood" encompasses all categories of offences and matters mentioned above. These offences are included in the scope of the term Hudood wherein the punishments have been prescribed by Holy Quran or Sunnah of the Holy Prophet PBUH and subsequently through legislative measures. Such punishments can be awarded by trial courts duly constituted under law. The term tazir when applied to any offence which partakes of the nature of Hudood or is ancillary or akin to or contributing towards commission of offences covered by the term Hudood or even where the proof prescribed for 1269 establishing Hadd is lacking, would of necessity fall within the ambit of, the term Hudood and hence within the jurisdiction of Federal Shariat Court. Consequently all matters within the parameters of Hudood, detailed in the main judgment including offences in which cognizance has been taken in any form as stipulated in section 190 of the Code of Criminal Procedure or under any other law dealing with offences relating to 'Hudood', are, for all purposes, enshrined in the jurisdiction of Federal Shariat Court as mandated by the Constitution, which jurisdiction includes, appeal, revision, review, grant or refusal of bail, 1270 transfer of cases, calling and examining record of proceedings, and applications to quash proceeding initiated before or during trial and all matters ancillary to such cases, at any stage of investigation, enquiry or trial. I. It is an established axiom of law that vires of an Act are to be examined in the light of the limitations imposed by the Constitution. However if the court finds a law or a provision of law to be inconsistent with constitutional provisions, it is competent to strike it down to the extent of such inconsistency. The Federal Shariat Court is additionally empowered to 1271 examine a law on the touchstone of Injunctions of Islam. The Court will therefore keep in mind three elements: The legislative competence; the touchstone of Fundamental Rights and the yardstick of Islamic Injunctions. Such an exercise is resorted to not because Judiciary is superior but on account of the fact that:-- (a) Dignity of law and legal principles have to be maintained; (b) Constitution has to be 1272 upheld and enforced; (c)Above all the people of Pakistan have to be enabled to live upto the permanent values and guiding principles enunciated by Islam; and (d) Members of Superior Judiciary are under oath to do all these things. J. CERTAIN LEGAL PRESUMPTIONS 1273 115. In this Judgment the following propositions have been presumed. These assumptions are based upon various Injunctions of Islam, the constitutional provisions and the Judge made law:- (i) The sole repository of the authority to interpret legal instrument is the Court constituted under the Constitution; (ii) Members of the superior judiciary are under oath to uphold the Constitution and the law;' 1274 (iii) The Preamble, Articles 2A and 31, Chapter 3A of Part VII and Part IX of the Constitution make it incumbent upon the State to create conditions which may enable the Muslim of Pakistan, individually and collectively, to order their lives in accordance with fundamental principles and basic concept of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah; (iv) That Holy Quran prohibits very strictly any extra-marital activity between man and woman and is consequently 1275 full of praise for those who shun illicit activity, i.e. those who guard their chastity and private parts. Reference Ayat 35 Sura 33, Al-( Ahzab and Ayat 29 Sura 70, Al-Ma'arij. (v) Human dignity, honour and human life has to be preserved. Laws which protect property of persons have also to be upheld. (vi) Legal provisions are enacted to establish peace, order and balance in the society both at domestic level and among nations at International level. Reference Ayaat 1 to 6 Sura 83, Al1276 Taffit; Ayat 38 Sura 2, Al-Baqara; Ayat 55 Sura 24, Al-Noor. (vii) Wisdom and saner counsel wherever recorded, according to the well known tradition of the Holy Prophet PBUH, is the lost treasure of believers and they are exhorted to acquire it as and when available. In this view of the matter all the legal principles relating to the domain of interpretation of legal instruments, or reflecting permanent values, from. any jurisdiction, if not opposed to the letter and spirit of Holy Quran and Sunnah, will be considered part of principles of Islamic Jurisprudence. 1277 (viii) The Court has to be extremely vigilant on the issue of implementation of the Injunctions of Islam because a stern warning has been given to those who cover up the Divine Commandments. Reference Ayah 159, Surah 2, Al-Baqarah: "Those who conceal anything of the clear teachings and true guidance which We have sent down even though We have made them clear in Our Book, Allah curses such people and so do all the cursers." 1278 116. It would be pertinent to mention that while writing this judgment in exercise of jurisdiction vesting in this Court under Article 203D of the Constitution, guidance has been sought inter-alia, from the above mentioned principles. (ISSUE No. (k)) DECLARATION 117. In view of the reasons recorded in this judgment under different issues it is hereby declared: 1279 i. That all those offences whose punishments are either prescribed or left undermined, relating to acts forbidden or disapproved by Holy Quran, Sunnah, including all such acts which are akin, auxiliary, analogous, or supplementary to or germane with Hudood offences as well as preparation or abetment or attempt to commit such an offence and as such made culpable by legislative instruments would without fail be covered by the meaning and scope of the term Hudood. ii. The extent of jurisdiction of Federal Shariat Court in matters relating to 1280 Hudood under Article 203DD is exclusive and pervades the entire spectrum of orders passed or decisions given by any criminal court under any law relating to the enforcement of Hudood and no other Court is empowered to entertain appeal, revision or reference in such cases. No legislative instrument can control, regulate or amend this jurisdiction which was mandated in Chapter 3A of Part VII of the Constitution of Pakistan. iii. An order granting or refusing bail before conclusion of trial in all categories of offences within the 1281 ambit of Hudood is covered by the word proceedings, as used in Article 203DD, and hence within the exclusive jurisdiction of the Federal Shasriat Court and can be impugned only in this Court. iv. The following ten offence are covered by the terms Hudood for the purpose of Article 203DD of the Constitution: (1) Zina = Adultery, Fornication and Rape. (2) Liwatat= Sexual intercourse against 1282 the order of nature; (3) Qazf= Imputation of Zina; (4) Shurb = Alcohlic drinks/Intoxicants/Narcotics etc; (5) Sarqa = Theft simplicitor; (6) Haraba = Robbery, Highway Robbery, Dacoity. All categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code. 1283 (7) Irtdad= Apostacy; (8) Baghy =Treason, waging war against State; All categories of offences mentioned in Chapter VI of the Pakistan Penal Code and (9) Qisas = Right of retaliation in offences against human body. All these offences are covered by definition Hadd because penalty therein has been prescribed by Nass/Ijma. Abdul Qadir Audah, has discussed to some extent the scope of Hadd in his treatise Tashree ul Janai al Islam, volume 1 at page 119. 1284 (10) Human Trafficking. The declaration in the above four items shall take effect immediately because all the learned counsel representing the respondents, the jurisconsult as well the amicus curiae have, as mentioned in paragraph 17 of this judgment agreed on the four issues which are reflected in the above declaration. These conclusions having been consented to by the parties need nothing more to be done. v. That sections 11 and 28 of the 1285 Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006) are hereby declared violative of Article 203DD of the Constitution because these provisions annul the overriding effect of Hudood Ordinances VII and VIII of 1979; vi. That the portions of sections 48 and 49 of The Control of Narcotic Substances Act, 1997 (Act XXV of 1997) whereby the High Court has been empowered to: (a) entertain appeals against the order of a Special Court consisting of 1286 a Sessions Judge or an Additional Sessions Judge and (b) transfer within its territorial jurisdiction any case from one Special Court to another Special Court at any stage of the proceedings, are violative of the provisions contained in Chapter 3A of Part VII of the Constitution because the offences envisaged by Act XV of 1997 are covered by the term Hudood. Both the, sections are consequently declared violative of Article 203DD of the Constitution. The portion which contains the words High Court should be deemed 1287 to be substituted by the words Federal Shariat Court in both the above mentioned sections. vii. Section 25 of the Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006) is declared violative of Article 203-DD of the Constitution as it omits subsections (3) and (4) of section 14 of The Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 with the result that it has adversely effected the operation of Injunctions of Islam relating to Lian. Consequently section 29 of Act VI of 2006 is also declared violative of Article 203DD as it adds clause (vii a) 1288 Lian in section 2 of the Dissolution of Muslim Marriages Act, 1939. This addition in the latter Act also becomes invalid on account of repugnancy with the Injunctions of Islam relating to Lian. viii. Section 25 of the Anti-Terrorism Act, 1997 (Act No.XXVII of 1997) does not make provision for filing an appeal before the Federal Shariat Court in cases where the Anti-Terrorism court decides a case relating to some of the Hudood offence included in the Schedule as from 21-8-1997. This omission is violative of Article 203-DD. The Federal Government should rectify 1289 this error by the target date fixed by this Court otherwise the following rider shall be read at the end of clause (i) of section 25 of Act XXVII of 1997 after omitting the full t stops. "but where a private complaint or a First Information Report or information, as stipulated in section 190 of the Code of Criminal Procedure, relating to an offence falling within the purview of above mentioned ten categories of Hudood Offences, is decided by any court exercising criminal jurisdiction under any law of the land, the appeal therefrom shall lie to the Federal Shariat Court." 1290 ix. The declaration relating to Protection of Women (Criminal Laws Amendment) Act, 2006 (Act VI of 2006), The Control of Narcotic Substances Act, 1997 mentioned at serial No. vi as well as Anti-Terrorism Act, 1997 shall take effect as from 22nd June, 2011 by which date necessary steps be taken by the Federal Government to amend the impugned laws in conformity with this declaration whereafter the impugned provision shall cease to be effective and this judgment of the Federal Shariat Court will be operative as on 22-62011. The other items of the Declaration become operative forthwith. 1291 118. The office is hereby directed to send copies of this judgment to the Federal Government as well as four Provincial High Courts and the Islamabad High Court for information, necessary action and compliance. SUPPLICATION "(Believers! Pray thus to your Lord): "Our Lord! Take us not to task if we forget or commit mistakes. Our Lord! Lay not on us a burden such as You laid on those gone before us. Our Lord! Lay not on us burdens which we do not have the power to bear. And overlook 1292 our faults, and forgive us, and have mercy upon us. You are our Guardian; so grant us victory against the unbelieving folk. "(2:286) (Sd.) SYED AFZAL HAIDER, J (Sd.) AGHA RAFIQ AHMED KHAN, C.J. (Sd.) SHAHZADO 1293 SHAIKH, J M.A.K./20/FSC accordingly Order 1294 P L D 2002 Federal Shariat Court 1 Present: Fazal Ilahi Khan, C. J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ Mst. ZAFRAN BIBI---Appellant versus THE STATE---Respondent Criminal Appeal No.6/P and Criminal Reference No.7/I of 2002, decided on 6th June, 2002. (a) Islamic Jurisprudence --- ----Criminal Laws of Islam ---Hudood---Islamic Criminal Laws, including the Hudood Laws, are designed, prescribed and promulgated on the basis of clear Injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.)---Said time-tested laws mainly aim at preservation and protection of life, honour and property of the citizens of an Islamic State and dispensation of justice without any discrimination ---Irrespective of the consideration for sex, wealth, religion, creed, colour, language or any other factor, these laws provide safeguards to enable the citizens to enjoy peaceful environment, free from any encroachment on their fundamental human rights---Like other laws, prosecuting or other components of law-enforcing machinery, may err in its application in respect to various facts and circumstances but ideal nature of said laws in ensuring maintenance of public law and order, besides its other deterrent and reformative aspects, is admittedly far-superior to the man-made laws on account of its highly balanced approach to individual and public interests---Depth of wisdom of these laws is unfathomable---Strict standard of evidence is required to prove the offences in view of severity and gravity of some of the punishments--One can only well realise the far-reaching effects of the wisdom 1295 contained in the Islamic Criminal Laws if one could only visualize oneself stepping in the shoes of the aggrieved individuals and families subjected, to the heinous offences. (b) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----Ss. 5 & 8---Proof of Zina ox Zina-bil-Jabr liable to Hadd---Essentials--Held, there must be either a confession of the accused of commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiya-al-Shahood (i.e. purgation). (c) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----S. 8-----Allegation of Zina against a married woman whose husband had been convicted about nine years before in a murder case and was confined in r Jail ---Proof--- Hadd punishment---Testimony of even one witness was not on the record and the whole case was based on circumstantial evidence coupled with the statements made by the accused, at different stages of the case--Trial Court while awarding Hadd punishment had considered such statements as confession and, taking, into account the factum of pregnancy and subsequent delivery of a child as corroboration, deemed it a sufficient ground for culpability of the accused lady---Statements of the accused made before police, which formed basis of formal F.I.R.; statement before the Magistrate recorded under S.164, Cr.P.C. and thereafter before the Trial Court under Ss.342 & 340(2), Cr.P.C. could, by no stretch of imagination, be called confession of the guilt---Validity---Scrutiny of record revealed that neither the statements of the accused came under the ambit of confession, envisaged by S.8, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 nor the pregnancy/delivery of child could, in circumstances, be const ed as sufficient basis for award of Hadd punishment. (d) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)--- ----S. 8---Confession in context of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Meaning---Essentials for confession to be effective---Wilful commission of offence of Zina and subjection to the same under coercion--- Distinction---When statements made by the lady accused contained the 1296 word "forcible" everywhere and her- stand, right from recording of the F.I.R. till final stage of the trial, was that she was subjected to "forcible Zina", no statement made by her at all stages could. be considered an acknowledgement of her guilt---Nothing was available on record, in the present case, to dislodge the exculpatory portion of statements maintained by the accused lady throughout the trial; she was not stated to be a woman of easy virtue; no iota of evidence was available to show that she was having any illicit liaison with any male person; she was not stated to have been seen in the company of any accused nominated by her in her statements and no complaint about her conduct was ever made by any one of the locality---Statement of accused, therefore, was to be accepted as a whole and prosecution could not make pick 'and choose exercise to formulate its case against the accused---Statement of accused, unless there was anything cogent on record to contradict her, was to be accepted in its entirety--Accused lady though had nominated two different accused for commission of Zina-bil-Jabr with her but prosecution could not get benefit from the same because defence of an accused, whatever absurdity it might contain, could not take the place of evidence against him/her---Contradictions found in the statements of lady accused created doubt about the actual male accused, thus male co-accused nominated by her got the benefit thereof and was acquitted. Confession in context of the Ordinance means, inter alia, statement of an adult and sane person, regarding commission of offence of Zina with consent, for which the charge is founded before the Court of competent jurisdiction. It does not include commission of offence of Zina under duress. There is difference between wilful commission of offence of Zina and subjection to the same under coercion. The statements in the present case made by accused contain the word "forcible" everywhere. Her stand, right from recording of the F.I.R. till final stage of the trial, is that of her subjection to "forcible Zina". Thus, no statement made by her at any stage could be considered an acknowledgement of her guilt. The complaint made by her before the police was rather expression of a grievance to seek its remedy the nature of other statements is also exculpatory. The confession to be effective, in the context of the Ordinance, firstly must be voluntary, with free consent without any coercion or inducement, secondly must be explicit as to the commission of the actual offence of Zina with free will, thirdly must be four times in four different meetings and, fourthly, must be recorded by the Court who has competent jurisdiction to try the offence under the law. The prosecution is always loaded with the responsibility to produce its own evidence to establish guilt of an accused beyond reasonable doubt. In the present case there is nothing on record to dislodge the exculpatory portion of her statements maintained by her throughout the trial. There is nothing on record to even presume that she was a woman of easy virtue. There is also no iota of evidence to show even that she was having any illicit liaison with any male person. The available record is also completely silent about her having been seen in the company of any accused, nominated by her in her statements. No complaint about her conduct was ever made by any one of the locality. Therefore, her statement is to be accepted as a whole. The prosecution cannot make pick and choose exercise to formulate its case against the accused. Unless there is anything cogent on record to contradict her self-exculpation, her statement according to the established principles of criminal law is to be accepted in its entirety. She has nominated two different accused for commission of Zina-bil-Jabr with her but the prosecution cannot get benefit from the same, because defence of an 1297 accused, whatever absurdity it might contain, cannot take the place of evidence against him/her. However, the contradiction found in the statements created doubt about the actual male accused and thus the co-accused nominated by her got the benefit thereof and was acquitted. Hudood do not discriminate. (e) Criminal trial-- ---- Defence of an accused, whatever absurdity it might contain, could not take place of evidence against him/her. (f) Criminal trial-- ---- Unless there was anything cogent on record to contradict accused's self-exculpation, his/her statement was to be accepted in its entirety. (g) Islamic Jurisprudence-- ----Crime and punishment---Punishment of Hudood---Hudood do not discriminate. (h) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----S. 8---Allegation of Zina against a married woman whose husband had been convicted about nine years before in a murder case and was confined in Jail---Pregnancy and subsequent birth of child by the accused lady ---Effect--Mere pregnancy in itself was not a proof of her commission of Zina, for accused was a married lady whose husband was still alive and though he was imprisoned in jail but there was absolutely no embargo on any one of his visitors to meet him as he was not undergoing solitary confinement and the accused lady was visiting him off and on and had also occasions for privacy with 1298 him as he was, detailed to perform duty with one of the jail wardens and had more freedom than the other prisoners---Imprisoned husband of the accused had submitted an affidavit and made statement on oath, wherein inter alia, he owned legitimacy of the child born during the trial---Such being a highly pertinent aspect of the whole case it was certainly noticeable that who else could better testify and be a better judge of the pregnancy /legitimacy of child of a married lady than that of her husband---Mere pregnancy of the accused, in circumstances, was no ground for her conviction. (i) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----S. 8---Allegation of Zina against' an unmarried girl or a married woman having no access to her husband---Mere pregnancy of such lady, by itself, when there was no evidence at all, was no ground for imposition of Hadd punishment if she comes out with the defence that pregnancy was the result of commission of rape on her. Badaius, Sanai, Vol. II; Al-Mughni by Ibn Qudama, Vol. VIII and Bidayatul Mujtahid, Vo1.II ref. (j) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----S. 8---Allegation of Zina against a married woman having no access to her husband-- -Pregnancy of such lady and delay in lodging F.I.R.--Presumption---Mere delay per se was no ground for drawing adverse inference in such-like cases because they involve family honour---Pregnancy and subjection to Zina-bil-Jabr being two different matters were not interconnected so as to provide basis for conjecture for her culpability- --Statement of accused lady under S.342, Cr.P.C., showed that the words "illegitimate child" had been used in a complex question but the lady was not asked about the source of her pregnancy anywhere and thus, she could not get an opportunity of explaining the incriminating circumstance appearing or finding basis in evidence, against her---If a person is coerced to commit Zina, that person after subjection to Zina, shall not be liable to any punishment whether Hadd or Ta'zir---Other party who caused coercion shall, however, be liable for punishment either of Hadd or of Ta'zir on the basis of evidence as the case may be and in case of pregnancy of a woman, either unmarried or, in case of being married, having no access to her husband, on her conception, if pleaded that that was the result of commission of offence of rape on her, she could not be awarded punishment of Hadd---Burden of proving her lack of consent shifted to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence---Principles. 1299 In the present case presumption against the accused was drawn on the basis of delay in her reporting the matter to police. Since after medical examination on the same date she was found pregnant of 7/8 weeks and the date of occurrence of commission of Zina-bil-Jabr as alleged by her was 11/12 days prior to the report it was conjectured that she was a consenting party to the commission of Zina but she disclosed the matter only when she became pregnant and got apprehended of its disclosure. Although promptness in lodging of F.I.R. in ordinary criminal cases has always been considered necessary to exclude the possibility of deliberation and fabrication, no hard and fast rule can be laid down to precisely prescribe time limit for this purpose. Nevertheless the Court can better evaluate the weight to be attached to delay that occurs in this connection, on the basis of overall evidence on record in a given case. Despite this, mere delay per se is' no ground for drawing adverse inference in such-like cases because they involve family honour. Members of the family are normally hesitant to promptly make report to police and therefore, they wait for getting approval of male/elder members of the family to do so. In the present case the delay has been plausibly explained in the F.I.R. itself. The accused who is also the complainant waited for return of her father-in-law to lodge the report, as advised by her mother-in-law. Therefore, there was no reason to conclude that her delay in reporting the matter was on account of her long silence and consent to the sexual act and she only disclosed the occurrence when she came to know that she was pregnant. Nevertheless the very fact that she was found pregnant of 7/8 weeks could also have been considered a proof of her innocence, otherwise she could have easily advanced the date of occurrence to bring it in line with the period of her pregnancy. In this context it is also pertinent to note that in her initial report she made no reference to her pregnancy having been resulted from Zina-bil-Jabr. There was no reason with the Investigating Officer to conclude that she was telling lie about the date of occurrence. Her pregnancy and subjection to Zina-bil-Jabr were two different matters and were not inter-connected so as to provide basis for conjecture for her culpability. For the first time the factum of pregnancy having been caused by Zina-bil-Jabr finds mention in her statement under section 164, Cr.P.C. but that statement is not proved on record. The Magistrate who recorded the statement had not appeared as a witness. At that time she had also no legal assistance. Besides the words: “I am pregnant due to Zina-bil-Jabr of the criminal.(28-3-2001)” most visibly appear to have been manipulated and subsequently inserted in between the lines. In her statement under section 342, Cr.P.C. the words "illegitimate child" have been used in a complex question but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could not get an opportunity of explaining the incriminating circumstance appearing or finding basis in evidence against her. Although she had the assistance of a counsel at that stage but the least that could be said in this respect is that the case had not been properly conducted. 1300 If a person is coerced to commit Zina, that person, after subjection to Zina, shall not be liable to any punishment whether Hadd or Ta'zir. The other party who causes coercion shall, however, be liable for punishment either of Hadd or of Tazir on the basis of evidence, as the case may be. In case of pregnancy of woman, either unmarried or, if married, having no access to her husband, when she conceives but pleads that that was the result of commission of offence of rape on her, she cannot be awarded punishment of Hadd. Burden of proving her lack of consent shifts to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence. In fact this concept is based on the cardinal principle of Islamic Criminal Law that for conviction of someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that he/she committed that act, but it is also to be ensured that he/she committed that of his/her own free-will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor liable to conviction. This position is summed up in the general principle of the Shariah which holds that a man is acquitted of responsibility for acts to which he has been compelled. The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to be adopted so that no innocent „person gets punished. The point of view prescribed by Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet (peace be upon him): (a). "Avoid enforcing Hudood as much as you can". (Ibn Majah). (c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty)." (Tirmidhi). 1301 (k) Islamic Jurisprudence-- ----Crime and punishment---Sentence of Hadd, award of---Principles. The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to be adopted so that no innocent person gets punished. The point of view prescribed by Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet (peace be upon him): (a) "Avoid enforcing Hudood as much as you can". (Ibn Majah). (c) "Keep ffudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty) " (Tirmidhi). (1) Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)-- ----Ss. 5, 8 & 10(2)---Accused was charged for commission of offence under S.10(2), Offence of Zina/Enforcement of Hudood) Ordinance, 1979 which fell under the category of Ta'zir (penal punishment) and carried less sentence but the accused had been convicted for Rajm, a Hadd punishment without changing the charge---Validity---Held, while the charge could be altered at the time of recording conviction from a greater offence to that of a lesser offence, in circumstances, the vice versa position was not permissible ---Hadd sentence on such score awarded to the accused was not maintainable which was set aside by Federal Shariat Court. Syed Iftikhar Hussain Gilani, Zafarullah Khan and Malik Fakhre Azam for Appellant. 1302 Ms. Jehanzeb Rahim, A.-G., N.-W.F.P. with Ms. Musarat Hilali, Addl. A.-G., N.-W.F.P. for the State. Dates of hearing: 5th and 6th, June, 2002. JUDGMENT DR. FIDA MUHAMMAD KHAN, J.--This appeal filed by Mst. Zafran Bibi, wife of Niamat Khan is directed against the judgment dated 17-4-2002 passed by the learned Additional Sessions Judge-II, Kohat whereby he has convicted her under section 5 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, hereinafter referred to as the Ordinance, and awarded her the punishment of stoning to death. A criminal reference for confirmation of the same has been made to this Court, as required under the law. We are disposing of both the matters by this single judgment. 2. Briefly stated, the case of prosecution started on 26-3-2001 when Mst. Zafran Bibi made report at Police Station, Gumbat, District Kohat, to the effect that her husband Niamat Khan who bad been convicted about nine years before, in a murder case, was since then confined in Central Jail, Haripur. She alleged that about 11 / 12 days prior to the report, when she had gone to the nearby hill, Kholgai, at "Asr vella", and was busy it cutting fodder over there, Akmal Khan son of Ghuncha Gul, overpowered her and committed "Zina-bil-Jabr" with her. Thereafter, she returned to her house and informed- her mother-in-law Zar Bibi. On that day her father-in-law had gone to Haripur to see his son, therefore, her mother-in-law advised her to wait for his return and report the matter to police if advised by him to do so. After his return, she lodged the report accordingly. At the time of her report at police station, her father-in-law, Zabita Khan son of Khan Muhammad was accompanying her. The said report was thumb-marked by her as well as by her father-in-law as a token of its correctness. Thereafter, Mst. Zafran Bibi was sent for medical examination, alongwith her father-in-law, under the custody of I.H.C. Jalal Din. She was medically examined. The Woman Medical Officer found her pregnant for about 7-8 weeks. Considering the period of her pregnancy vis-a-vis the period of her subjection to Zina, as alleged by her in her report before the police, being at variance, the police arraigned her also as accused alongwith accused Akmal Khan and challaned them to face the trial. Both of them were formally charged on 13-10-2001 for offence punishable under section 10(2) of the Ordinance. They did not plead guilty to the charge and claimed trial. Therefore, they were tried. On conclusion of the trial while her co-accused Akmal Khan was acquitted, she was convicted and sentenced as mentioned hereinabove. 1303 3. At the trial prosecution examined in three witnesses. P.W.1 is Muhammad Firdus, S.H.O. He deposed that after lodging report Exh.PA by Mst. Zafran Bibi on 26-3-2001 he prepared injury sheet Exh.PM for her medical examination at Female Hospital. He sent the same through Jalal Din, H.C. He received the medical report of Mst. Zafran Bibi wherein it transpired that she was pregnant. On the basis of that report he charged her as well as her co-accused Akmal Khan under sections 5/10 of the Ordinance and lodged F.I.R. Exh.P.W.I/1 on 27-3-2001. He arrested Mst. Zafran Bibi and prepared site plan on her pointation. Her co-accused Akmal Khan, however, could not be found out. He produced Mst. Zafran Bibi before Illaqa Magistrate where her statement under section 164, Cr.P.C. was recorded. In the meanwhile he arrested co-accused Akmal Khan after rejection of his pre-arrest bail and got him medically examined. He also recorded statements of P.Ws. under section 161, Cr.P.C. After completion of investigation he submitted complete challan P.W.2 is Hassan Mahmood, Constable. He is a marginal witness to the recovery memo. Exh.P.W.2/1 whereby the Investigating Officer took into possession one bottle containing swabs Exh.P/1, one "Azarband" (trouser string) belonging to Mst. Zafran Bibi Exh.P/2. P.W.3 is Dr. Robeena Yasmin, Woman Medical Officer. On 26-3-2001 she examined Mst. Zafran Bibi and thereafter trade the following observations:----- "A young lady well-oriented in time and space, secondary sexual character are well-developed. Bruise mark on left buttock. Per abdomen: No abnormality detected, Per Vagina examination: Hymen not intact O.S. closed U.T bulky F.X, clear. Adv: Pregnancy Test. Result: Positive. Period of pregnancy on examination: 7-8 week approximately" She also took vaginal swabs and handed over the same to the police. She issued Medico-Legal Report Exh.P.W.3/1. 1304 4. Mst. Zafran Bibi was examined under the provisions of section 342, Cr.P.C. wherein she stated that she was innocent and falsely charged. In response to question No.1 she stated that accused Akmal Khan repeatedly committed Zina with her without her consent. She stated that she was ready" to take oath on the Holy Qur'an that no one except Akmal Khan, accused committed Zina with her. She admitted that she had given birth to a daughter who was still alive and in her custody. She added that she was an illiterate lady and may have given wrong statement to police on account of that reason. She also made statement on oath in the following words:---- "I am the wife of Niamat Gul. He was in the Central Jail, Haripur as was imprisoned/convicted in some criminal case. Zabta Khan is my father-in-law. I was residing in the house of my husband alongwith his father. One day he took me to the Police Station, Gumbat, where he lodged the report. I have not given any statement in police station nor lodged any report to the police. What has been done in the police station was done by the police at the instance of my father-in-law. In fact Jamal son of Zabta Khan has committed Zina forcibly with me and my father-in-law to save his son Jamal involved accused in the case in hand. Accused Akmal has not committed Zina with me. He is innocent. Sher Haider, Advocate was engaged by my husband for the prosecution of the case on my behalf. The said Advocate have acted and prosecuted the case at the direction of my husband. I am totally unaware about the proceeding and my statement under section 342, Cr.P.C." 5. We have heard learned counsel for the parties and have perused the record with their assistance. Learned counsel Syed Iftikhar Hussain Gilani appeared on behalf of appellant Mst. Zafran Bibi and made detailed submissions. He was assisted by learned counsel Fakhre Azam Khan, Advocate. Learned Advocate-General, N.-W.F.P. Mr. Jehanzeb Rahim argued the case on behalf of the State. 6. Syed Iftikhar Hussain Gilani, learned counsel for appellant/accused, contended that conviction of the appellant/accused is illegal because proof for the same, as envisaged under section 8 of the Ordinance, is not available on record. Elaborating his point, the learned counsel submitted that neither the appellant/accused has made any confession of the commission of offence before a Court of competent jurisdiction nor the required testimony of four Muslim adult male witnesses; is available anywhere on record. He submitted that in fact there is absolutely no evidence worth the name to be sufficient for implication of the appellant/accused. He vehemently contended that mere pregnancy or birth of a child by a lady was not sufficient for her conviction under the heinous charge of Hadd. Referring to the affidavit Exh.D/1, submitted by the husband of Mst. Zafran Bibi he maintained that the same was self-speaking of the innocence of the appellant/accused. Learned Advocate Mr. Fakhre Azam Khan, Advocate who was available to assist the senior counsel for the appellant also made submissions. He 1305 assailed the impugned judgment on the legal grounds and submitted that the appellant/accused was charged for commission of offence punishable under section 10(2) of the Ordinance. Therefore her subsequent conviction for a graver offence under section 5 of the Ordinance was illegal. He also reiterated that pregnancy alone was not sufficient for conviction under such a heinous charge. Learned Advocate-General, N.-W.F.P. Mr. Jehanzeb Rahim submitted that the appellant/accused Mst. Zafran Bibi has made different statements under sections 164,, 342 and 340(2), Cr.P.C. and has, also submitted affidavit. During the course of arguments, he vehemently contended that for ascertaining the truth and arriving at correct conclusion, the case should be remanded to the learned trial Court for recording statement of the husband of appellant Mst. Zafran Bibi, as he has already submitted affidavit, so that legitimacy of the child of the appellant/accused, born during the trial, could also be determined. 7. After hearing the arguments of all learned counsel for the parties and taking into account different aspects of the matter, we also deemed it necessary to bring on record the statement of Niamat Khan, husband of Mst. Zafran Bibi. However, instead of remanding the case to the trial Court which could have further prolonged the agony of the poor family, we adjourned the case to the next day and, exercising our powers under the provisions of section 428, Cr.P.C. for the sake of speedy disposal of the case, made order for production of Mst. Zafran Bibi and her husband Niamat Khan (who had earlier submitted affidavits Exh.DC and Exh.D/2) for recording their statements. Accordingly, they were produced on the next day and their statements on oath under section 340(2), Cr.P.C. were recorded according to law. 8. Niamat Khan, husband of the appellant/accused, made statement on oath in the following words:----- "Mst. Zafran Bibi is my wife. She was on visiting term with me while I was serving imprisonment in jail at Haripur. Mst. Zafran Bibi has given birth to Mst. Shabnam Bibi from our wedlock. I have seen my affidavit, Exh.D-1, which was drafted at my instance and read over to me. After admitting it correct I have thumb-impressed the same. The application is Exh.D-2, Mst. Shabnam Bibi is my legitimate child. " Thereafter, the appellant/accused Mst. Zafran Bib made deposition in the following words:-- "I have seen the affidavit, Exh.DC, which was drafted at my instance and read over to me. After admitting it correct I have thumb-impressed the same. I have given birth to a child namely Shabnam Bibi, from the wedlock of my husband. " 1306 After recording their depositions, we proceeded with the appeal. 9. We anxiously examined the evidence on record in the light of submissions made by learned counsel for the parties, This is an unfortunate case, which received much publicity in the National/International Press. It also gave rise to several controversies. On account of disinformation, misunderstanding, lack of knowledge of the facts and circumstances of the case, some organizations resorted even to take out processions and demand repeal of the Hudood Laws itself without realizing that it was not the laws of Hudood (i.e. fixed sentence prescribed by Holy Qur'an and Sunnah) but its misapplication that resulted in miscarriage of justice. So far as the Islamic criminal law, including the Hudood laws, are concerned they are designed, prescribed and promulgated on the basis of clear injunctions contained in the Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him). These time tested laws mainly aim at preservation and protection of life, honour and property of the citizens of an Islamic State and dispensation of justice without any discrimination. Irrespective of the consideration for sex, wealth, religion, creed, colour, language or any other factor, these laws provide safeguards to enable the citizens enjoy peaceful environment, free from any encroachment on their fundamental human rights. Like other laws, the prosecuting or other components of law-enforcing machinery may err in its application in respect to various facts and circumstances, however, the ideal nature of these laws in ensuring maintenance of public law and order, besides its other deterrent and reformative aspects, is admittedly far-superior to the man-made laws on account of its highly balanced approach to individual and public interest. In fact the depth of wisdom of these laws is unfathomable. Unfortunately some misinformed or dis-informed individuals, while looking at the severity and gravity of some of the punishments raise objections; but then they fail to appreciate the strict standard of evidence required to prove the offences. They probably also fail to judge the extent of damage being caused by the offenders to the aggrieved families. They also overlook the fact that the criminals by their nefarious acts disturb the tranquility of the society, by and large, cause error and spread insecurity all around. The brutal offenders who commit murder, rape or dacoity, therefore, need to be dealt with iron hand otherwise their unbridled activities open floodgate of innumerable crimes at the cost of lives, honour and property of innocent people. One can only well-realise the far-reaching effects of the wisdom contained in these laws if one could only visualise oneself stepping in the shoes of the aggrieved individuals and families subject to the heinous offences. It is well put by one of the best teachers of history (namely i.e. Sheikh Saddi) in the following couplet: (Showing mercy to a wolf in fact amounts to inflicting cruelty on the sheep). 1307 10. Before proceeding with the consideration of the grounds taken in appeal it seems more appropriate to refer to section 8 of the Ordinance which provides the standard of proof required for Zina liable to Hadd. The same reads as under:-- "Proof of Zina or Zina-bil-Jabr liable to Hadd.--Proof of Zina or Zina-bil-Jabr liable to Hadd shall be in one of the following forms, namely:-- (a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or (b) at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of Tazkiyah-al-Shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence: Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims. Explanation.--In this section "Tazkiyah-al-Shuhood" means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness. Confession recorded by a Court other than the one competent to try the case not a confession. An accused has to make a confession of the commission of the offence before a Court of competent jurisdiction i.e the trial Court." As is evident from the above, there must be either a confession of the accused of the commission of offence of Zina, before a Court of competent jurisdiction, or, in the alternative, ocular evidence of at least four Muslim adult male witnesses whose veracity conforms to the standard of Tazkiyah-al-Shuhood (i.e. purgation). 1308 11. Admittedly, not speak of four witnesses, as required under the law, there is no testimony of even one eye-witness in this case. The whole case is based on circumstantial evidence, coupled with the statements made by the appellant/accused, at different stages of the case. The trial Court considered these statements as confession and, taking into account the factum bf pregnancy and subsequent delivery of a child, perhaps as corroboration, the learned Judge deemed it a sufficient ground for culpability of the appellant. However, thorough scrutiny reveals that neither the statements of appellants come under the ambit of confession, as envisaged by section 8 of the Ordinance, nor the pregnancy/delivery of child, could, in circumstances, be construed as sufficient basis for award of Hadd punishment. The reasons for holding this are summed up in the subsequent paras. 12. So far as the statements of the appellant/accused are concerned these are made before the police, which formed basis for formal F.I.R. on 27-3-2001, secondly before the Magistrate, recorded under section 164, Cr.P.C. on 28-3-2001 and thereafter before the trial Court under the provision of sections 342 and 340(2), Cr.P.C. It is highly pertinent to observe that all these statements could by no stretch of imagination be called confession of the guilt. It may be noted that confession in context of the Ordinance means inter alia. statement of an adult and sane person, regarding commission of offence of Zina with consent, for which the charge is founded before the Court of competent jurisdiction. It does not include commission of offence of Zina under duress. There is difference between wilful commission of offence of Zina and subjection to the same under coercion. The statement made by appellant contains the word "forcible" everywhere. Her stand, right from recording of the F.I.R. till final stage of the trial, is that of her subjection to "forcible Zina". Thus, no statement made by her at all stages could be considered an acknowledgement of her guilt. The complaint made by her before the police was rather expression of a grievance to seek its remedy. The nature of other statements is also exculpatory. It is pertinent to mention that the confession to be effective in the context of the Ordinance, firstly must be voluntary, with free consent without any coercion or inducement, secondly must be explicit as to the commission of the actual offence of Zina with free-will, thirdly must be four times in four different meetings as held in a number of cases by Federal Shariat Court and Shariah Appellate Bench' and, fourthly, must be recorded by the Court who has competent jurisdiction to try the offence under the law. Needless to say that the prosecution is always loaded with the responsibility to produce its own evidence to establish guilt of an accused beyond reasonable doubt. In the instant case there is nothing on record to dislodge the exculpatory portion of her statements maintained by her throughout the trial. There is nothing on record to even presume that she was a woman of easy virtue. There is also no iota of evidence to show even that she was having any illicit liaison with any male person. The available record is also completely silent about her having been seen in the company of any accused, nominated by her in her statements. No complaint about her conduct was ever made by anyone of the locality. Therefore, her statement is to be accepted as a whole: The prosecution cannot make pick and choose exercise to formulate its case against the appellant. Unless there is anything cogent on record to contradict her self-exculpation, her statement according to the established principles of criminal law is to be accepted in its entirety. We may also add that she has nominated two different accused for commission of Zina-bil-Jabr with her but the prosecution cannot get benefit from the same, because 1309 defence of an accused, whatever absurdity it might contain, cannot take the place of evidence against him/her. However, the contradiction found in the statements created doubt about the actual male accused and thus the co-accused nominated by her got the benefit thereof and was acquitted. Here we may make it clear that Hudood do not discriminate. 13. We may also observe that at the time of making report the appellant was accompanied by her father-in-law. At that time she was living in his house. Keeping in view the cultural and traditional background of the area her father-in-law had not the slightest suspicion about her guilt or consent for the alleged sexual intercourse or illegality of her pregnancy otherwise he would have acted differently by either resorting to "honour killing" or at least to the expulsion of appellant from his house. 14. Regarding her pregnancy and subsequent birth of child, which is a significant circumstance against her we may mention that mere pregnancy in itself it is not a conclusive proof of her commission of Zina. She was a married lady whose husband was still alive. Although he was imprisoned in Central Jail, Haripur but there was absolutely no embargo on any one of his visitors to meet him, as he was not undergoing solitary confinement. It is on record that at the time of occurrence her father-in-law had gone to visit him in the jail and, on account of this reason, report of the matter to police was delayed. His affidavit shows that like other family members, the appellant was visiting him off and on and had also occasions for privacy with him as he was, allegedly, detailed to perform duty with one of the Jail Wardens and had probably enjoying more freedom than the other prisoners. Her husband who submitted affidavit also subsequently made statement on oath, reproduced hereinabove, wherein, inter alia, he owned legitimacy of the child born during the trial. This is a highly pertinent aspect of the whole case and it is certainly noticeable to mention that who else can better testify and be a better judge of the pregnancy/legitimacy of child of a married lady other than that of her husband. Therefore, mere pregnancy of appellant Mst. Zafran Bibi, in circumstances, was no ground for her conviction. 15. For the sake of further elucidation, we may also mention that, even otherwise, mere pregnancy, by itself when there is no other evidence at all, of a married lady, having no access to her husband, or even of an unmarried girl is no ground for imposition of Hadd punishment if she comes out with the defence that that was the result of commission of rape with her. Eminent Jurists like Hanafis and Shafis hold this view. Imam Malik also agrees with the same with a provision that the burden of proving want of consent on her part by raising alarm or making complaint against the, same would lie, on her. (Badaius Sanai), Vol. II, Al-Mughni (Ibn Qudama), Vol. VIII, Bidayatul Mujtahid, Vo1.II) This view finds full support from an incident that was reported to the Holy Prophet (peace be upon him) that a woman was raped and he (peace be upon him) acquitted her of the charge punishable with Hadd (Al-Mughni). 1310 16. In the instant case presumption against the appellant was drawn on the basis of delay in her reporting the matter to police on 26-3-2001. Since after medical examination on the same date she was found pregnant of 7/8 weeks and the date of occurrence of commission of Zina-bil-Jabr as alleged by her was 11/12 days prior to the report it was conjectured that she was a consenting party to the commission of Zina but she disclosed the matter only when she became pregnant and got apprehended of its disclosure. In this respect we would like to mention that although promptness in lodging of F.I.R. in ordinary criminal cases has always been considered necessary to exclude the possibility of deliberation and fabrication, no hard and fast rule can be laid down to precisely prescribe time limit of this purpose. Nevertheless the Court can better evaluate the weight to be attached to delay that occurs in this connection, on the basis of overall evidence on record in a given case. Despite this, as held by superior Courts including Federal Shairat Court, in number of cases, mere delay per se is no ground for drawing adverse inference in such-like cases because they involve family honour. Members of the family are normally hesitant to promptly make report to police and, therefore, they wait for getting approval of male/elder members of the family to do so. In the instant case the delay has been plausibly explained in the F.I.R. itself. The appellant who is also the complainant waited for return of her father-in-law to lodge the report, as advised by her mother-in-law. Therefore, there was no reason to conclude that her delay in reporting the matter was on account of her long silence and consent to the sexual act and she only disclosed the occurrence when she came to know that she was pregnant. Nevertheless the very fact that she was found pregnant of 7/8 weeks could also have been considered a proof of her innocence, otherwise she could have easily advanced the date of occurrence to bring it in line with the period of her pregnancy. In this context it is also pertinent to observe that in her initial report she made no reference to her pregnancy have been resulted from Zina-bil-Jabr. There was no reason with the Investigating Officer to conclude that she was telling lie about the date of occurrence. Her pregnancy and subjection to Zina-bil-Jabr were two different matters and were not inter-connected so as to provide basis for conjecture for her culpability. For the first time the factum of pregnancy having been caused by Zina-bil-Jabr finds mention on 28-3-2001, in her statement under section 164, Cr.P.C. but that statement is not proved on record. The Magistrate who recorded the statement has not appeared as a witness. At that time she had also no legal assistance. Besides this we have also observed that the words: “I am pregnant due to Zina-bil-Jabr of the criminal.(28-3-2001)” most visibly appear to have been manipulated and subsequently inserted in between the lines. In her statement under section 342, Cr.P.C. the words "illegitimate child" has been used in a complex question but the poor lady was not asked about the source of her pregnancy anywhere. Thus, she could' not get an opportunity of explaining the incriminating circumstance appearing or finding basis do evidence 1311 against her. Although she had the assistance of a counsel at that stage but the least that could be said in this respect is that the case has not been properly conducted. 17. It may also be pertinent to mention that if a person is coerced to commit Zina, that person after subjection of Zina, shall not be liable to any punishment whether Hadd or Ta'zir. The other party who causes coercion shall, however, be liable for punishment either of Hadd or of Ta'zir on the basis of evidence, as the case may be. A number of incidents are reported during the period of Holy Prophet (peace be upon him), as stated above, and in the period of Orthodox Caliphate as well where the women coerced to commit Zina were let of free and acquitted but the co-accused were convicted and sentenced. (Tirmizi, Bukhari, Abu Daud, Al-Tashri-al-Janai-al-Islami by Abdul Qadir Auda, Volume II). It has also been held that in case of pregnancy of woman, either unmarried or, in case of being married, having no access to her husband, conceives but pleads that that was the result of commission of offence of rape on her, she cannot be awarded punishment of Hadd. Imam Malik, however, adds, as mentioned above, that the burden of proving her lack of consent shifts to her and the truth of her statement could be ascertained from the attending circumstances at the time and after the occurrence. 18. In fact this concept is based on the cardinal principle of Islamic Criminal Law that conviction of someone for commission of unlawful sexual intercourse, it is not only necessary to make certain that he/she committed that act, but it is also to be ensured that he/she committed that of his/her own free-will. In case someone performs that act under compulsion by someone, he/she is neither guilty nor liable to conviction. This position is summed up in the general principle of the Shariah which holds that a man is acquitted of responsibility for acts to which he, has been compelled. 19. The sentence of Hadd is highly severe and deterrent. Therefore, every possible precaution is ordained to be adopted so that no innocent person gets punishes The point of view prescribed by Islamic Criminal Laws in this connection is evident from the rules based on the following sayings of the Holy Prophet (peace be upon him): (a) "Avoid enforcing Hudood as much as you can". (Ibn Majah). (c) "Keep Hudood away from Muslims as much as possible. If there is any way to spare people from punishment let them go. For it is much better that an Imam (i.e. Judge) should err in acquitting someone rather than he should err in punishing someone (who is not guilty)." (Tirmidhi). 1312 20. We may also add that, as pointed out by one of learned counsel of the appellant, an illegality in the conviction has also been committed by the learned trial Court in the instant case. The appellant was charged for commission of offence under section 10(2) of the Ordinance, which falls under the category of Ta'zir (penal punishment) and carries less sentence, however, the appellant has been convicted for 'Rajm', a Hadd punishment, without changing the charge. It is a basic principle of our procedural law that while the charge can be altered at the time of recording conviction from a greater offence to that of lesser offence, in circumstances the vice versa position is not permissible. Hence, on this score also Hadd sentence awarded to the appellant is not maintainable and has to be set aside. 21. The upshot of the above discussion is that the prosecution has failed to prove its case against the appellant beyond any reasonable doubt and consequently, for the reasons stated above, we allow this appeal, set aside conviction and sentences of Mst. Zafran Bibi wife of Niamat Khan and acquit her of the charge. She shall be released forthwith if not required in any other case. Resultantly the criminal reference made for confirmation of the award of Hadd sentence is not confirmed and is answered in negative. M.B.A./76/FSC Appeal allowed. 1313 2006 P L C (C.S.) 49 [Federal Shariat Court] Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ Syed SHABBIR HUSSAIN KAZMI and others Versus GOVERNMENT OF PAKISTAN and others Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/L, 7/L, 9/L of 1993; decided on 10th October, 2005. (a) Bonded Labour System (Abolition) Act (III of 1992)--- ----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10, 11, 14, 15 & 18- Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.21 5, 6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions 1314 of Islam---Validity---Held, impugned definitions in 5.2, Bonded Labour System (Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court provided guidelines for the purpose and directed that copy of the present judgment be forwarded to the specified authorities. The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory dispensation of vital importance as it was intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc. The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line with directives of the two judgments ofthe Supreme Court. By purporting to challenge the vires of the impugned provisions of the Act what the petitioners in the present case, really sought was the effacement of the binding effect of the two judgments, which was not permissible in law. The judgments of Supreme Court declaring the law on the subject could not be called in question by a person or by a batch of persons though he/they might not be party to the judgments. Supreme Court decision was binding on all persons though they were not party before Supreme Court. Even an obiter in a judgment by Supreme Court carries binding effect. A perusal of the said judgments of the Supreme Court would show that these indeed protected/upheld the following fundamental rights of the labourers:-1315 (i) Security of life or liberty of a person---Article 9. (ii) Safeguard as to arrest and detention---Article 10. (iii) Prohibition of all forms of forced labour---Article 11. (iv) Upholding of inviolability of dignity of man---Article 14. (v) Guarantee of freedom of movement---Article 15. (vii) Freedom of trade, business or profession---Article 18. Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandment. In Islam a workman is not entitled to anything until his work be finished. Forced labour is repugnant to Islam in the extreme. How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator. Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he 1316 shall be held answerable before God on the Day of Judgment. Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind. Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment. Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails. Contention of the petitioner that the workers employed in brick kiln performed their duties under contract with the owners which was with reference to the practice of payment of advance amount to them by way of peshgi, is wholly without force. Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount. It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefor. 1317 Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam. The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages. Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages. Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular. Likewise the impugned sections 5, 6, 7, 8 and 11 of the Act cannot be held to be repugnant to the Injunctions of Islam, as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations. Federal Shariat Court, however, observed that the object for which the Act was passed could not be achieved so far. Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press. Perusal of the act would show that under section 9 the Provincial Government had been 1318 conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of the Act are properly enforced. Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by securing and protecting his economic interests. Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments. It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kilt labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance Committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed the Court. It is for the Government functionaries to ensure the due and purposeful enforcement of the Act, in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated. A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry. As late as in 2004 Bonded Labours Research Forum, in collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of 1319 curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved. Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country. Enforcement of Fundamental rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139; PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC -179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol.6, P. 120 1320 (b) Constitution of Pakistan (1973)--- ----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment; even an obiter in a judgment by Supreme Court carries binding effect. Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621;. Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref. (c) Islamic jurisprudence- ----Dignity of labour in Islam. 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al 1321 Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/1- of 1993 and 36/L, 37/1, of 1992). S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992). Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993. Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993). Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G. Balochistan (in Sh.P. No.9-L of 1993). Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993). Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P. No.9-L of 1993). 1322 Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993). Miss Asma Jahangir: Amicus Curiae. Zafarullah Khan for Pakistan Institute of Labour Education and Research. Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005. JUDGMENT SAEED-UR-REHMAN FARRUKH, J.---By this judgment we propose to dispose of the following eight matters as common questions of law and facts arise therein: Shariat Petition No.36-L of 1992. (1) (Rana Saeed-uz-Zaman and others v. Government of Pakistan). Shariat Petition No.37-L of 1992. (2) (Niaz Ali and others v. Government of Pakistan). Shariat Petition No.58-1 of 1992. (3) (Ghulam Khan Bangash v. Federation of Pakistan). 1323 Shariat Petition No.6-L of 1993. (4) (Haji Muhammad Amin and others v. Secretary, Ministry of Law). Shariat Petition No. 7/L of 1993. (5) (Mian M. Akram and others v. Secretary, Ministry of Law). Shariat Petition No. 8-L of 1993. (6) (Syed Shabbir Hussain and others v. Government of Pakistan). Shariat Petition No.9-L of 1993 (7) (Gulfraz Ahmad and others v. Secretary, Ministry of Law, Government of Pakistan). Shariat Petition No. 10-L of 1993. (8) (Haji Muhammad Aslam and others v. Secretary, Ministry of Law). 2. Through the above Shariat Petitions, under Article 203-D of the Constitution of the Islamic Republic of Pakistan, the petitioners who are brick kiln owners, have assailed various provisions of the Bonded Labour System (Abolition) Act, 1992 (hereinafter called "the Act"), as being repugnant to injunctions of Holy Quran and. Sunnah. Following declaration has been sought 1324 from this Court:-- "that the definitions of the `bonded debt', `bonded labour', `bonded labourer' and `bonded labour system' 'may kindly be declared as repugnant to the Injunctions of Islam." 3. The impugned definitions are reproduced as under:-- (a) "advance (peshgi)" means an advance (peshgi), whether in cash or in kind, or partly in cash or partly in kind, made by one person (hereinafter referred to as the creditor) to another persons (hereinafter referred to as the debtor); (b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been obtained, by a bonded labourer under, or in pursuance of, the bonded labour system". (c) "bonded labour" means any labour or service rendered under the bonded labour system; (d) "bonded labourer" means a labourer who incurs, or has, or is presumed to have-incurred, a bonded debt; (e) "bonded labour system" means the system of forced, or pertly forced, labour under which a debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the effect that,-- (i) in consideration of an advance (peshgi) obtained by him or by any of the members of his family [whether or not such advance (peshghi) is evidenced by any, document] and in consideration of the interest, if any, due on such advance (peshgi), or (ii) in pursuance of any customary or social obligation, or 1325 (iii) for any economic consideration received by him or by any of the members of his family; he would- (1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefits of the creditor, for a specified period of for an unspecified period, either without wages or for nominal wages, or (2) forfeit the freedom of employment or adopting other means of livelihood for a specified period or for an unspecified period, or (3) forfeit the right to move freely from place to place, or (4) forfeit the right to appropriate or sell at market value any of his property or product or his labour or the labour of a member of his family or any person dependent on him, and includes the system of forced or partly forced, labour under which a surety for a debtor enters, or has or is presumed to have, entitled, into an agreement with the creditor to the effect that in the event of the failure of the debtor, to repay the debt, he would render the bonded labour on behalf of the debtor; 4. Besides, in these Shariat Petitions, some of the provisions of "the Act" i.e. sections 5, 6, 7, 8 and 11 have also been brought tinder challenge as being contrary to the Islamic Injunctions. These sections read as under- Section 5. Agreement custom; etc to be void.---Any custom or tradition or practice or any contract, agreement or other instrument, whether entered into or executed before or after the commencement of this Act, by virtue of which any person, or any member of his family, is 1326 required to do any work or render any service as a bonded labourer, shall be void and inoperative. Section 6. Liability to repay bonded debt to stand extinguished.--On the commencement of this Act, every obligation of a bounded labour to repay any bonded debt, or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall stand extinguished. (2) After the commencement of this Act, no suit or other proceedings shall lie in any Civil Court, Tribunal or before any other authority for the recovery of any bonded debt, or any part thereof. (3) Every decree or order for the recovery of bonded debt, passed before the commencement of this Act and not fully satisfied before such commencement, shall be deemed, on such commencement, to have been fully satisfied. (4) Where, before the commencement of this Act, possession of any property belonging to a bonded labourer or a member of his family was forcibly taken by any creditor for the recovery of any bonded debt, such property shall be restored, within ninety days of such commencement, to the possession o1' the person from whom it was seized. (5) Every attachment made before the commencement of this Act for the recovery of any bonded debt shall, on such commencement, stand vacated; and, where, in pursuance of such attachment, any movable property of the bonded labourer was seized and removed from his custody and kept in the custody of any Court, Tribunal or other authority pending sale thereof, such movable property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer: Provided that, where any attached property was sold before the commencement of this Act, in execution of a decree or order for the recovery of a bonded debt, such sale shall not be affected by any provision of this Act. (6) Subject to the proviso to subsection (5), any sale, transfer or assignment of any property of a bonded labourer made in any manner whatsoever before the commencement of this Act for 1327 recovery of bonded debt shall not be deemed to have created or transferred any right, or interest in or encumbrance upon any such property and such property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer. (7) If restoration of the possession of any property referred to in subsection (4) or subsection (5) or subsection (6) is not made within ninety days from the commencement of this Act, the aggrieved person may, within such time as may be prescribed, apply to the prescribed authority for the restoration of the possession of such property and the prescribed authority may, after giving the creditor a reasonable opportunity of being heard, direct the creditor to restore to the applicant the possession of the said property within such time as may be specified in the order. (8) An order made by any prescribed authority under sub-section (7) shall be deemed to be an order made by a Civil Court and may be executed by the Court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction of the creditor voluntarily resides or carries on business or personally works for gain. (9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour system, including a suit or proceeding for the recovery of any advance (peshgi) made to a bonded labourer, is pending at the commencement of this Act, such suit or other proceedings shall, on such commencement, stand dismissed. (10) On the commencement of this Act, every bonded labourer who has been detained in civil prison, whether before or after judgment, shall be released from detention forthwith. Section 7. Property of bonded labourer to be freed from mortgage, etc.---(1) All property vested in a bonded labourer which, was immediately before the commencement of this Act, under any mortgage, charge, lien or other encumbrance in connection with any bonded debt shall, insofar as it is relatable to the bonded debt, stand freed and discharged from such mortgage, charge, lien or other encumbrance; and where any such property was, immediately before the commencement of this Act, in the possession of the mortgagee or the holder of the charge, lien or encumbrance, such property shall, except where it was subject to any other charge, on such commencement, be restored to the possession of the bonded labourer. 1328 (2) If any delay is made in restoring any property referred to in subsection (1) to the possession of the bonded labourer, such labourer, shall be entitled, on and from the date of such commencement, to recover from the mortgagee or holder of the lien, charge or encumbrance, such mesne profits as may be determined by the Civil Court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction such property is situated. Section 8. Creditor not to accept payment against extinguished debt.---(1) No creditor shall accept any payment against any bounded debt which has been extinguished or deemed to have been extinguished or fully satisfied by virtue of the provisions of this Act. (2) Whoever contravenes the provision of subsection (1), shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than fifteen thousand rupees, or with both. (3) The Court convicting any person under subsection (2) may, in addition to the penalties which may be imposed under that subsection, direct such person to deposit in Court, the amount accepted in contravention of the provisions of subsection (1), within such period as may be specified in the order, for being refunded to the bonded labourer. Section 11. Punishment for enforcement of bonded labour.---Whoever, after the commencement of this Act compels any person to render any bonded labour shall be punishable with imprisonment for a terms which shall not be less than two years nor more than five years, or with fine which shall not be less than fifty thousand rupees, or with both. 5. The facts, in brief, necessary to understand the genesis of these" cases are as follows. Two complaints, one by the labourers and other by the owners of some brick kilns, moved before Supreme Court of Pakistan, were taken up for adjudication by it in exercise of its powers under Article 184 of the Constitution of Islamic Republic of Pakistan. The complaint made by the labourers was that the owners were pressing them to work at their brick Kilns against Peshgis (advances) and on their refusal they were being maltreated. On the other hand the grievance of the brick kiln owners was that the labourers, after having received substantial amounts in advance with the - undertaking to work at their respective brick kilns, had ceased to do so causing, immense loss to them. 1329 All concerned were heard at considerable length by the Supreme Court. Ultimately, a broad agreement was reached, leading to the following interim order dated 17-9-1988:-- (i) Peshgi system to be discontinued forthwith except that up-to one week' estimated wages may be paid by the owner to the worker as advance against proper receipt. (ii) The payment shall be made to the worker concerned or the head of the household, direct in cash. The receipt shall be issued in duplicate-one to be retained by each. (iii) The institution of "Jamadarni" is finished and he is excluded for all limes. No payment for others shall be made to him nor shall it be acknowledged in any forum, as due in any form, if claimed to have been made through him. (iv) The institution of "Jamadarni" is likewise finished altogether. (v) Every case registered anywhere in Punjab by the police, which deals with directly or indirectly, any of the constituents of the practice of bonded labour in the brick-kiln industry, shall be reported to the Advocate-General, with a copy of the F.I.R. within 24 hours. The Advocate-General shall submit a photocopy of the F.I.R. and other documents, if any, with his own comments, within further 24 hours, to the Supreme Court. (vi) Past Pesh is for the time being shall not be treated as void and unrecoverable. However, they shall not at all be recovered in any form through police or through the employment of the so-called "labour" under the "peshgi recovery arrangement" or through any coercive measure; and further orders shall be made by the Court in this behalf including the request for utilization of the Zakat fund for the discharge of so-called bad debts of Peshgi. The question, whether recoveries would be abolished altogether and whether Legislation shall be made on the lines as done in India, is deferred for the time being, for six months. This aspect shall be reviewed in the light of the working of these arrangements to which all concerned have agreed if approved by Court. (vii) Filing of Habeas Corpus petitions shall not be stopped. However, all concerned have 1330 agreed that if' the arrangement agreed upon or put into practice the need for filing. false/genuine Habeas Corpus petitions would not arise. The Advocate-General shall however, appear personally in every Habeas Corpus petition whether in the High Court or in the Supreme Court. (viii) The owners shall not directly ask or pressurize any labourer for employing the womenfolk or children. However, if the latter do so at their own risk and responsibility, no complaint shall then he made against the Bhatta owners in this behalf. The head of the household who employs any of their womenfolk against her wishes and or children, might in proper cases, be proceeded against. The payment made to the head of the household including that of his family members made, female, shall be in the name of the head of the household. Separate recipients may not be mentioned in the formal registers and receipts. (ix) No deduction whatsoever shall be made from wages; or the number of bricks, if, they are more than 1000 shall be counted as 1000 in any garb. The damage/loss to the bricks suffered on account of rain shall be wholly borne by the owner. Similarly, no other deduction including that of Past Peshgi, loans including those for marriages or for medical treatment etc. shall be made from the wages. (x) Payment made by the owner to the labourer in addition to the wages whether in the form of formal loan or otherwise for marriages and other ceremonies or for medicines or other purposes shall not be recoverable from the labourer. If genuinely paid/spent they shall be treated as for good will or donation. (xi) Other arrangements that may be specified at the final stage in the final Judgment. " 6. The matter was disposed of on 15-3-1989 with the following salient directions:-- (i) Past unreturned Peshgis (advances) given to the labourers would be treated outstanding against them. (ii) Peshgi system in future would be discontinued. 1331 (iii) In future payment of wages would be made to the labourers on daily, weekly, fortnightly and monthly basis as agreed upon between the parties. (iv) Jamadari system is to cease forthwith. (v) The owners shall not be directly or indirectly ask or pressurize any labourer for employing womenfolk or children. This judgments is reported as "In The Matter of Enforcement of Fundamental Rights Re: Bonded Labour In Brick Kiln Industry" 1989 SCMR 139). In 1989 another case pertaining to brick kiln industry qua dispute between labourers and the brick kiln owners came up before Supreme Court of Pakistan in a case titled "Darshan Masih alias Rehmatay and others v. The State".' heir Lordship took great pains in resolving it. The hearing of the case went on for considerable period, Certain suggestions/recommendations were made by different Committees constituted by the Court. This case was decided on 15-3-1989 with the directions, inter alia, that the important elements in the Fundamental Rights regarding prohibition of forced labour, dignity of man, freedom of movement, freedom of trade, business or profession etc. should be put in consolidated form. It was observed that "it might be necessary to define the expression "forced labour" with illustrations of its different forms; in such a manner, so as to minimize any confusion about its real purport as also the resultant unproductive litigation. For the same purpose the other important elements in these Fundamental Rights, may be collected together and put in a selfcontained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam.---This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights, the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen".----Pages 545, 546 of the report--(PLD 1990 SC 513). 1332 The matter was ultimately disposed of in terms of the agreed order dated 15-3-1989 (reproduced hereinabove in para. 6 ibid). Thus the peshgi system and Jamadari system were done away with for all times to come by Hon'ble Supreme Court. 7. Pursuant to the above two land-mark judgments of the apex Court of the country, the legislature passed the Bonded Labour System (Abolition) Act, 1992, some of the provisions whereof (noted in para. 4 ibid) have now been brought under challenge by the brick kiln owners through these Shariat Petitions. 8. It is manifest that the above two judgments of the Supreme Court of Pakistan, even if not to be equated with a "judgment in rem," are authoritative on account of their Constitutional status and as such conclusive of the matters/issues adjudicated upon. We closely questioned learned counsel for the petitioners. in all these petitions, to demonstrate, if possible, that the impugned provisions of "the Act" were violative of the directions /guidelines given by Supreme Court in the above judgment. He failed to do so. We are fully satisfied that "the Act" was passed by the legislature strictly in line with directives of the Supreme Court. By purporting to challenge the vires of the impugned provisions of "the Act" what the petitioners really seek is the effacement of the binding effect of the two judgments, which is not permissible in law. The judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment. We may refer with some advantage to two decisions from Indian jurisdiction i.e. "M/s Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others" (AIR 1985 Supreme Court 621) and "M/s Star Diamond Co. India versus Union of India and others" (AIR 1987 Supreme Court 179), wherein it was held that Supreme Court decision was binding on all persons though they were not party before l Supreme Court. Even an obiter in a judgment by Supreme Court carries bindings effect. See "National Bank of Pakistan v. Banking Tribunal and others" (PLD 1994 Karachi 358 at 362) and M.Z.Khan v. Aziz-ud-Din Ahmad Khan" (2004 YLR 84). 9. In our view "the Act", as a whole, is a beneficial statutory dispensation of vital importance as 1333 it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc. 10. Mr. Irshad lhmad Qureshi, learned counsel for the petitioners tried to submit that the above judgments were delivered by the Supreme Court of Pakistan under Article 184 of the Constitution of Islamic Republic of Pakistan to ensure that the fundamental rights of the parties to the dispute i.e. brick kilns owners on the one hand and the labourers working in the said brick kilns on the other were protected and their denial/violation was checked. The main thrust of his argument was that the Supreme Court did not consider the matter in the light of Islamic Injunctions on the subject and as such the petitioners were within their rights to assail the relevant provisions of "the Act" i.e. Bonded Labour System. (Abolition) Act, 1992 as being violative of Holy Quran and Sunnah. 11. While arguing on merits of these petitions, Mr. Irshad Ahmed Qureshi, learned counsel for the petitioners tried to demonstrate that the Peshgi system, prevalent in the brick kilns, was not against the Injunctions of Islam. According to him, the labourers used to perform their duties pursuant to lawful agreements between the parties, which stood sanctified by Injunctions of Islam. In this view of the matter the impugned provisions of "the Act" regarding abolition of Peshgi system and branding the labourers working in the brick kilns as "bonded labour" were liable to be declared as contrary to mandate of Holy Quran and Sunnah. In support of his submissions learned counsel relied upon the following Verse from the Holy Quran:-- O . ye who believe, fulfil your undertakings. (5: 1) Besides, learned counsel also relied upon the following Hadith of the Holy Prophet (peace be upon him). 1334 He, who is devoid of honesty does not possess faith and there is no Deen for one who does not fulfil his contract (promise). It was argued that the Peshgi amounts were being given to the workers in the brick kiln under valid and lawful agreements and therefore, there was no justification available in law for Legislature to abolish the Peshgi system vide section 4 of "the Act" "Jamadari system" was also necessary to be kept alive so as to enable the brick kiln owners to keep watch over the performance of the workers with regard to the job of brick making entrusted to them. 12. On the other hand both learned Standing counsel for the Federal Government and Miss Asma Jahangir Advocate, learned amicus curiae vehemently opposed these petitions both on the ground of maintainability as well as on merits. 13. A perusal of the judgments of the Supreme Court (supra) would show that these indeed protected/upheld the following fundamental rights of the labourers: (i) Security of life or liberty of a person---Article 9. (ii) Safeguard as to arrest and detention---Article 10. (iii) Prohibition of all forms of forced labour---Article 11. (iv) Upholding of inviolability of dignity of man---Article 14. (v) Guarantee of freedom of movement---Article 15. 1335 (vi) Freedom of trade, business or profession---Article 18. 14. On 10th June, 1930 the General Conference of the International Labour Organization convened a conference at Geneva and adopted certain proposals to take the form of International Convention about Forced or Compulsory Labour. Pakistan ratified this Convention known as "29th Forced Labour Convention, 1930" on 23-12-1957. Two Articles of this convention are relevant in the context of the controversy involved in these cases. These are reproduced as under:-- "Article 4. 1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. 2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member. Article 5. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilize or in which they trade. " 15. Some of the human rights and freedoms were compendiously recounted in the Universal Declaration of Human Rights, which was proclaimed by United Nations on 10th December, 1948. It sought to uphold the following rights of human beings- 1336 (1) Article 3. Every one has the right to life, liberty and security of person. (2) Article 4. No one shall be held for slavery or for servitude. (3) Article 5. No one shall be subjected to torture or cruel, inhuman or degrading treatment. The emphasis of the above Charter of the United Nations was largely due to the abuse of power of which totalitarian regimes before the second world war were guilty. It was intended to enable the individual to claim that he was a free person and entitled to secure his free development as such. The right to work, the right to a fair wage or leisure to which a labourer could lay claim were declared to be inviolable. 16. As against the above, significantly, Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandments. In the context of the controversy involved in these Shariat petitions, we shall refer to the rights of the labourers /workers only, in the sequel. 17. To begin with, there is Hadith of Holy Prophet (peace by upon him) for discharging the financial obligations. (pay every rightful claimant his dues). The Holy Quran, in relation to the labour of Prophet Moses at Prophet Shoaib's house, has succinctly discussed an event. The Prophet Shoaib said:-- 1337 (And I do not wish to put you unnecessarily hard labour. By the grace of God, you will find me straightforward in these matters), (28:27) The Holy Prophet (peace be upon him) whenever he spoke of the master-worker relationship used to say:-- "Those who work for you are your brothers: God has ordained them to be your subordinates." 18. In Islam a workman is not entitled to any thing until his work be H finished. The Jurists have explained this issue by giving an example of brick maker. Al Murghinani has said:-- "If a person hires another to make him a certain quantity of bricks. According to Imam Abu Haneefa he is entitled to his hire when he sets up the bricks. The two disciples held that he is not entitled to his hire until he collects the brick together and build them up because it is this which completes his work, since bricks are not secured from injury until they be so collected and built up---" 1338 19. Forced labour is repugnant to Islam in the extreme. The Holy Prophet (peace by upon him) has mentioned this in one of his Ahadiths:-- "Allah said, I will be an opponent to three types of people on the Day of Resurrection:- (1) One who makes a covenant in My Name, but proves treacherous; (2) One who sells a free person and eats his price; and (3) One who employs a labourer and takes full work from him but does not pay him for his labour. " (The underlining is ours). This important Hadith was expounded by Allama Ibn-al-Hajar Asqualani as follows:-- "By taking work from someone without payment to him his legitimate wages is equivalent to pressing a free man into slavery and to produce goods from his labours, since when he has reaped the benefits without offering compensation, he has purchased the labourer and in effect has regarded him as a slave whom he has purchased 1339 20. How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator. His words, according to Hazrat Ali, were; (Always keep prayers in your mind and of the rights of the people who are your dependents). There is another Hadith worth quoting:-- "Reported by Abi-Zar from the Holy Prophet to have been said that: These (servants) are actually your brothers. Allah Almighty has only extended your authority over them and subjected them to work under your command (if the situation is that), you should provide the same food which you yourself eat and provide the same clothes which you yourself wear and never over-burden them by compelling to do a work beyond their capacity if you entrust such type of work to them then personally assist them in doing that job, (Sunan Al-Jami'a Tirmizi, Chapter 29, Hadees No. 1945 Publication, Egypt. 21. Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment. 1340 22. Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind. Says the Holy Prophet (peace be upon him): "Those who do wrong with their servants cannot enter paradise." "When a person fulfilled rights of Allah and rights of his servants he got two rewards." 23. Islam has called exploitation of worker the gravest possible violation of human rights and. decency; it has also laid down guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment. The Holy Prophet (peace be upon him) said: "The rich commits crime by defraying payment." 24. Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system 1341 favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails. 25. It is necessary at this stage to deal with the contention of the learned counsel for the petitioner that the workers employed in brick kiln performed their duties under contract with the owners. This was with O reference to the practice of payment of advance amount to them by way of p e s hgi. This contention is wholly without force. 26. The Holy Prophet (peace be upon him) has said: "A man shall honour his contracts together with all the binding conditions provided that the conditions are rightful and according to the Code of Islam. (The underlining is ours). 27. Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable /vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount. It is common knowledge that almost all the workers in the brick kiln are illiterate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (Peshi) is a tool of intimidation to extract surplus work without payment of wages therefor. 1342 28. Islam is the greatest emancipator of mankind and zealously Q upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted above would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. We are absolutely clear in our mind that the Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam. 29. It would not be out of place to humbly cite two important Ahadiths of the Holy Prophet (peace be upon him), on the subject. "Pay the worker his wages before his sweat dries." (Baihaqi Vol. 6, page 121), Mishkat Bab-al-Ijara, page 45. According to Hazrat Abu Said Khudri, the Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages. (Baihagi Al-Sunan al Kubra, Vol. 6, page 120). "The Holy Prophet (peace be upon him) prohibited hiring of a person until his wages were fixed". Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his S wages 1343 without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages. 30. For what has been said above we are clearly of the view that the impugned definition in "the Act" are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular. Likewise the impugned sections 5, 6, 7, 8 and 11 of "the Act" cannot be held to be repugnant to the Injunctions of Islam, in the light of what has been stated above as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations. 31. Before parting with the judgment, we are constrained-to observe with concern that the object for which "the Act" was passed could not be achieved so far., Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press. In Daily "Nawa-e-Waqt" Lahore, dated 2-9-2005 there was a report about order passed by Lahore High Court whereunder twenty labourers were set at liberty after their recovery from the unlawful custody of the brick kiln owner for extracting forced labour. In the same National Daily dated 10th September, 2005 there was another report about twenty six brick kiln workers, who were recovered from a brick kiln near Gujranwala Bypass, through bailiff of the Court and set at liberty by the Lahore High Court. Similar news about release of 17 bonded brick kiln labourers under the order of Sessions Judge, Peshawar appeared in daily "Dawn" dated 8th October, 2005. 32. Perusal of "the Act" would show that under section 9 the Provincial Government had been conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of "the Act" are properly enforced. Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by 1344 securing and protecting his economic interests. Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments. It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kiln labourers by many owners, in their respective jurisdictions. Likewise, no vigilance committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed us. It is for the Government functionaries to ensure the due and purposeful enforcement of "the Act", in its letter and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated. 33. It will not be out of place to mention, at this stage, that a brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry. 34. As late as in 2004 Bonded Labours Research Forum, in V collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/ study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by "the Act" i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved. 1345 35. We direct that a copy of this Judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country. 36. With the above observations/directions, these petitions are dismissed as being not maintainable as well as on merit. M.B.A./141/FSC Petitions dismissed. 1346 P L D 2006 Federal Shariat Court 1 Present: Ch. Ejaz Yousaf, C.J., Dr. Fida Muhammad Khan and Saeed-ur-Rehman Farrukh, JJ Syed SHABBIR HUSSAIN KAZMI and others---Petitioners Versus GOVERNMENT OF PAKISTAN and others---Respondents Shariat Petitions Nos. 8/L, 6/L of 1993, 36/L, 37/L, 58/L of 1992 and 10/1-, 7/L, 9/L of 1993; decided on 10th October, 2005. (a) Bonded Labour System (Abolition) Act (III of 1992)--- ----Ss. 2(a)(b), (c), (d), (e), 5, 6, 7, 8 & 11---Constitution of Pakistan (1973), Arts. 203-D, 9, 10, 11, 14, 15 & 18---Repugnancy to Injunctions of Islam---Brick kiln owners had assailed Ss.2, 5, 6, 7, 8 & 11 of the Bonded Labour System (Abolition) Act, 1992 as being repugnant to Injunctions of Islam---Validity---Held, impugned definitions in S.2, Bonded Labour System (Abolition) Act, 1992 i.e. "advance (peshgi)", "bonded debt", "bonded labour", "bonded labourer" and "bonded labour system" were not violative of Islamic Injunctions on the subject; on the contrary, these were intended to achieve the lofty ideals put forth by the Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the fundamental rights of working class in the society in particular---Likewise Ss. 5, 6, 7, 8 & 11 of the Act were not repugnant to the Injunctions of Islam as said provisions had been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations---Islamic Injunctions on the subject and principles recorded---Federal Shariat Court, however, observed that the object for which the Bonded Labour System (Abolition) Act, 1992 was passed could not be achieved so far---Court provided guidelines for the purpose and directed that copy of the present judgment be forwarded to the specified authorities. 1347 The Bonded Labour System (Abolition) Act, 1992, as a whole, was a beneficial statutory dispensation of vital importance as it was intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like Haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc. The Bonded Labour System (Abolition), Act, 1992 was passed by the legislature strictly in line with directives of the two judgments of the Supreme Court. By purporting to challenge the vires of the impugned provisions of the Act what the petitioners in the present case, really sought was the effacement of the binding effect of the two judgments, which was not permissible in law. The judgments of Supreme Court declaring the law on the subject could not be called in question by a person or by a batch of persons though he/they might not be party to the judgments. Supreme Court decision was binding on all persons though they were not party before Supreme Court. Even an obiter in a judgment by Supreme Court carries binding effect. A perusal of the said judgments of the Supreme Court would show that these indeed protected/upheld the following fundamental rights of the labourers:-- (i) Security of life or liberty of a person---Article 9. (ii) Safeguard as to arrest and detention---Article 10. (iii) Prohibition of all forms of forced labour---Article 11. 1348 (iv) Upholding of inviolability of dignity of man---Article 14. (v) Guarantee of freedom of movement---Article 15. (vii) Freedom of trade, business or profession---Article 18. Islam had fifteen centuries ago etched out in detail the fundamental rights of the mankind by unequivocal commandment. In Islam a workman is not entitled to anything until his work be finished. Forced labour is repugnant to Islam in the extreme. How much regard the Holy Prophet (peace be upon him) had for the rights of the workers is conveyed by probably his last Hadith shortly before he left this world and met his Creator. Even if the worker does not claim his rights, according to Islam the owner should be alive to his rights and cognizant of his full responsibility; he should fulfil his obligations, failing which he shall be held answerable before God on the Day of Judgment. Naturally, the proprietor or the owner would like to extract as much work as possible from the servant or worker. But Islam aims at expelling this idea out of his mind. Islam has called exploitation of worker the gravest possible violation of human rights and decency; it has also laid down, guidelines for prevention thereof. It cannot tolerate his exploitation, in any form, for a single moment. 1349 Thus Islam has formulated a social system based on the fundamental human rights and the relationship between the owner and the worker is comprehensively covered by it. This system favours neither the emergence of a capitalist class nor of a technocrat class or bureaucracy but of an egalitarian system in which the rule of law prevails. Contention of the petitioner that the workers employed in brick kiln performed their duties under contract with the owners which was with reference to the practice of payment of advance amount to them by way of peshgi, is wholly without force. Islam has taken great care to ensure that the worker is not duped/lured into performance of contract which is fraudulent/unconscionable/ vague. Such a course of action leads to exploitation of the workers as the employer by handing over certain amount to the worker obtains assurance from him that he would continue to work till such time that the services rendered by him do not offset/liquidate the liability of said amount. It is common knowledge that almost all the workers in the brick kiln are illitrate; no deed is drawn specifying the terms and conditions of the contract with the result that the worker engaged at the brick kiln is kept groping in dark, all the time, as to when he would be treated to have discharged the liability qua the advance amount. After extracting sufficient work from him, if and when the worker approaches the employer for settlement of account, he is usually confronted with the reply that he had yet to complete the job entrusted to him. In the meantime, the advance amount having been utilized by the worker, the employer conveniently hands over further amount to him so as to keep him engaged at his brick kiln. This process goes on ad infinitem. There cannot be worse form of exploitative bondage of labour. The advance (peshgi) is a tool of intimidation to extract surplus work without payment of wages therefor. Islam is the greatest emancipator of mankind and zealously upholds the dignity of worker in particular. Perusal of the Ayats of Holy Qur'an and the Ahadiths of Prophet (peace be upon him), quoted in the judgment would prove that exploitation of down-trodden and toiling labourer is strictly forbidden so that he is saved from eking out his livelihood in abject servitude. The Peshgi system being vague and unconscionable, besides being exploitative in nature, is violative of the Injunctions of Islam. The Holy Prophet (peace be upon him) had interdicted the employment of a labourer without prior fixation of his wages. 1350 Two beneficent conclusions of far-reaching effect, are deducible from these Ahadiths. It is postulated that the nature and extent of the job entrusted to the workers should be well-defined at the time of the contract. The worker, on the completion of the job, is to be paid his wages without any delay whatsoever. Thus only piece-rate work can be entrusted to the worker in the brick kiln industry i.e. specific number of bricks to be prepared in lieu of mutually agreed amount as his wages. Definition in the Bonded Labour System (Abolition) Act, 1992 are not violative of Islamic Injunctions on the subject. On the contrary, these are intended to achieve the lofty ideals put forth by Holy Qur'an and Sunnah of upholding the dignity of man in general and preservation/protection of the Fundamental rights of working class in the society in particular. Likewise the impugned sections 5, 6, 7, 8 and II of the Act cannot be held to be repugnant to the Injunctions of Islam, as these provisions have been incorporated therein with the object of abolition of bonded labour in all its forms and manifestations. Federal Shariat Court, however, observed that the object for which the Act was passed could not be achieved so far. Almost every day reports about unlawful detention of labourers, working in different brick kilns along with their family members, for extracting forced labour from them, appear in the National press. Perusal of the act would show that under section 9 the Provincial Government had been conferred powers to impose such duties on a District Magistrate (now District Nazim), as may be necessary to ensure that the provisions of the Act are properly enforced. Likewise, under section 10 the District Magistrate/District Nazim and the officer designated by him have been held responsible for promotion of the welfare of the freed bonded labourer by securing and protecting his economic interests. Section 15 provides for constitution of Vigilance Committees at District level comprising of elected representatives of the area, representatives of the District Administration, Bar 1351 Associations, Press, recognized Social Services and Labour Departments of the Federal and Provincial Governments. It is unfortunate that so far no specified authority, (vide section 9) in any district in Pakistan has taken care to exercise its powers so as to alleviate the misery and torture being inflicted upon the brick kiln labourers by many owners, in their respective jurisdictions. Likewise, no Vigilance Committees have been formed anywhere in the country. This state of affairs is alarming, to say the least. It has immensely distressed the Court. It is for the Government functionaries to ensure the due and purposeful enforcement of the Act, in its letter, and spirit, so that the menace of forced labour, rampant in brick kilns, and other similar establishments, all over the country, is checked and comprehensively exterminated. A brick kiln squarely falls within the purview of "factory" vide section 20) of the Factories Act, 1934. Industrial Relations Ordinance, 1969 and West Pakistan (Standing Orders) Ordinance, 1968 are also attracted to such establishment. It is high time that all the brick kilns are duly registered as factories to enable the Labour Inspector to pay regular visits to them and take suitable action/measures, in accordance with the Labour Laws, to achieve the objective of banishment of practice of forced labour from this industry. As late as in 2004 Bonded Labours Research Forum; in collaboration with the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan and I.L.O. carried out assessment/study of bonded labour qua different sectors of life in Pakistan, inter alia, the brick kilns. Dr. Ali Ercelawn of Pakistan Institute of Labour and Research Forum did a commendable job in preparing a paper after thorough study of the problem, suggesting ways and means of curbing the pernicious practice of bonded labour in brick kilns and other similar segments of society. No action, so far, seems to have been taken on this report either. The statutory functionaries must realize their responsibility of enforcement of the mechanism as provided by the Act i.e. Bonded Labour System (Abolition) Act, 1992 and see to it that the desired results are achieved. Federal Shariat Court directed that a copy of present judgment be forwarded to (i) Ministry of Law, Justice and Parliamentary Affairs; (ii) Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, as well as to all the Provincial Governments in the Country. 1352 Enforcement of Fundamental Rights re: Bonded Labour in Brick Kiln Industry 1989 SCMR 139; PLD 1990 SC 513; Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358; M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84; 5:1; 29th Forced Labour Convention, 1930; Universal Declaration of Human Rights by United Nations on 10th December, 1948; Charter of the United Nations; 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No.1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol.6, P. 120 (b) Constitution of Pakistan (1973)--- ----Art. 189---Judgment of Supreme Court---Binding nature---Judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons though he/they might not be party to the judgment; even an obiter in a judgment by Supreme Court carries binding effect. Messrs Shenoy and Co., Bangalore and others v. Commercial Tax Officer, Circle II, Bangalore and others AIR 1985 SC 621; Messrs Star Diamond Co. India v. Union of India and others AIR 1987 SC 179; National Bank of Pakistan v. Banking Tribunal and others PLD 1994 Kar. 358 and M.Z. Khan v. Aziz-ud-Din Ahmad Khan 2004 YLR 84 ref. (c) Islamic jurisprudence— 1353 ----Dignity of labour in Islam. 28:27; Sunan Al-Jami'a Tirmizi Chapter 29 Hadees No. 1945 Publication, Egypt; Baihaqi, Vol.6, p.121 and Baihaqi al-Sunan al Kubra, Vol. P. 120 Irshad Ahmad Qureshi for Petitioners (in Sh.Ps. Nos.8/L, 6/L, 7/L, 9/L of 1993 and 36/L, 37/L of 1992). S.M. Ayub Bukhari for Petitioner (in Sh. P. No.58/I of 1992). Irshad Ahmad Qureshi and Malik Rab Nawaz Noon for Petitioners (in Sh. P. No. 10/L of 1993. Sardar Abdul Majeed for Federal Government (in Sh.P. No.9-L of 1993). Amin-ud-Din Brazo, Addl.A.-G. Balochistan and Muhammad Shuaib Abbasi, for A.-G. Balochistan (in Sh.P. No.9-L of 1993). 1354 Shafqat Munir Malik, Asstt. A.-G. for A.-G. Punjab (in Sh.P. No.9-L of 1993). Muhammad Arshad Lodhi, A.A.-G. and Muhammad Shoaib Abbasi for A.-G. Sindh (in Sh.P. No.9-L of 1993). Muhammad Sharif Janjua for A.-G., N.-W.F.P. (in Sh. P. No.9-L of 1993). Miss Asma Jahangir: Amicus Curiae. Zafarullah Khan for Pakistan Institute of Labour Education and Research. Dates of hearing: 2nd November, 14th December, 2004, 22nd and 23rd February, 2005. JUDGMENT SAEED-UR-REHMAN FARRUKH, J.---By this judgment we propose to dispose of the following eight matters as common questions of law and facts arise therein: Shariat Petition No.36-L of 1992. (1) (Rana Saeed-uz-Zaman and others v. Government of Pakistan). Shariat Petition No.37-L of 1992. 1355 (2) (Niaz Ali and others v. Government of Pakistan). Shariat Petition No.58-1 of 1992. (3) (Ghulam Khan Bangash v. Federation of Pakistan). Shariat Petition No.6-L of 1993. (4) (Haji Muhammad Amin and others v. Secretary, Ministry of Law). Shariat Petition No.7/L of 1993. (5) (Mian M. Akram and others v. Secretary, Ministry of Law). Shariat Petition No.8-L of 1993. (6) (Syed Shabbir Hussain and others v. Government of Pakistan). Shariat Petition No.9-L of 1993 (7) (Gulfraz Ahmad and others v. Secretary, Ministry of Law, Government of Pakistan). Shariat Petition No. 10-L of 1993. 1356 (8) (Haji Muhammad Aslam and others v. Secretary, Ministry of Law). 2. Through the above Shariat Petitions, under Article 203-D of the Constitution of the Islamic Republic of Pakistan, the petitioners who are brick kiln owners, have assailed various provisions of the Bonded Labour System (Abolition) Act, 1992 (hereinafter called "the Act"), as being repugnant to injunctions of Holy Quran and Sunnah. Following declaration has been sought from this Court:-- "that the definitions of the `bonded debt', 'bonded labour', 'bonded labourer' and 'bonded labour system' may kindly be declared as repugnant to the Injunctions of Islam." 3. The impugned definitions are reproduced as under:-- (a) "advance (peshgi)" means an advance (peshgi), whether m cash or in kind, or partly in cash or partly in kind, made by one person (hereinafter referred to as, the creditor) to another' persons (hereinafter referred to as the debtor); (b) "bonded debt" means an advance (peshgi) obtained, or presumed to have been obtained, by a bonded labourer under, or in pursuance of, the bonded labour system". (c) "bonded labour" means any labour or service rendered under the bonded labour system; (d) "bonded labourer" means 'a labourer who incurs, or has, or is presumed to have, incurred, a bonded debt; (e) "bonded labour system" means the system of forced, or partly forced, labour under which a debtor enters, or has, or is presumed to have, entered into an agreement with the creditor to the effect that,-1357 (i) in consideration of an advance (peshgi) obtained by him or by any of the members of his family [whether or not such advance (peshghi) is evidenced by any, document] and in consideration of the interest, if any, due on such advance (peshgi), or (ii) in pursuance of any customary or social obligation, or (iii) for any economic consideration received by him or by any of the members of his family; he would— (1) render, by himself or through any member of his family, or any person dependent on him, labour or service to the creditor, or for the benefits of the creditor, for a specified period of for an unspecified period, either without wages or for nominal wages, or (2) forfeit the freedom of employment or adopting other means of livelihood for a specified period or for an unspecified period, or (3) forfeit the right to move freely from place to place, or (4) forfeit the right to appropriate or sell at market value any of his property or product or his labour or the labour of a member of his family or any person dependent on him, and includes the system of forced or partly forced, labour under 1358 which a surety for a debtor enters, or has or is presumed to have, entitled, into an agreement with the creditor to the effect that in the event of the failure of the debtor, to repay the debt, he would render the bonded labour on behalf of the debtor; 4. Besides, in these Shariat Petitions, some of the provisions of "the Act" i.e. sections 5, 6, 7, 8 and 11 have also been brought under challenge as being contrary to the Islamic Injunctions. These sections read as under:-- Section 5. Agreement custom, etc., to be void.---Any custom or tradition or practice or any contract, agreement or other instrument, whether entered into or executed before or after the commencement of this Act, by virtue of which any person, or any member of his family, is required to do any work or render any service as a bonded labourer, shall be void and inoperative. Section 6. Liability to repay bonded debt to stand extinguished. (1) On the commencement of this Act, every obligation of a bounded labour to repay any bonded debt, or such part of any bonded debt as remains unsatisfied immediately before such commencement, shall stand extinguished. (2) After the commencement of this Act, no suit or other proceedings shall lie in any Civil Court, Tribunal or before any other authority for the recovery of any bonded debt or any part thereof. (3) Every decree or order for the recovery of bonded debt, passed before the commencement of this Act and not fully satisfied before such commencement, shall be deemed, on such commencement, to have been fully satisfied. (4) Where, before the commencement of this Act, possession of any property belonging to a bonded labourer or a member of his family was forcibly taken by any creditor for the recovery of any bonded debt, such property shall be restored, within ninety days of such commencement, to the possession of the person from whom it was seized. 1359 (5) Every attachment made before the commencement of this Act for the recovery of .any bonded debt shall, on such commencement, stand vacated; and, where, in pursuance of such attachment, any movable property of the bonded labourer was seized and removed from his custody and kept in the custody of any Court, Tribunal or other authority pending sale thereof, such movable property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer: Provided that, where any attached property was sold before the commencement of this Act, in execution of a decree or order for the recovery of a bonded debt, such sale shall not be affected by any provision of this Act. (6) Subject to the proviso to subsection (5), any sale, transfer or assignment of any property of a bonded labourer made in any manner whatsoever before the commencement of this Act for recovery of bonded debt shall not be deemed to have created or transferred any right, or interest in or encumbrance upon any such property and such property shall be restored, within ninety days of such commencement, to the possession of the bonded labourer. (7) If restoration of the possession of any property referred to in subsection (4) or subsection (5) or subsection (6) is not made within ninety days from the commencement of this Act, the aggrieved person may, within such time as may be prescribed, apply to the prescribed authority for the restoration of the possession of such property and the prescribed authority may, after giving the creditor a reasonable opportunity of being heard, direct the creditor to restore to the applicant the possession of the said property within such time as may be specified in the order. (8) An order made by any prescribed authority under sub-section (7) shall be deemed to be an order made by a Civil Court and may be executed by the Court of the lowest pecuniary jurisdiction within the local limits of whose jurisdiction of the creditor voluntarily resides or carries on business or personally works for gain. (9) Where any suit or proceeding for the enforcement of any obligation under the bonded labour system, including a suit or proceeding for the recovery of any advance (peshgi) made to a bonded labourer, is pending at the commencement of this Act; such suit or other proceedings shall, on such commencement, stand dismissed. 1360 (10) On the commencement of this Act, every bonded labourer who has been detained in civil prison, whether before or after judgment, shall be released from detention forthwith. Section 7. Property of bonded labourer to be freed from mortgage, etc.---(1) All property vested in a bonded labourer which, was immediately before the commencement of this Act, under any mortgage, charge, lien or other encumbrance in connection with any bonded debt shall, insofar as it is relatable to the bonded debt, stand freed and discharged from such mortgage, charge, lien or other encumbrance; and where any such property was, immediately before the commencement of this Act, in the possession of the mortgagee or the holder of the charge, lien or encumbrance, such property shall, except where it was subject to any other charge, on such commencement, be restored to the possession of the bonded labourer. (2) If any delay is made in restoring any property referred to in subsection (1) to the possession of the bonded labourer, such labourer, shall be entitled, on and from the date of such commencement, to recover from the mortgagee or holder of the lien, charge or encumbrance, such mesne profits as may be determined by the Civil Court of the lowest pecuniary jurisdiction within ,the local limits of whose jurisdiction such property is situated. Section 8. Creditor not to accept payment against extinguished debt.---(1) No creditor shall accept any payment against any bonded debt which has been extinguished or deemed to have been extinguished or fully satisfied by virtue of the provisions of this Act. (2) Whoever contravenes the provision of subsection (1), shall be punishable with imprisonment for a term which may extend to three years, or with fine which shall not be less than fifteen thousand rupees, or with both. (3) The Court convicting any person under subsection (2) may, in addition to the penalties which may be imposed under that subsection, direct such person to deposit in Court, the amount accepted in contravention of the provisions of subsection (1), within such period as may be specified in the order, for being refunded to the bonded labourer. 1361 Section 11. Punishment for enforcement of bonded labour.---Whoever, after the commencement of this Act compels any person to render any bonded labour shall be punishable with imprisonment for a terms which shall not be less than two years nor more than five years, or with fine which shall not be less than fifty thousand rupees, or with both. 5. The facts, in brief, necessary to understand the genesis of these cases are as follows. Two complaints, one by the labourers and other by the owners of some brick kilns, moved before Supreme Court of Pakistan, were taken up for adjudication by it in exercise of its powersunder Article 184 of the Constitution of Islamic Republic of Pakistan. The complaint made by the labourers was that the owners were pressing them to work at their brick Kilns against Peshgis (advances) and on their refusal they were being maltreated. On the other hand the grievance of the brick kiln owners was that the labourers, after having received substantial amounts in advance with the undertaking to work at their respective brick kilns, had ceased to do so causing immense loss to them. All concerned were heard at considerable length by the Supreme Court. Ultimately, a broad agreement was reached, leading to the following interim order dated 17-9-1988:-- "1. (i) Peshgi system to be discontinued forthwith except that up-to one week' estimated wages may be paid by the owner to the worker as advance against proper receipt. (ii) The payment shall be made to the worker concerned or the head of the household, direct in cash. The receipt shall be issued in duplicate-one to be retained by each. (iii) The institution of "Jamadarni" is finished and he is excluded for all times. No payment for others shall be made to him nor shall it be acknowledged in any forum, as due in any form, if claimed to have been made through him. (iv) The institution of "Jamadarni" is likewise finished altogether. (v) Every case registered anywhere in Punjab by the police, which deals with directly or indirectly, any of the constituents of the practice of bonded labour in the brick-kiln industry, 1362 shall be reported to the Advocate-General, with a copy of the F.I.R. within 24 hours. The Advocate-General shall submit a photocopy of the F.I.R. and other documents, if any, with his own comments, within further 24 hours, to the Supreme Court. (vi) Past Peshgis for the time being shall not be treated as void and unrecoverable. However, they shall not at all be recovered in any form through police or through the employment of the socalled "labour" under the "peshgi recovery arrangement" or through any coercive measure; and further orders shall be made by the Court in this behalf including the request for utilization of the Zakat fund for the discharge of so-called bad debts of Peshgi. The question, whether recoveries would be abolished altogether and whether Legislation shall be made on the lines as done in India, is deferred for the time being, for six months. This aspect shall be reviewed in the light of the working of these arrangements to which all concerned have agreed if approved by Court. (vii) Filing of Habeas Corpus petitions shall not be stopped. However, all concerned have agreed that if the arrangement agreed upon or put into practice the need for filing false/genuine Habeas Corpus petitions would not arise. The Advocate-General shall however, appear personally in every Habeas Corpus petition whether in the High Court or in the Supreme Court. (viii) The owners shall not directly ask or pressurize any labourer for employing the womenfolk or children. However, if the latter do so at their own risk and responsibility, no complaint shall then be made against the Bhatta owners in this behalf. The head of the household who employs any of their womenfolk against her wishes and or children, might in proper cases, be proceeded against. The payment made to the head of the household including that of his family members male, female, shall be in the name of the head of the household. Separate recipients may not be mentioned in the formal registers and receipts. (ix) No deduction whatsoever shall be made from wages; or the number of bricks, if they are more than 1000 shall be counted as 1000 in any garb. The damage/loss to the bricks suffered on account of rain shall be wholly borne by the owner. Similarly, no other deduction including that of Past Peshgi, loans including those for marriages or for medical treatment etc. shall be made from the wages. (x) Payment made by the owner to the labourer in addition to the wages whether in the form of formal loan or otherwise for marriages and other ceremonies or for medicines or other purposes shall not be recoverable from the labourer. If genuinely paid/spent they shall be treated as for good will or donation. 1363 (xi) Other arrangements that may be specified at the final stage in the final Judgment." 6. The matter was disposed of on 15-3-1989 with the following salient directions:-- (i) Past unreturned Peshgis (advances) given to the labourers would be treated outstanding against them. (ii) Peshgi system in future would be discontinued. (iii) In future payment of wages would be made to the labourers on daily, weekly, fortnightly and monthly basis as agreed upon between the parties. (iv) Jamadari system is to cease forthwith. (v) The owners shall not be directly or indirectly ask or pressurize any labourer for employing womenfolk or children. This judgments is reported as ",In The Matter of Enforcement of Fundamental Rights Re: Bonded Labour In Brick Kiln Industry" 1989 SCMR 139). In 1989 another case pertaining to brick kiln industry qua dispute between labourers and the brick kiln owners came up before Supreme Court of Pakistan in a case titled "Darshan Masih alias Rehmatay and others v. The State". Their Lordship took great pains in resolving it. The hearing of the case went on for considerable period, Certain suggestions/recommendations were made by different Committees constituted by the Court. 1364 This case was decided on 15-3-1989 with the directions, inter alia, that the important elements in the Fundamental Rights regarding prohibition of forced labour, dignity of man, freedom of movement, freedom of trade, business or profession etc. should be put in consolidated form. It was observed that "it might be necessary to define the expression "forced labour" with illustrations of its different forms; in such a manner, so as to minimize any confusion about its real purport as also the resultant unproductive litigation. For the same purpose the other important elements in these Fundamental Rights, may be collected together and put in a selfcontained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam.---This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights, the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen".----Pages 545, 546 of the report--(PLD 1990 SC 513). The matter was ultimately disposed of in terms of the agreed order dated 15-3-1989 (reproduced hereinabove in para. 6 ibid). Thus the peshgi system and Jamadari system were done away with for all times to come by Hon'ble Supreme Court. 7. Pursuant to the above two land-mark judgments of the apex Court of the country, the legislature passed the Bonded Labour System (Abolition) Act, 1992, some of the provisions whereof (noted in para. 4 ibid) have now been brought under challenge by the brick kiln owners through these Shariat Petitions. 8. It is manifest that the above two judgments of the Supreme Court of Pakistan, even if not to be equated with a "judgment in rem," are authoritative on account of their Constitutional status and as such conclusive of the matters/issues adjudicated upon. We closely questioned learned counsel for the petitioners, in all these petitions, to demonstrate, if possible, that the impugned provisions of "the Act" were violative of the directions/guidelines given by Supreme Court in the above judgment. He failed to do so. We are fully satisfied that "the Act" was passed by the legislature strictly in line with directives of the Supreme Court. By purporting to challenge the vires of A the impugned provisions of "the Act" what the petitioners really seek is the effacement of the binding effect of the two judgments, which is not permissible in law. 1365 The judgments of Supreme Court declaring the law on the subject cannot be called in question by a person or by a batch of persons B though he/they might not be party to the judgment. We may refer with some advantage to two decisions from Indian jurisdiction i.e. "M/s Shenoy and Co., Bangalore and others Y. Commercial Tax Officer, Circle II, Bangalore and others" (AIR 1985 Supreme Court 621) and "M/s Star Diamond Co. India versus Union of India and others" (AIR 1987 Supreme Court 179), wherein it was held that Supreme Court IC decision was binding on all persons though they were not party before Supreme Court. Even an obiter in a judgment by Supreme Court carries bindings effect. See "National Bank of Pakistan v. Banking Tribunal and others" (PLD 1994 Karachi 358 at 362) and M.Z.Khan v. Aziz-ud-Din Ahmad Khan" (2004 YLR 84). 9. In our view "the Act", as a whole, is a beneficial statutory dispensation of vital importance as it is intended to curb and put to irreversible end the reprehensible institution of bonded labour not only in the brick kiln industry but also in other sectors in the country like haris tenants-at-will, labourers in mining industry, glass bangle industry, tanneries etc. 10. Mr. Irshad Ahmad Qureshi, learned counsel for the petitioners tried to submit that the above judgments were delivered by the Supreme Court of Pakistan under Article 184 of the Constitution of Islamic Republic of Pakistan to ensure that the fundamental rights of the parties to the dispute i.e. brick kilns owners on the one hand and the labourers working in the said brick kilns on the other were protected and their denial/violation was checked. The main thrust of his argument was that the Supreme Court did not consider the matter in the light of Islamic Injunctions on the subject and as such the petitioners were within their rights to assail the relevant provisions of "the Act" i.e. Bonded Labour System (Abolition) Act, 1992 as being violative of Holy Quran and Sunnah. 11. While arguing on merits of these petitions, Mr. Irshad Ahmed Qureshi, learned counsel for the petitioners tried to demonstrate that the Peshgi system, prevalent in the brick kilns, was not against the Injunctions of Islam. According to him, the labourers used to perform their duties pursuant to lawful agreements between the parties, which stood sanctified by Injunctions of Islam. In this view of the matter the impugned provisions of "the Act" regarding abolition of Peshgi system and branding the labourers working in the brick kilns as "bonded labour" were liable to be declared as contrary to mandate of Holy Quran and Sunnah. In support of his submissions learned counsel relied upon the following Verse from the Holy 1366 Quran:-- O. ye who believe, fulfil your undertakings. (5:1) Besides, learned counsel also relied upon the following Hadith of the Holy Prophet (peace be upon him). He, who is devoid of honesty does not possess faith and there is no Deen for one who does not fulfil his contract (promise). It was argued that the Peshgi amounts were being given to the workers in the brick kiln under valid and lawful agreements and therefore, there was no justification available in law for Legislature to abolish the Peshgi system vide section 4 of "the Act" "Jamadari system" was also necessary to be kept alive so as to enable the brick kiln owners to keep watch over the performance of the workers with regard to the job of brick making entrusted to them. 12. On the other hand both learned Standing counsel for the Federal Government and Miss Asma Jahangir Advocate, learned amicus curiae vehemently opposed these petitions both on the ground of maintainability as well as on merits. 13. A perusal of the judgments of the Supreme Court (supra) would show that these indeed protected/upheld the following fundamental rights of the labourers: (i) Security of life or liberty of a person---Article 9. (ii) Safeguard as to arrest and detention---Article 10. (iii) Prohibition of all forms of forced labour---Article 11. 1367 (iv) Upholding of inviolability of dignity of man---Article 14. (v) Guarantee of freedom of movement---Article 15. (vi) Freedom of trade, business or profession---Article 18. On 10th June, 1930 the General Conference of the International Labour Organization convened a conference at Geneva and adopted certain proposals to take the form of International Convention about Forced or Compulsory Labour. Pakistan ratified this Convention known as "29th Forced Labour Convention, 1930" on 23-12-1957. Two Articles of this convention are relevant in the context of the controversy involved in these cases. These are reproduced as under:-- "Article 4. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. 2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member. Article 5. No concession granted to private individuals, companies or associations shall involve any form of forced or compulsory labour for the production or the collection of products which such private individuals, companies or associations utilize or in which they trade." 1368 15. Some of the human rights and freedoms were compendiously recounted in the Universal Declaration of Human Rights, which was proclaimed by United Nations on 10th December, 1948. It sought to uphold the following rights of human beings:-- (1) Article 3. Every one has the right to life, liberty and security of person. 1369 P L D 2010 Federal Shariat Court 1 Before Dr. Fida Muhammad Khan, Salahuddin Mirza, Muhammad Zafar Yasin and Syed Afzal Haider, JJ Dr. MUHAMMAD ASLAM KHAKHI and others----Petitioners Versus THE STATE and others----Respondents Shariat Petition No.61/I with Shariat Miscellaneous Application No.10/U of 1998, Shariat Petition No.62/I of -1992 with Shariat Miscellaneous Application No.11/I of 1998, Shariat Miscellaneous Applications Nos.21/I of 1995, 16/I of 1997 19/I of 1997, Shariat Petitions Nos.12/I of 1999 and 4/I of 2004, decided on 28th August, 2009. (a) Islamic Jurisprudence--- ----Religious obligation---Need to watch, examine and adopt new developments in contemporary societies is a religious obligation of every Muslim. Hadith No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja; Ibn-e-Maja, Vol. 1 (Urdu Translation), p.143 Chap. ILM and Hadith No.28697 Bab-ul-Ilm, Vol. 10 Kunzul-Ummal quoted. 1370 (b) Constitution of Pakistan (1973)--- ----Part VII, Ch.3A [Arts.203-A to 203-J] & Art.227---"Repugnant"---Connotation and scope---Meaning and scope of the term "repugnant" is not limited only to the actual state of being contrary i.e. contrariety, conflict, antognistic, opposite or being disparate of the letter of the NASS/Injunctions of Islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible irreconcilable or even averse to the spirit of the NASS i.e. Injunctions of Islam---Principles. MacMillan: English Dictionary; Word Book Dictionary; Oxford Dictionary; Dictionary of Terms/English Urdu Vol. 3 p.1472, 1985 Edn. Printed by Urdu Science Board; Law 'Dictionary English Urdu published by National Language Authority Pakistan (based upon the famous Black's Law Dictionary); Lexicon Webster Dictionary, Vol.III, p.815; Wharton's Law Lexicon; Vishnu Bhattathiripaid v. Poulo, 1953 Ker. L.T.238: LL.R. 1952 Trav-Co. 670 = AIR 1953 Trav-Co.327(D.B); Presson v. Presson 147 p.1081, 1082, 38, Nev.203 and Words and Phrases Vol. 37, p.90 ref. (c) Pakistan Prisons Rules, 1978--- ----Rr. 180 & 181---Constitution of Pakistan (1973), Art.203-D---Notice to Railway authorities and travelling of superior class prisoners---Vires of Rr.180 & 181 of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Rules 180 & 181 of Pakistan Prisons Rules, 1978 do not contravene any of the Injunctions of Islam---Federal Shariat Court observed that it will however be appreciated that the superior class prisoner is only given the option to travel in second class compartment on the condition of payment of difference in the railway fare, both for himself and the escort---Principles. Ayat 27 Sura 22 (AI-Hajj) ref. (d) Pakistan Prisons Rules, 1978--- 1371 ----Rr. 147, 148 & 149---Prisoners Act (III of 1900), Ss.29 & 42---Constitution of Pakistan (1973), Art.203-D---Transferring certain categories of prisoners within and beyond the territorial limits of a Province and from one jail to another jail within the Province---Vires of Rr.147, 148 & 149 Pakistan Prisons Rules, 1978 and Ss.29 & 42, Prisoners Act, 1900' on the touchstone- of Injunctions of Islam--Rules 147, 148 & 149 of the Pakistan Prisons Rules, 1978 and S.29 of Prisoners Act, 1900 are repugnant to Injunctions of Islam---Extent of repugnancy and exceptions---Principles. Federal Shariat Court observed that firstly no provision has been incorporated for any notice being given to the prisoner before his removal within or beyond the local limits of a Province and secondly arbitrary powers have been given to the Provincial Government as well as the Inspector-General of Prisons for transfer of a prisoner to different prisons within the Province and the same unfettered power is enjoyed by the Federal Government when the transfer is to be made beyond the limits of a Province, and thirdly that the right of appeal before an independent tribunal has not been provided against such routine but harsh orders; and fourthly there is no limit to the number of transfers that can be inflicted upon a prisoner. Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions of Islam. Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority. In this view of the matter the following principles should be read as part of every statute namely:- (a) Notice must issue to a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity to show cause against it. (b) The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. [Reference section 24-A General Clause Act, 1897.] (c) Right of appeal before an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority. 1372 The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and. Ayaat 6 through 8 Sura 99 of the Holy Qur'an. Direction by the Government or the Inspector General of Prison Department for removal of a prisoner from one prison to another prison within the Province or from one Province to another Province must be supported by a speaking order. Unless it is a question of dire necessity or emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know why he is being transferred away from his home town. There must be legal justification to lodge a prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to serious disadvantage, particularly of women folk and children, of prisoner. Muslims have been directed to create facilities for the people and not to add to their hardships and apprehensions: "YASSARA WA LA TOASSARA". Rules 147 through 149 of the Pakistan Prisons Rules, 1978 as well as section 29 of the Prisoners Act, 1900 are repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another Province without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reason by way of a speaking order conveyed to the detenue and without providing any remedy against exercise of such authority. Similarly the power of the Inspector General of Prisons to transfer a prisoner from one prison to another within the province without notice or consent of the prisoner and without providing a right of appeal before an independent tribunal is declared as repugnant. Federal Shariat Court observed that Chapter 7 of the Pakistan Prisons Rules, 1978 and section 29 of Prisoners Act, 1900 should be recast in a manner in which (a) arbitrary, unbridled and unfettered powers are neither given to the Government nor the Inspector General of Prisons; (b) and unless the gravity of the situation really demands an expeditious action, transfers within the Province or beyond the limits of Province, without notice or consent, should be eschewed. This however does not cover the case of a convict whose release is due and he is being transferred near his home town as provided in Rule 148 or who is required to be produced in another court in a case being tried elsewhere or there are other reasonable grounds such as safety, security or health. However the transfer policy should be based upon reasonable considerations subject of course to notice and the right of appeal or representation before an independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid grounds. 1373 The case of Ataullah Mengal v. The State PLD 1965 Kar. 350 and the case of Ali Muhammad v. State reported as 1974 PCr.LJ 249 may also be considered by the amending authorities. Present decision regarding repugnancy of the impugned provisions of law will take effect as from 1-12-2009 during which period the necessary amendments, additions or alterations may be effected by relevant authorities. PLD 1984 FSC 34; Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD 2005 FSC 3; Pakistan and others v. Public at Large PLD 1987 SC 304; Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 6 to 8 Sura 99; Ataullah Mengal v The State PLD 1965 Kar. 350 and Ali Muhammad v. State 1974 PCr.LJ 249 ref. (e) Islamic Jurisprudence-- ----Administration of justice---Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority and such principles to be read as part of every statute. The following principles should be read as part of every statute namely: (a) Notice must issue to a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity to show cause against it. (b) The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. [Reference section 24-A General Clause Act, 1897.] 1374 (c) Right of appeal before an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority. The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of Sura 84 and Ayaat 6 through 8 Sura 99 of the Holy Qur'an. (f) Federal Shariat Court Procedure Rules, 1981--- ---Rr. 7 to 16A---Filing of petition before Federal Shariat Court--Petitions, before Federal Shariat Court are to be filed in accordance with the mandated provision of the Federal Shariat Court Procedure Rules, 1981 so that the precise issues are brought before the Court for determination without loss of time---Federal Shariat Court deprecated non-vigilance of parties and Registry of the Court in that respect. (g) Islamic Jurisprudence--- ----Principle of equality vis-a-vis the teachings of Islam---Equivalence is a distinctive feature of Islam--Islam presupposes that all the human beings are equal and enjoy the same set of liberties and limitations---Equality should not be confused with classification; Islam negates discrimination but upheld reasonable classification---Principles. Holy Qur'an and the precepts of Prophet Muhammad, p.b.u.h., are vocal on the issue of equality status of human beings. The Injunctions of Islam bear ample testimony, as is evident from Ayat 13 Sura 49, that the noblest among the believers in the sight of Allah is the one who is most mindful of his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet, p.b.u.h., at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an illuminating charter of human rights arid freedoms wherein liberty and equality are declared as basic principles of Divine Message. But equality should not be confused with classification. Islam negates discrimination but uphold reasonable classification. 1375 The principle of equality between human beings is innate in Islamic teachings. When the Holy Qur'an proclaims that every human being is worthy of respect and dignity as is evident from Ayat 70, Sura 17, Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour, creed, community, country and other man made geo-political divisions, are equal. The divine statement contained in Ayat 76 Sura 38, to the effect that man was created from clay is a loud and clear proclamation that all human beings are in fact equal. Similarly the declaration contained in Ayaat 22 and 29, Sura 2 Al-Baqra, and repeated at number of places in the Holy Qur'an, namely that the bounties scattered in the cosmos are meant for the consumption of human beings, necessarily implies that human beings are not only equal but enjoy equal opportunities. The Qur'anic principle that those who do good shall inherit gardens clarifies the matter further by suggesting that the criteria of success is good conduct whether done by someone from the lower strata of society or done by a politically and financially strong person or a blue-blooded aristocrat. The right to choose, as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has been granted to all and sundry. Why? Because Islamic jurisprudence pre-supposes that all the human beings are equal and enjoy the same set of liberties and limitations. The Holy Qur'an is that revealed Book which in fact introduced the concept of unity of human race. Reference may be made to Ayat 213, Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10. Similarly the declaration that no one shall bear the burden of any other soul, as given in Ayat 164 of Sura 67, and that every one is accountable for his deeds as enunciated in Ayat 202 Sura 2, is a clear pointer towards the principle of equality. At the socio-economic and political level, the Holy Qur'an makes it abundantly clear in Ayat 35 Sura 33, that men who submit and the women who submit, the faithful men and the faithful women etc. etc. shall receive rewards. Ayat 173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid illustration of equality of all human beings irrespective of time and place of birth. Equivalence is a distinctive feature of Islam. These human friendly principles introduced by Divine Message through the honoured Prophets A.S. paved the way for humanism and the International Charter of Human Rights. Abdul Rashid v. The State 1980 SCMR 632; Waheed Akhtar v. Superintendent, Camp Jail, Lahore and another PLD 1980 Lah. 131; Ayat 13 Sura 49; Khutba of the Holy Prophet, p.b.u.h., at the, time of conquest of Macca as well as the last Sermons; Ayat 70 Sura 17, Bani Israel; Ayat 76 Sura 38; Ayaat 22 and 29; Sura 2 Al-Baqra; Ayat 104 Sura 6; Ayat 29 Sura 18; Ayat 213; Sura 2; Ayat 32 of Sura 30; Ayat 19 Sura 10; Ayat 164 Sura 67; Ayat 202 Sura 2, Ayat 35, Sura 33 and Ayat 173 Sura 7 ref. (h) Pakistan Prisons Rules, 1978--- 1376 ----Chap. 9 [Rr. 224-249] & Chap. 10 [Rr. 250-270]---Constitution of Pakistan (1973), Art.203-D--Classification and superior class prisoners---Vires of Chaps. 9 & 10 of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam--Notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence. [Qur'anic Verses extensively quoted]. (i) Interpretation of statutes--- ----Entire law on a given subject has to be seen as one integrated whole to carter to social requirement in a particular chapter of human life. (j) Islamic Jurisprudence--- ----Equality among human beings and rule of classification---Principle---Notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence. (k) Constitution of Pakistan (1973)--- ----Art. 25---Equal protection of law and reasonableness of classification---Principles---Duty of Court---Scope. The following are principles with regard to equal protection of law and reasonableness of classification: 1377 (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes; (iv) that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances; (v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25 of the Constitution; (vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) that in order to make a` classification reasonable, if should be based: (a) on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; 1378 (b) that the differentia must have rational nexus to the object sought to be achieved by such classification. (viii) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. (ix) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact; (x) that it must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds; (xi) that the Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest; (xii) that in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; (xiii) that while good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, 1379 the 'presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (xiv) that a classification need not be scientifically perfect or logically complete; (xv) that the validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration. Constitution of Islamic Republic of Pakistan by Syed Shabbar Raza Rizvi and V.N. Shukla's Constitution of India 7th Edn. ref. (l) Constitution of Pakistan (1973)--- ----Part II, Chap. I [Atts.8 to 28]---Reasonable restriction---Concept of reasonable restriction as emerges on interpretation of constitutional provisions, including Art.25 of the Constitution, is not alien to Islamic teachings---Concept of human dignity received legal recognition for the first time when Ayat 70 of Sura 17 of Holy Qur'an was revealed. Ayat 32 Sura; Ayaat 178, 179 & 194 Sura 2; Ayat 45 Sura 5 and Ayat 70 Sura 17 ref. (m) Islamic Jurisprudence--- ----Fundamental rights---Right of freedom of expression---Every human being enjoys the right of freedom of expression but Islamic Injunctions Put a limit on the exercise of said fundamental right because an individual is not authorised to violate similar rights of others on the pretext of 1380 realization of his own basic rights. (n) Islamic Jurisprudence--- ----Fundamental rights---Scope---Even fundamental rights are not absolute in the eyes of law. Ayat 256 Sura 2; Ayat 23 Sura 4; Ayat 60 Sura 9; Ayat 41 Sura 8 and Ayat 43 Sura 2 ref. (o) Pakistan Prisons Rules, 1978--- ----Preamble ---Prisoners Act, (III of 1900), Preamble---Constitution of Pakistan (1973), Part II, Ch.1 [Arts.8 to 28] & Art.203-D---Vires of prison legislative instruments on the touchstone of Injunctions of Islam---Fundamental rights guaranteed by the Constitution are firmly based upon various Injunctions of Islam---Existing provisions of prison legislative instruments are presumed to be valid, legal and not violative of constitutional guarantees unless proved to the contrary---Presumption of constitutionality is attached to every legislative instrument and courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution. Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903; East Pakistan and others v. Sirajul Haq Patwari and others PLD 1966 SC 854; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh v.. Firm Narain Das AIR 1944 Lah. 302 ref. (p) Islamic Jurisprudence--- 1381 ----Reasonable classification---Scope---Basic principle of Islamic Jurisprudence is that reasonable classification is permissible but discrimination has to be eschewed because discrimination violates the well-known tradition of Holy Prophet proclaimed in Khutba Hujjat-ul-Wida. (q) Islamic Jurisprudence--- ----Prison discipline---Primary concern of Islamic Jurisprudence is the administration of even-handed justice---Federal Shariat Court observed that prevailing prison system, does not envision rectification, reform, reformation, or rehabilitation of the convict and advised the managers of prison system to adopt objective attitude and bring a change in the prison discipline as well as in the outlook. Ayat 53 Sura 39; Sunan Abi Daud and Sunan Ibn-e-Maja; Kitabul-Kuna-Aldaulaki; Sunan Abi Daud tradition Nos.5215-5216 and Sunan Abi Daud Tradition No.4842 ref. (r) Pakistan Prisons Rules, 1978--- ----R. 546---Constitution of Pakistan (1973), Art.203-D---Facilities to be provided to new entrants in the prison including provisions for reading, writing and meeting friends and relatives, receiving things at the time of interview by the prisoner and censorship of letters delivered to or sent by prisoner---Vires of R.546, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam--Administration, for the purpose of security can take the steps like checking and censorship and such course of action is permissible in Islam. (s) Pakistan Prisons Rules, 1978--- ----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Vires of R.690, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---List of prohibited articles as per Item No.5 of the Rule mentions "all books, papers and printed or written matters and materials 1382 and appliances for printing or writing of whatever description "---Words "all books, papers and printed or written matters" in Rule 690 of Pakistan Prisons Rules, 1978 are repugnant to Injunctions of Islam---Principles. Ayat 269 Sura 2; Ayaat 1-5 Sura 96, Ayat 1 Sura 68; Ayaat 73, 76 and 171; 242 Sura 2; Ayat 43 Sura 16; Tirmazi .in . Book of Knowledge (Tradition No.2687), Tradition No.1919 and Ayat 220 Sura 2 ref. (t) Islamic Jurisprudence--- ----Shariah, objectives of---Objectives of Shariah, known as Maqasid-e-Sharia are in fact guarantees for the betterment of humanity and provides five basic principles/values being (i) preservation of Deen (Religion); (ii) preservation of intellect; (iii) preservation of life; (iv) preservation of property and (v) preservation of progeny---Illustration. Ayat 220 Sura 2 ref. (u) Pakistan Prisons Rules, 1978--- ----Rr. 75 & 690---Constitution of Pakistan (1973), Art.203-D---Amendment made in R.690 in Balochistan and N.-W.F.P. Provinces Permitting the prisoners to have a reasonable quantity of reading and writing material has not been incorporated in R.75, Pakistan Prisons Rules, 1978 which omission is not only violative of Islamic Injunctions but also contrary to the principle of uniformity of laws applicable to same categories of citizens all over the country---Principles. (v) Pakistan Prisons Rules, 1978--- ----Rr. 307 & 314---Constitution of Pakistan (1973), Art.203-D---Confinement of women prisoners and 1383 innocent children---Vires of Rr.307 & 314, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that there is nothing at all either in R.307 or. R.314 of the Prisons Rules, 1978 which violates Injunctions contained in Ayat 151 Sara 6 of Holy Qur'an on the contrary R.314 specifically mandates that male officer can enter only if he has a legitimate duty to attend to, and is accompanied by the woman warder all the time he remains inside such ward or enclosure---Such is not conceivably covered by the mischief of the term Fawahish i.e. lewdness---Government, at the most, may consider, defining the scope of the word "necessary" occurring in R.314, Pakistan Prisons Rules, 1978 and may restrict the noctural visits only to situation when a prisoner needs emergent medical care, or there are riotous conditions in the barrack, a clamity like fire or an earthquake has damaged the enclosure---Every such visit of senior officers may by law be required to be recorded and its intimation sent to the Inspector-General Prisons next morning telephonically as well as in writing. Ayat 151 Sura 6 and PLD 1995 Central Statutes 231 ref. (w) Pakistan Prisons Rules, 1978--- ----Rr. 935 & 939---Constitution of Pakistan (1973), Art.203-D---Superintendent of Jail---Vires of Rr.935 & 939, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Petitioner, in the present case, having neither advanced any precise objection as to the text or terminology of the said Rules nor was any Injunction of Islam shown to have been violated by the inclusion of said two provisions in the Pakistan Prisons Rules, 1978---Federal Shariat Court' dismissed the petition. (x) Pakistan Prisons Rules (1978)--- ----Rr. 1180 & 1181---Constitution of Pakistan (1973), Art.203-D---Lady Assistant Superintendent and women warders---Vires of Rr.1180 & 1181, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Contentions of the petitioners were that no woman could be placed in custody of a male not within prohibited degree (non-Mahram) and that any situation, arranger, event or system which might possibly lead to immorality or adultery was prohibited by Islam---Federal Shariat Court observed that Lady Assistant Superintendent had been made physical incharge of a women's prison and Rules also affirmed that women warder should be incharge of the women enclosure in any prison---Women enclosures were already separate from the male enclosures and 1384 therefore, there did not exist any situation, arrangement, event which was directed towards or might possibly lead to immorality or adultery---Only because a provision could be used in an oppressive or capricious manner or was capable of being used did not mean that the provision itself became invalid---Sole criteria were the test of repugnancy to Holy Qur'an or Sunnah of the Holy Prophet. Pakistan and others v. Public At Large and others PLD 1987 SC 304 ref. (y) Pakistan Prisons Rules, 1978--- ----Rr. 1002 & 1004---Constitution of Pakistan (1973), Art.203-D---Deputy Superintendent, general duties---Vires of Rr.1002 & 1004 on the touchstone of Injunctions of Islam---Grounds mentioned in the petition were in fact apprehensions e.g.; that the control of male staff over female prisoners could lead to moral excesses---Federal Shariat Court observed that in fact no male officer was in physical control of female prisoners---Latter were under the supervision of female warders and Lady Assistant Superintendent of Jail---No female prisoner was placed in custody of non-Maharani male and the objection, that anything leading towards immorality was prohibited in Islam was a misplaced feeling and it would certainly not advance the cause of justice if an order was made to read mischievous meaning in any provision of law unless of course, it was shown by reasonable interpretation that provision under review was either expressly hit by an Injunction of Islam or by implication was repugnant to the letter or spirit of Injunctions of Islam---Injunction of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate the obvious mischief complained of---Rules, 1002 & 1004 impugned in the petition were therefore valid as no reason was advanced to show that said provisions related to the performance of normal duties. (z) Constitution of Pakistan (1973)--- ----Art. 203-D---Repugnancy to Injunctions of Islam---Requirements for impugning a provision of law--Federal Shariat Court observed that it would certainly not advance the cause of justice if an order was made to read mischievous meaning in any provision of law unless of course, it was shown by reasonable interpretation that provision under review was either expressly hit by an Injunction of Islam or by implication was repugnant to the letter or spirit of Injunctions of Islam---Injunctions of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate 1385 the obvious mischief complained of. (aa) Pakistan Prisons Rules, 1978--- ----R. 1078---Constitution of Pakistan (1973), Art.203-D---Prohibition against employment of persons dismissed or punished criminally with an authority to Government as well as the Inspector-General of Prisons to employ dismissed government officers and previous convicts--Vires of R.1078, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam--Contention of the petitioner was that R.1078 was un-Islamic as the same prohibited a person from earning legitimate livelihood (Rizq-e-Halal)---No Injunctions of Islam had been referred by petitioner to establish that the impugned Rule was in any manner opposed to Islamic Injunctions--Federal Shariat Court observed that R.1078 did give arbitrary authority to Government as well as the Inspector-General of Prisons to employ dismissed government officers and previous convicts--Such provision was discriminatory and was not covered by the principle of classification on reasonable grounds---Elements of special sanction of Government and that of Inspector-General of Prisons were violative of Injunctions of Islam on account of arbitrariness and other reasons---Rule 1078(i) of the Pakistan Prisons Rules, 1978 was declared to be repugnant to Injunctions of Islam by the Federal Shariat Court---Impugned provision to the extent of special sanction shall ceases to have effect as from 1-12-2009. Verse 70 of Chap. 25 ref. (bb) Criminal Procedure Code (V of 1898)--- ----S. 382-B---Constitution of Pakistan (1973), Art.203-D---Period of detention to be considered while awarding sentence of imprisonment--Vires of S.382-B, Cr.P.C. on the touchstone of Injunctions of Islam---Objection of petitioner was that the period of detention in custody for the offence should be deducted from the quantum of sentence of imprisonment awarded at the end of trial for the same offence---Federal Shariat Court, in the light of relevant Verses of Holy Qur'an and principles of Injunctions of Islam relating to the realm of administration of justice observed that it appears to be just and reasonable that the period spent by a prisoner in detention/custody for an offence before and during the trial ought to be deducted from the sentence awarded by the trial court for the reason that the prisoner had already suffered incarceration on account of 1386 the crime report which became the basis of his conviction and the consequent sentence of imprisonment; omission to deduct such a period of detention in the same cause would fall in the category of ZULM which the Holy Qur'an does not countenance under any situation: (Refer Ayat 85 Sura 3); existing provision i.e. section 382-B of the Code of Criminal Procedure, 1898 in so far as it speaks of taking into consideration the period spent in detention for the same offence, before pronouncement of judgment was derogatory to the Injunctions of Islam; necessary. correction may be made by 1-12-2009 whereafter the order of Federal Shariat Court will take effect and the provision of section 382-B of the Code of Criminal Procedure would read as "Where a court decides to pass a sentence of imprisonment of an accused for an offence, the period, if any, during which such accused was detained in custody ,for such offence, whether before or after submission of report under section 173 of the Code of Criminal Procedure or initiation of a trial in a case instituted upon a complaint, shall be deducted from the quantum of sentence of imprisonment awarded by the trial court or it may be adjusted against imposition of fine if the court so directs"---Federal Shariat Court further observed that Court took notice of this provision also because this point invariably crops up whenever the question of benefit of section 382-B of the Code of Criminal Procedure comes under consideration at the time of award of sentence to the accused both at the conclusion of the trial and at the time of hearing the appeal---Federal Shairat Court hoped that this declaration will put an end to the controversy. Ayaat 48, 123, 286 Sura 2; Ayat 135; Sura 4; Ayat 8; Sura 5; Ayat 15; Sura 10; Ayat 90 Sura 16; Ayat 41 Sura 42 and Ayat 85 Sura 3 ref. (cc) Pakistan Prisons Rules, 1978--- ----Chap. 20 [Rr.468 to 507] & R.176---Constitution of Pakistan (1973), Art.203-D---Dietry requirements of prison population---Vires of Chap.20, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Amount for diet having not been mentioned in the Rules, Federal Shariat Court declined to declare the same ultra vires the Injunctions of Islam, however, Court observed that adequate provision has to be made by all the Provincial Governments to rationalize the quantum of dietry sanction for the prisoners because Islamic Injunctions are very clear on this point. Ayat 8 Sura 76; Ayat 56 Sura 24; Ayat 8 Sura 76; Bukhari, in Book LXXXIX, The Book of A'hkaam, Chap.1; Ayat 34 Sura 4; Ansar Burney v. Federation of Pakistan and others PLD 1983 FSC 73 and 1387 Al-Mausooatal Qazaya pp.277-278 ref. (dd) Pakistan Prisons Rules, 1978--- ----R. 176(iii)---Constitution of Pakistan (1973), Art.203-D---Food of prisoners on transfer---Vires of R.176(iii) of Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that Rule 176(iii) of the Pakistan Prisons Rules, 1978 is violative of Islamic Injunctions for said Rule provides that a prisoner on transfer will get diet money of Rs.3 per meal, which money will not buy even one thin loaf of bread---Unless otherwise deleted or suitably amended, said provision will cease to be part of the Rules after 1-12-2009, the minimum diet money per meal should be Rs.50 which amount will be revisable every three years---Principles. (ee) Pakistan Prisons Rules, 1978--- ----R. 545-A---Constitution of Pakistan (1973), Arts.203-DD, 25(3), 35 & 38---Family life of prisoners--Special meetings---Conjugal Oriented Parole Scheme---Federal Shariat Court appreciated the introduction of Rule 545-A in the Pakistan Prisons Rules, 1978 and remarked that "indeed it was a welcome start"---Court also observed that the Home Department can formulate a policy wherein the married prisoners, except lifers and condemned prisoners, are enabled and encouraged, subject to all necessary and reasonable conditions, to avail a week's parole every four month in the larger interest of maintenance of family life---Spouse and children of the accused have a legitimate claim upon the latter---Family union of the condemned prisoners and lifers can be arranged in the family quarters within the prison walls; it will not only have a salutary effect upon the prison population but these steps will be ;positive measures towards reduction of some problems arising on account of over population in the prisons---Shariat Court hoped that all the Provincial Governments will consider the matter particularly relating to family life of prisoners, and make amends by extending on the one hand the scope of amended Rule 544, but also take positive steps to introduce ConjugalOriented Parole Scheme in appropriate cases and also initiate family reunion on auspicious occasions within the prison precincts in the larger interest of preservation of family life---Court further hoped that necessary action will be taken by the end of 2010 and a report to that effect will be sent by the Secretaries Home of all the Provincial Governments, Secretary Interior, Government of Pakistan will also send his own report containing an objective assessment as regards the efforts made and steps taken in this regard---Said reports must reach the Registrar of Federal Shariat Court by 31-1-2011 whereafter this aspect of the case will be examined in February, 2011. 1388 (ff) Pakistan Prisons Rules, 1978--- ----Chap. 14 [Rr.329 to 364]---Prisons Act (IX of 1894), S.30---Criminal Procedure Code (V of 1898), S.376---Constitution of Pakistan (1973), Art.203-D---Condemned prisoners---Vires of Chap.14 (Rr.329 to 364), Pakistan Prisons Rules, 1978 and Prisons Act, 1894 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that prisoner under sentence of death shall be deemed to be a condemned prisoner only when the death sentence awarded by the trial court has been confirmed and it becomes executable i.e. when the death sentence has been confirmed under section 376 of the Code of Criminal Procedure, 1898 and consequently portion of the legal provisions which authorize the Prison Authorities to treat a prisoner under sentence of death as a condemned prisoner before confirmation of his sentence i.e. it becomes executable, is declared to be violative of Injunctions of Islam. Ayat 60 Sura 22; Ayat 126 Sura 16; Ayat 70 Sura 17; Ayaat 58-59 of Chap.24 Sura an-Nur; Ayat 90 Sura 16; Ayat 53 Sura 39; Babe-Mazalam, Vol. 9 of Sahih Bukahri; Chap.80 Sahih Bukhari; Ayat 185 Sura 2; Ayat 4 Sura 65; Ayaat 5, 6 Sura 94; 94/5-6 (Al-Inshran); Ayaat 233, 286 Sura 2; Ayat 84 Sura 4; Ayat 42 Sura 7; Ayat 62 Sura 23; Ayat 7 Sura 65 and Ayat 286 Sura 2 ref. (gg) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Prisons and prisoners---Ground realities, challenging problems and role of prisons---Federal Shariat Court noted ground realities, challenging problems and role of prisons and offered proposals for solving said problems---Court hoped that necessary steps will be taken by all the Provincial Governments with the active collaboration of the Secretary Interior---Secretary Interior and the Provincial Secretaries will send a detailed report on the various issues identified and discussed should also reach the Registrar, Federal Shariat Court by 31-1-2010 whereafter the court will examine the steps taken by the Federal and Provincial Governments in the matter---Case will be taken up in February, 2011 for consideration and necessary action. Majeeda Bibi v. Superintendent Jail PLJ 1995 Kar. 1; Ayat 6 Sura 13 Ayat 115 Sura 23 ref. 1389 (hh) Pakistan Prisons Rules, 1978--- ----R. 304---Constitution of Pakistan (1973), Art.203-D---Juvenile prisoner---When a juvenile prisoner is released there should be some body to guide him and enable him to enter life as a productive unit of society---Federal Shariat Court observed that Government can consider amending R.304, Pakistan Prisons Rules, 1978 whereby Probation Officers, particularly in cases of orphan juvenile offenders, are deputed to provide necessary assistance---Principles. Ayat 233 Sura 2; Ayat 9 Sura 4; Ayat 141 Sura 6; Ayat 40 Sura 14; Ayat 31 Sura 17; Ayat 3 Sura 22; Ayat 74 Sura 25; Ayaat 7-12 Sura 28; Ayaat 13-19 Sura 28 and Ayaat 6-7 Sura 65 ref. ( i i ) Islamic Jurisprudence--- ----Prison discipline--- Human affairs--- Guiding principles. (jj) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Prison discipline---Rights of accused persons/prisoners guaranteed by Constitution, Law, Precedents, Dean (Religion) and remedies elaborated--- "Fair friar-Connotation. Ayat 279 Sura 2; Ayat 57 Sura 3; Ayat 22 Sura 14; Farrukh Salim v. The State PLD 1997 Lah. 385; The State through A.G. N.W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950; Allah Rakhi v. The S.H.O. and others NLR 2000 Cr.92; 2002 YLR 3832; PLD 2003 Lah. 217; Corpus Juris Secundum Vol. 88 CJS Edn. 1955, p.88; Garret v. State 193 So.452, 458, 187 Miss.441; Column One Vol. 16 Words and Phrases, 1959 Edn.; Ayat 109 Sura 2, Ayat 134 Sura 3; Ayat 119 Sura 23; Bukhari Muslim and Mishkat; Majeeda Bibi's case PLJ 1995 Kar. 1 and Ayat 110 Sura 3 ref. 1390 (kk) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D---Jail riots---Factors that influence the inmates of penal complexes identified by Federal Shariat Court. ( l l ) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (IX of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Prison discipline---Jurisdictional aspect: Guiding principles from the text o f Holy Qur'an; interpretative feature and legal literature on the subject dilated upon by Federal Shariat Court. Sura 103 Al-Asr; Ayaat 1-3 Sura 103; R.S.N. Co. Ltd. v. Commissioner Chitagong Port PLD 1961 Dacca 412; Broom's Legal Maxims: 10th Edn. Chap. III, p.44; House Building Finance Corporation v. Rana Muhammad Sharif and 4 others PLD 2000 SC 760 and Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh ref. ( m m ) Pakistan Prisons Rules, 1978--- ----Rr. 583, 584, 588, 589, 590 & 591---Prisons Act (IX of 1894), S.46---Constitution of Pakistan (1973), Art.203-D---Prison offences and penalties---Vires of Rr.583, 584, 588, 589, 590 & 591 of the Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Rules, 583, 584, 588, 589, 590 & 591 of Pakistan Prisons Rules, 1978 permit the Superintendent to impose penalty by way of (a) cellular confinement, (b) imposition of link bars (c) imposition of handcuffs and (d) imposition of link fetters are part of existing prison discipline---If a prisoner is handcuffed o r is in fetters within a cell as a consequence of the award of punishment by the Superintendent, for violating a prison offence, then he is precluded from performing ablution, offering compulsory prayers five times a day; recitation of Holy Qur'an; reading and writing; and is also handicapped in answering the call of nature apart from facing undue difficulty in performing Tahaarat---Such practice is violative of injunctions of Islam---Provisions in the Rules, being contrary to the letter and spirit of the Injunctions 1391 of Islam, have a debasing, demeaning and a negative effect on the prisoners and violates human dignity---No right of appeal is granted against such an inhuman penalty---Federal Shariat Court declared sub-rules (6), (7), (8), (9) of Rule 583; sub-rules (3), (4), (5), (6) and (7) of Rule 584, Rules 588; 589, 590 and Rule 591 in entirety contained in Chap. 23 of Prisons Rules, 1978 as violative of Ayaat 43, 110 of Sura 2; Ayat 43 of Sura 4 and Ayat 6 of Sura 5 as well as Ayat I Sura 58 (AlMujadalah) of the Holy Qur'an---Present declaration will take effect from 1-12-2009 and Federal Shariat Court hoped that necessary provisions will be incorporated and a right of appeal before an independent tribunal will also be provided to the accused prisoner against major offences--Inspector General of Prisons of each Province shall intimate in writing, through the Registrar of Federal Shariat Court, by 31-12-2009, about the grant of right of appeal---In case right of appeal is not granted the case will be reviewed by Federal Shariat Court in February 2010 to examine the desirability of declaring the entire Chap. 23 of the Pakistan Prisons Rules, 1978 as violative of Injunctions of Islam and the judicial precedents---Provincial Governments should therefore make provision for incorporating a right of appeal in Chapter 23 of the Pakistan Prisons Rules, 1978 as well in cases involving major penalties or where more than one penalty is sought to be imposed--Forum of appeal should be the Sessions Judge of the District in whose territorial jurisdiction the penalty is imposed---Rule should also provide that the punishment will not be executed till the, disposal of appeal---By providing a legal remedy by way of appeal, the authority awarding the penalty will be under an obligation to frame a charge, record evidence and write a well reasoned order after recording statement of the answering respondent. Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 of Sura 49; PLD 1984 FSC 34; Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and Pakistan v. Public-At-Large PLD 1987 SC 304 ref. (nn) Pakistan Prisons Rules, 1978--- ----R. 84---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue cheque--Vires of R.84, Pakistan Prisons Rules, 1978 on the touchstone of Injunctions of Islam---Federal Shariat Court observed that provision of R.84 of Pakistan Prisons Rules, 1978 is violative of the various Injunctions of Islam as enumerated in Ayaat 60, 168, 172 and 187 of Chapter 2; Ayaat 4 and 88 of Sura 5; Ayaat 141-142 of Sura 6; Ayat 160 Sura7; Ayat 14 Sura 16; Ayat 81 Sura 20; Ayat 28 Sura 20 and Ayat 15 Sura 34 of Holy Qur'an which makes it abundantly clear that every person is entitled to use his income in any lawful pursuit /occupation/trade that he likes---Every believer is legally responsible to defray the expenses of his wife and children---No law or a provision of law can abridge or adversely affect the legal responsibility of a prisoner to maintain his family---Cheque 1392 book of a prisoner may be retained in safe custody and in order to ensure the genuineness of the cheque issued by a prisoner, the Superintendent or Deputy Superintendent of prison can be authorized to counter sign the cheque issued by the prisoner but the condition of seeking permission from District Co-ordination. Officer for an amount exceeding Rs.5,000, as visualized by clause (c) of Rule 84, is an unwarranted clog on the exercise of a right which, according to the Holy Qur'an is an innate ingredient of the legal. capacity of an adult---Cheques can be issued as and when the prisoner wants provided the amount of money lying in the Bank is not subject-matter of any offence like cheating, theft, burglary or some other illicit means---Accused or a convict involved in other offences would be entitled to the concession of issuing cheques or giving advice to the financial Institution/Insurance Companies---Rule, instead of providing facilities creates difficulties for the internees which hurdle in itself is violative also of the tradition of the Holy Prophet (p.b.u.h.) in which the Muslims have been directed to create conditions which make things easy for the people rather than difficult---Said Rule is violative of the Principle of Usar and Yusar as enunciated in Ayat 185 Sura 2 and Ayaat S and 6 of Sura 94 of the Holy Qur'an and is an un-necessary obstacle in earning Rizk-e-Halal which is the fundamental right of every human being---Holy Qur'an exhorts believers to earn livelihood through legitimate means---Rule 84 shall cease to have effect from 112-2009 during which period necessary amendments or deletion may be made in Chap. 4 of the Pakistan Prisons Rules, 1978. (oo) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Prison discipline---Deficiencies of Prisons Manual---Federal Shariat Court identified certain aberrations in the prevalent prison discipline and observed that said discipline lacks some basic requirements and drastic amendments are needed to make the existing Prisons Rules/Jail Manual a real human friendly document and efforts should be made by policy makers to rationalize the penal system with particular reference to prisons, prisoners and prison discipline---Principles. (pp) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Uncompensated labour---Vires of practice of such labour on the touchstone of Injunctions of Islam--Federal Shariat Court observed that element of uncompensated labour is an extremely regrettable feature of prison history and such unfair trend and highhandedness is persisting unabated 1393 notwithstanding the fact that said practice violates Injunctions of Islam---Prison officials must realize that compensation for labour is as vital as is the monthly salary of any government servant--Steps should therefore, be taken to initiate judicious system in said neglected field; concern must substitute apathy---Federal Shariat Court further observed that it will not be enough to abolish the system of uncompensated labour but steps will have to be taken to devise a methodology whereby uninterrupted work is provided to the prisoners and payments for the work done is also made regularly---Such an exercise would not be without a policy decision at Government level and its incorporation in the Prisons Rules---Federal Shariat Court also indicated a three pronged strategy in this behalf. Ayat 188 Sura 2; Ayaat 29, 161 Sura 4; Ayat 34; Sura 9; Ayat 70; Sura 39; Ayat 39; Sura 53; Ayat 90, Sura 16 and Section No.826 Chap. 533 Book of Ijara, Sahih Bukhari ref. (qq) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1972, Art.203-D---Vires of prison discipline on the touchstone of Injunctions of Islam---Issues agreed upon generally by counsel of all the parties recorded. (rr) Pakistan Prisons Rules, 1978--- ----Preamble---Prisons Act (XI of 1894), Preamble---Constitution of Pakistan (1973), Art.203-D--Prison discipline---Presumption about knowledge of law---Federal Shariat Court observed that before a penalty is imposed the transgressor should have been forewarned about the consequence of his lapses of commission and omission---Human being has a right to know before he is obliged to do something and to secure a balanced system the citizen should be enable to know the law or rules---Such certainly involves the duty of the State to educate the masses---Federal Shariat Court further observed that necessary information about the rights and responsibilities of prisoners should be readily available in the prisons---Principles. Ayat 12 Sura 2; Ayat 2 Sura 62; Ayat 15 Sura 17 (Bani Israel); Ayat 43 Sura 16 and Ayat 186 Sura 2 1394 ref. (ss) Pakistan Prisons Rules, 1978--- ---Rr. 329 & 330---Prisons Act (XI of 1894), S.30---Constitution of Pakistan (1973), Art.203-D--Inhuman living conditions of condemned prisoners---Repugnancy to Injunctions of Islam---Federal Shariat Court declared the portions of Rr.329 and 330 of Pakistan Prisons Rules, 1978 and S.30 of the Prisons Act, 1894 which authorise the Prison Authorities to treat a convict as condemned prisoner before the sentence of death becomes executable, to be repugnant to the Injunctions of Islam---First December, 2009 is the date on which said declaration will take effect---Federal Shariat Court hoped that during said period Ch.14 of the Pakistan Prisons Rules, 1978 and S.30 of the Prisons Act, 1894 will be recast---Prisoner should be deemed to be a condemned prisoner only after the death sentence awarded to him by Trial Court has been confirmed---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court Office was directed to send copies of the judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. (tt) Criminal Procedure Code (V of 1898)--- ---S. 382-B---Constitution of Pakistan (1973), Art.203-D---Prisoner in custody---Period of imprisonment to be considered while awarding sentence of imprisonment---Repugnancy to Injunctions of Islam---Federal Shariat Court observed that period spent by a prisoner in custody during and before the initiation of the trial shall be automatically deducted from the terms of sentence awarded to him as a result of his conviction---Such concession will be independent of any remission that a prisoner might as well earn during the period of his incarceration---Said benefit shall be available to such persons who will be serving their sentence on 1-12-2009 if they were not awarded the benefit already granted by the Trial Court or Appellate Court---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions 1395 contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam--Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. (uu) Pakistan Prisons Rules, 1978--- ----Rr. 583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591---Constitution of Pakistan (1973), Art.203-D---Prison offences and prescribed penalties---Repugnancy to Injunctions of Islam---Federal Shariat Court declared Rr.583(6)(7)(8)(9), 584(3)(4)(5)(6)(7), 588, 589, 590 & 591 in entirety, as violative of Injunctions of Islam---Such part of declaration will take effect from 1-12-2009 unless necessary amendments, as indicated, are made by respective Governments before the target date--Inspectors-General of Prisons have been directed to submit report in the Federal Shariat Court by 31-12-2009---In case the right of appeal, on major offences, is not provided the matter will be reviewed in February, 2010 by the Court to examine the feasibility of declaring the entire Chapter 23 of the Pakistan Prisons Rules, 1978 as repugnant to Injunctions of Islam and judicial precedents--Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. Prisons Code (Jail Manual) by Dr. Abdul Majeed Aulakh; Ayat 11 Sura 49; PLD 1984 FSC 34; Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 and Pakistan v. Public-At-Large PLD 1987 SC 304 ref. (vv) Pakistan Prisons Rules, 1978--- 1396 ----R. 147---Prisoners Act (III of 1900), S.29---Constitution of Pakistan (1973), Art.203-D--Unfettered powers of the Government and the Inspector-General of Police to transfer any prisoner from one prison to another within the Provincial borders---Repugnancy to Injunctions of Islam---Federal Shariat Court declared R.147, Pakistan Prisons Rules, 1978 and S.28, Prisoners Act, 1900 violative of the Injunctions of Islam to the extent stated in the judgment---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relation to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure, 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. (ww) Pakistan Prisons Rules, 1978--- ----R. 1078---Constitution of Pakistan (1973), Art.203-D---Employment of dismissed government servants by way of special sanction of the Government---Repugnancy to Injunctions of Islam--Federal Shariat Court declared R.1078 of Pakistan Prisons Rules, 1978 to the extent of such employment to be violative of Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. (xx) Pakistan Prisons Rules, 1978--- ----R. 84(a)(c)(d)---Constitution of Pakistan (1973), Art.203-D---Restrictions on prisoners to issue cheques-Repugnancy to Injunctions Islam-Federal Shariat Court declared R.84(a)(c) & (d) of the Pakistan Prisons Rules, 1978 to the extent mentioned in the judgment, to be against Injunctions 1397 of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant; shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prisons Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues identified in the judgment. (yy) Pakistan Prisons Rules, 1978--- ----R. 690---Constitution of Pakistan (1973), Art.203-D---List of prohibited articles---Repugnancy to Injunctions of Islam---Federal Shariat Court declared R.690 of the Pakistan Prisons Rules, 1978 to be repugnant to Injunctions of Islam---Decision of Federal Shariat Court affecting all the legal provisions, which have been declared repugnant, shall take effect from 1-12-2009 during which period the President of Pakistan in relations to the provisions contained in the Prisoners Act, 1900 and the Code of Criminal Procedure 1898 and the Governors of the four Provinces in relation to the impugned legal provisions of the Pakistan Prison Rules, 1978 shall take the necessary steps to bring such provisions in conformity with the Injunctions of Islam---Court office was directed to send copies of the present judgment to the Federal Government, Chief Secretaries and Secretaries of Home Department of the four Provincial Governments for report and necessary compliance on issues - identified in the judgment. (zz) Federal Shariat Court (Procedure) Rules, 1981--- ----Chap. 2, R.7 & Chap. 3---Federal Shariat Court directed that Bench Registry of the Court at Islamabad and all the four Provincial Headquarters shall strictly observe the directions contained in Rule 7, Chap. 2 as well as Chap. 3 .of the Federal Shariat Court (Procedure) Rules, 1981 at the time Shariat Petitions/Shariat Miscellaneous Applications/Appeals and Revisions are filed. Dr. Muhammad Aslam Khakhi, Capt. (Retd) Mukhtar Ahmed Sheikh and Master Ejaz Hussain, Petitioners (in person). 1398 Hafiz S.A. Rehman, Standing Counsel, Iftikhar Hussain Chaudhry, Standing Counsel, Dr. Abdul Malik Irfani, Muhammad Aslam Uns, Sardar Abdul Majeed, Standing Counsel, Mrs. Naheeda Mehboob Ellahi, Standing Counsel, Rizwan Ahmed Siddiqui, Deputy Attorney-General with Asif Mangi, Zahoor Hussain Soomro, Section Officer Human Rights Division, Zahid Hussain Soomro, Section Officer Human Rights Division Ministry of Law, Amanat Parvaiz Bhatti, Deputy Secretary, Home Department, Government of Punjab, Falaq Sher, S.O. Home Department, Government of Punjab, Haseeb Shah Jehan, S.O. Home Department Government of Punjab and Ch. Liaqat, Deputy Secretary (Judicial) Home Department, Government of Punjab for Federal Government. Muhammad Aslam Uns, on behalf of A.-G. Punjab, Rana Fazal-ur-Rehman, Mrs. Rukhsana Malik, Assistant Advocate-General, Shafqat Munir Malik, Additional Advocate-General, Haseeb Shah Jehan, Section Officer Home Department, Government of Punjab, Mehboob Ahmed Khan, Advocate for Human Rights Commission, Ch. Liaqat, D.S. (Judicial) Home Department and Ch. Saleem Murtaza Mughal, Assistant Advocate-General for Province of Punjab. Muhammad Sarwar Khan, Additional Advocate-General on behalf of A.-G. Sindh, Munir Ahmed Khan, Additional A.-G, Miss. Qamar-un-Nisa, Abdul Waheed Siddiqui, Muhammad Shoaib Abbasi, Arshad H. Lodhi, Assistant Advocate-General, Fareed-ul-Hassan, Assistant Advocate-General, Munir Ahmed Khan, Additional Advocate-General, Qasim Mir Jat, Assistant Advocate-General for Province of Sindh. Mr. Aziz-ur-Rehman, Advocate, Haji Tasleem Hussain, Fazal-ur-Rehman Rana, with Noor-ul-Haq S.O. (Litigation), Sindh GAD Department, Muhammad Sharif Janjua, Pir Liaqat Ali Shah, AdvocateGeneral, Sardar Shaukat Hayat, Assistant Advocate-General, Qari Abdul Rashid, Standing Counsel, Muhammad Saeed Shangla, Additional Advocate-General, Section Officer (Litigation) S&GAD Department N.-W.F.P., Muhammad Saeed, Acting Advocate-General, N.-W.F.P. Sohail Akhtar, Law Officer for Government of N.-W.F.P. and Noor-ul-Haq, Section Officer, (Litigation) Sand GAD Department, N.-W.F.P. for the N.-W.F.P. Ch. Ejaz Yousaf, Additional Advocate-General, Malik Sikandar Khan, Advocate-General, Qari Abdul Rashid, Mehmood Raza Khan, Additional Advocate-General, Azam Khan Khattak, Additional Advocate-General, Salahuddin Mengal, Advocate-General, Muhammad Shoaib Abbasi, and 1399 Amanullah Jaween, Assistant Advocate-General for the Balochistan. Dr. Allama Muhammad Hussain Akbar and Dr. Muhammad Yousaf Farooqi, Juris consults. Officers of Prisons (Punjab, Sindh, N.-W.F.P. and Balochistan):--- (1) Tipu Sultan, Assistant Superintendent Adyala Jail, Rawalpindi. (2) Raja Abdul Qayyum, Law Officer I.G. Jail Khana Jat, Punjab. (3) Shahid Saleem Baig, Superintendent Jail, Rawalpindi. (4) Arshad, Assistant Superintendent, Adyala Jail, Rawalpindi. (5) Sarmad Tehmoor, Assistant Superintendent Central Jail, Rawalpindi. (6) Muhammad Yamin Khan, Inspector General Prisons Sindh. (7) Ajmal Khan, Deputy Superintendent, Central Jail, Peshawar. (8) Masood-ur-Rehman, Deputy Superintendent Jail, Peshawar. 1400 (9) M. Asghar Munir, Deputy Superintendent, Adyala Jail, Rawalpindi. Dates of hearing: 12th November, 1992, 24th May, 17th October, 1993, 3rd April, 1994, 26th November, 1995, 29th June, 1998, 31st May, 1999, 29th March, 5th June, 24th October, 2000, .10th November, 2003, 27th, 29th April, 10th May, 14th April, 31st May, 3rd June,. 2004, 23rd January, 3rd April, 4th June, 11th September, 12th September, 2007, 13th February, 12th March, 27th March, 9th April, 30th April, 21st May, 3rd September, 22nd October, 11th November, 2008, 14th, 29th January, and 26th August, 2009. JUDGMENT SYED AFZAL HAIDER, J.--- And they make provision Out of love (of Allah) For the Indigent, The Orphan and The Captive. 1401 Al-Qur'an: Ayat 8 Sura 76 AL-INSAN INTRODUCTORY This consolidated judgment will dispose of four Shariat Petitions and Five Shariat Miscellaneous Applications which have been clubbed together because each petition seeks to challenge one or the other legal provision relating to Prisons, Prisoners and Prison Discipline. The impugned provisions as well as the titles of four Shariat Petitions and five Shariat Miscellaneous Applications are detailed below in sections A and B respectively for reference sake. SECTION A: SHARIAT PETITIONS (i) Shariat Petition No.61/I of 1992 (filed on 19-10-992) Dr. M. Aslam Khaki v. Federation of Pakistan and Others (ii) Shariat Petition No.62/I of (filed on 1-11-1992) Dr. M. Aslam Khaki v. Federation of Pakistan and others (iii) Shariat Petition No.12/I of SHARIAT PETITIONS PROVISIONS CHALLANGED Rules 307, 314 of Chapter 13 entitled: Women Prisoners and Children. Rules 935, 939 of Chapter 39 entitled: Superintendent. Rule 1002 of Chapter 41 entitled: Deputy Superintendent. Rules 1180, 1181 of Chapter 46 entitled: Lady Superintendents and Women Warders. Rule 1004 of Chapter 41 entitled: Deputy Superintendent. Rules 225, 242, 243, 1992 244, 245 248, 249 of Chapter 9 entitled: The Classification and Separation of Prisoners. Rules 250, 252, 253, 254, 255, 256, 257, 261, 262, 263, 264, 265, 266, 267 of Chapter 10 entitled: Superior Class Prisoners. Rules 180, 181 Chapter 7 entitled: Transfer of Prisoners. Rule 1078 of Chapter 1999 (filed on 31-31999) 44 entitled: General Rules Relating to Prison Officers. Master Ijaz Hussain v. Government of 1402 Pakistan. (iv) Shariat Petition No.4/I of2004 filed originally on 2004 and refiled on 23-12-2008 Dr. M. Aslam Khakhi v. Federation of Pakistan and others Section 30(2) Prisons Act, 1894 and Rules 624(f), 633 of Chapter 25 entitled: Prisoners in cells. Reference to Rules in the above noted Petitions or in the body of this Judgment means Pakistan Prison Rules, 1978. 2. The first cause to be agitated on the subject of prison discipline was registered as Shariat Petition No.61/I of 1992. It was moved on 18-10-1992 and admitted to regular hearing on 12-11-1992. This petition challenged Rules 307, 314, 935, 939, 1004, 4180 and 1181 of Pakistan Prisons Rules on the ground that under Islamic provision no woman can be placed in custody of a Ghair-Mahram and the conditions of service which could lead to indecency would also be forbidden. Shariat Petition No.62/I of 1992 was filed on 1-11-1992 and admitted to regular hearing on 17-10-1993. It sought to challenge Rules 180, 181, 225, 242, to 245, 248 to 250, 252, to 257, 261 to 267 as well as section 59 of the Prisons Act, 1894 on the ground that classification of prisoners into A, B and C category was violative of Injunctions of Islam. No injunction was however mentioned. Shariat Petition No.12/I of 1999 was filed on 22-3-1999 and admitted to regular hearing on 5-6-2000. This petition impugned Rule 1078 which prohibits employment of dismissed Government Servant and previous convicts. It was urged that earning of Rizq-e-Halal i.e., legitimate livelihood is the right of every person. No injunction of Islam was shown to have been violated by this provision. Shariat Petition No.4/I of 2004 was moved on 23-12-2008 and placed before the Court at Karachi on 14-12009 when, after admission, it was ordered to be heard alongwith Shariat Petition No.61/I of 1992. The subject matter of Shariat Petition No.4/I of 2004 is section 30(2) Prisons Act, 1894 (Act IX of 1894) which relates to prisoners under sentence of death commonly known as Condemned Prisoners. During the course of arguments on other petitions we had already on our own motion, before the filing of Shariat Petition No.4/I of 2004 on 14-1-2009, taken notice of section 30 of the Prisons Act, 1894 as a whole along with the related provisions contained 'in Chapter 14 of the Prison Rules. This was the time when the issues pertaining to the controversy in hand were being re-structured. Issue No.VI in fact related to the Condemned Prisoners. We had also taken Suo Motu notice of some other provisions. The judgment in these petitions was to be announced before June, 2009 when it transpired that regular notices had not been formally issued to the parties in matters wherein the Court, on its own motion, had decided to examine certain legal provisions. Notices, as directed, were, therefore, issued on 20-6-2009 for further hearing in August 2009. Further hearing in these connected mattes was deemed necessary firstly for the reason that a few months had elapsed when we last heard arguments in these petitions and the judgment had not been announced and secondly on the ground that we also wanted to hear the view point of parties as regards the subjects in which this court had, during the course of 1403 arguments, taken notice on its own motion. Formal legal processes had been issued in this regard. Section B: Shariat Miscellaneous Applications. 3. During the pendency of the above mentioned Shariat Petitions, following Shariat Miscellaneous Applications were also moved in the Federal Shariat Court to impugn certain provisions of law with different prayers. The description of these applications is tabled below:--- Sh. Miscellaneous application No. (i) Sh. Misc. App. No.21/I of 1995 (filed on 9-4-1995) Master Ijaz Hussain v. Government of Pakistan (ii) Sh. Misc. App. No.16/I of 1997 (filed on 7-7-1997) Master Ijaz Hussain v. The State (filed on 77-1997) Master Ijaz Hussain v. The State (iii) Sh. Misc. App. No.19/I of 1997(filed on 23-8-1997) Capt. Retd. Mukhtar Ahmad Sheikh v. Federal Government of Pakistan (iv) Sh. Misc. App. No.10/I of 1998(filed on 22-7-1998) S.P.No.61/I of 1992 Dr. M. Aslam Khaki v. Federation of Pakistan and others (v) Sh. Misc. App: No. 11/I of 1998(filed on 23.07.1998) Provision Challenged Section 382-B of the Code of Criminal Procedure and other matters. Rule 546 of Chapter 22 entitled: Letters and Interviews and Rules 690 of Chapter28 entitled Discipline And Daily Routine. Rules relating to classification prisoners into A, B & C category. Chapters 2 and 10 of the Rules entitled: Classification of Prisons; Superior Class Prisoners respectively. This application seeks amendment in Sh. Petition No.61/I of in 1992. Rules 307(i) and 314 of Chapter 13 entitled: Women Prisoners and Innocent Children. This is an amended petition and impugns Rules 242(b), 245(d), in (e), (f) 248(i)(ii) of Chapter 9 entitled: The Classification and 1404 Separation of Prisoners. S.P.No.62/I of 1992 Dr. M. Aslam Khaki v. Government of Pakistan and others 4. The legal instruments challenged through these Shariat Miscellaneous Applications as well as the ground of attack are being mentioned below very briefly:-- (i) Shariat Miscellaneous Application No.21/I of 1995 was moved by prisoner Master Ijaz Hussain from Central Jail, Faisalabad, on 9-4-1995 in which he raised the following 11 contentions for consideration of the Federal Shariat Court:--- (a) The use of Bar Fetters is un-constitutional, un-Islamic and is violative of the Islamic principles of human dignity; (Bar fetters are no more in use) (b) Prisoners undergoing long terms sentences be released on parole for two months every year for the performance of conjugal rights and looking after family affairs; (Provision already incorporated). (c) For grant benefit of section 382-B of the Code of Criminal Procedure should be given invariably to the prisoners; (Notice taken) (d) Judicious and equal grant of remissions to prisoners on auspicious days; (Already applicable). (e) All the Government employees who are convicted should get suspension allowance till such time that their appeals are finally decided by the Supreme Court; (Does not concern Prison Rules). 1405 (f) While awarding concurrent sentence there should be no discrimination between the poor and influential prisoners; [Note: This question was not raised at the time of arguments. However the case of Bashir and 3 others v. The State PLD 1991 Supreme Court 1145 may be seen]. (g) The execution of the sentence awarded to the prisoners by the Superintendent of Jail should not be executed till it is confirmed by the District and Sessions. Judge concerned; (Notice already taken). (h) The District and Sessions Judge should visit Prisons in their jurisdiction every month to redress the genuine grievances of the prisoners; (This is already being done). (i) Proper arrangements should be made outside the prison house for those who come to visit the prisoners; (Notice already taken). (j) Free legal aid should be provided to the prisoners at the initial stage in the Supreme Court of Pakistan when petition for special leave to appeal is moved; (Notice already taken). (k) Maintenance allowance from Bait-ul-Mal be given to the dependents of needy prisoners. (Does not relate to Prison Rules). [Note: The fate of each contention mentioned above has been under lined in brackets] i. This application was admitted in Islamabad on 10-7-1997 by a Full Bench of the Federal Shariat Court. Written arguments were submitted by some convicts in support of these contentions in which it was contended that Islamic teachings enjoin equality and it was further stated that the 1406 Holy Prophet (p.b.u.h.) once let off a prisoner of war without demanding compensation. It was therefore contended that the Zakat fund maintained officially by State should be used for securing release of the prisoners. This aspect will be discussed in Segment Fifteen. ii. Shariat Miscellaneous Application No.16/I of 1997 was also moved by Master Ijaz Hussain on 7-71997 from District Jail, Faisalabad to challenge Rules No.546 and 690 of the Jail Manual. Rule No.546 makes it mandatory for the--Superintendent Jail to censor letters sent by or addressed to a prisoner. No.690 deals with list of articles which are prohibited in the prisons. However the petitioner has not mentioned verses of Holy Qur'an or Sunnah which have been violated by these two rules. This topic is the subject matter of discussion in Segment Three of this judgment. iii. Shariat Miscellaneous Application No.19/I of 1997 was moved by Capt. (Retd.) Mukhtar Ahmad Shaikh on 23-8-1997. It is in fact a letter requesting the Federal Shariat Court to examine the question of classification of prisoners into class A, B and C because the Pakistan Law Commission did not deal with this issue in its report on jail reforms. There is no reference to any verse of Holy Qur'an or Sunnah in support of the contention that the classification of prisoners in class A, B and C is ultra vires the Injunctions of Islam. This topic will be discussed in Segment Two. iv. Shariat Miscellaneous Application No.10/I of 1998 in Shariat Petition No.61/I of 1992 was moved by Dr. Muhammad Aslam Khaki on 14-7-1998. This Miscellaneous Application does not challenge any existing provision of the prison discipline but it seeks to propose amendments in Rules 307(i) and 314. v. Shariat Miscellaneous Application No.11/I of 1998 was moved on 15-2-1997 by Dr. M. Aslam Khaki to amend the main Shariat Petition No.62/I of 1992 with the object of seeking a declaration that Rules 242(b), 245(d), (e) and (f) as well as Rule 248 (i) and (ii) are repugnant to the Injunctions of Islam. These legal provisions deal with classification of prisoners into class A, B and C as well as D the classification of under-trial prisoners. The contentions raised therein will be discussed in detail in Segment Two. ISSUES INVOLVED 1407 5. The above mentioned Shariat Petitions and Miscellaneous Applications were heard on more than 20 occasions spread over a period of 16 years. During this period certain obstinate questions relating to prison discipline also became subject matter of public debate at socio-political plane. In order, therefore, to resolve the controversy agitated before us through these petitions, two steps were taken: firstly, to consider the prison discipline as amended upto date instead of scrutinizing the prison discipline as it prevailed in 1992 when these petitions were moved and secondly to strike consensus issues afresh with the active assistance of the learned counsel for the parties, in order not only to understand the scope of the problem agitated before us but also to make effort to define the limits of the controversy in order to finally determine the various questions under review. The issues were therefore refrarned. Supplementary issues during the course of arguments cropped up which are also being incorporated after mentioning the re-framed issues. (i) Whether a prisoner be allowed to perform conjugal rights in the prison? (ii) Whether the female prisoners be allowed to remain under control and conduct of the male staff of Jail? (iii) Whether various classes i.e. A, B, C in the Jail be allowed to prisoners on the basis of their status, position, educational and financial background? (iv) Whether remission of sentence be granted to prisoners on festival and special occasions? (v) Whether financial assistance and remuneration for labour of prisoners be provided to the families of prisoners? (vi) Whether a convicted person sentenced to death whose appeal has not been disposed of for long be allowed to suffer double punishment of imprisonment? 1408 (vii) Whether all prisoners who have not been given benefit under section 382-B, of the Code of Criminal Procedure should by a general order be accorded benefit thereunder? (viii) Whether the provision of section 35 of the Code of Criminal Procedure be made mandatory so that sentences awarded to prisoners in two or more sections under one F.I.R. be made to run concurrently? (ix) What facilities and conveniences be provided to the prisoners and their families? (x) What measures be taken for rehabilitation, reformation and character building of prisoners? 6. At the close of lengthy arguments spread over years the following questions were however considered germane to the ten issues already under consideration. SUPPLEMENTARY ISSUES (a) Whether the punishment by way of rigorous imprisonment is not opposed to Islamic Injunctions? This point is not the subject-matter of any Shariat Petition. (b) Whether uncompensated hard labour, as a consequence of imposition of the punishment of rigorous imprisonment by criminal courts, can be exacted from a convict without violating Ayat 29 Sura 4 of Holy Qur'an and the tradition "The wages of a labour should be paid immediately" quoted by Ibn Maja in the Book on Mortage? 1409 Issue answered in this Judgment. See Segment 19 (c) What are the rights of an accused before and after the verdict has been recorded? Issue answered in this Judgment. See Segment 15 (d) Whether a system be not evolved on the basis of Islamic Insurance permissible by Islamic Injunctions, to compensate the victim in advance and then deduct the same from the wages in instalments on monthly basis from the wages that will be earned by a prisoner within prison precincts? Proposal given: See Segment 19 (e) Whether a convict can be declared as condemned prisoner the moment a trial court announces capital punishment upon him notwithstanding the fact that the sentence is subject to confirmation by the High Court? and he still has a statutory right of appeal against confirmation of his conviction and sentence by the High Court; Issue answered in this judgment. See Segment 13 (f) Whether the isolation imposed upon an already incarcerated condemned convict while confined in a death cell is at all justified in the light of Islamic Injunctions? and Issue answered as above 1410 (g) Whether the current amount of Rs.33 allocated by the Prison Department as dietary money per person per diem is adequate to sustain a normal healthy person? Reference Ayat 8 Sura 76 (Al-Dahr). Issue answered in this judgment. See Segment 11 (h) Whether the sentences awarded to persons convicted under different counts in relation to the same crime report should not be made concurrent by operation of law. Issue not raised in any petition. (i) Whether Prison Department should not be under administrative control of Judiciary Suggestion made in Segment 14 (j) What are the main causes of Jail Riots? Mentioned in Part-B of Segment Fifteen of this Judgment. (k) Issue No. VI relating to Condemned Prisoners was recast to read as follows:--- "Whether the person, sentenced to death by the trial court, should continue being treated as a Condemned Prisoner immediately after the trial court has announced its verdict and 1411 before his appeals or mercy petitions are decided and thereby subject him to additional hardships and strict surveillance in squalid and overcrowded cells?" (l) In view of notices sent in the related matters the following issues were also struck:--- (a) What are the causes of Jail riots? (b) Are the Guiding Principles (the Permanent Values), enunciated in the Holy Qur'an, not covered by the scope of the term Injunctions of Islam? Can these principles be identified? (c) What are the problems associated with prison discipline and what are the possible solutions? (d) What are the rights of accused/prisoners in our legal system. 7. We decided to deal with the four Shariat Petitions and five Shariat Miscellaneous Applications through this consolidated Judgment as the substance of all these petitions is the same i.e., prison discipline. Though the provisions actually challenged before us by the applicants have been picked up from different chapters of Prison Rules, The Prisons Act, 1894 and the Code of Criminal Procedure, 1898, yet during the course of arguments copious reference was made to various chapters of the Rules and laws relating to criminal administration of justice. For all practical purposes we had to go through various legal instruments in force in Pakistan in addition to the Pakistan Prison Rules, 1878 while deciding these eleven connected matters. 8. During the hearing of these petitions we had the opportunity to go through some of the International documents relevant to the controversy before us. The reasons for considering the contents of these instrument and making a reference to these International Documents in this judgment are firstly that a larger Bench of the Federal Shariat Court through this Judgment will, for the first time in our judicial history go through the entire provisions of Prison Discipline in Pakistan; 1412 secondly to enable individuals, groups and authorities, working in different capacities towards achieving the goal of a better and human friendly prison disciple, to appreciate and profit from the views adopted and steps taken at global level by renowned jurists and friends of humanity on a long neglected chapter of the administration of criminal justice; thirdly a perusal of these documents will certainly enable the policy making Executive and the law making Legislature to comprehend not only the dimensions of the problem but will assist them in appreciating the mode and manner in which the leaders of public opinion in different jurisdictions the world over, succeeded in introducing human friendly measures in the once very oppressive and degrading discipline; and fourthly, the need to watch, examine and adopt new developments in contemporary societies is a religious obligation of every Muslim in view of the following precepts of the Holy Prophet PBUH, which must be kept in mind whenever amendments are about to be incorporated in the existing legal code. (a) Wisdom (erudition) is the lost treasure of a believer. He should acquire it (whenever and) from wherever it is available. Hadees No.2687 in Kitab-ul-Ilm Jama Tirmazi and Ibn-e-Maja. (b) Acquistion of knowledge is obligatory for every Muslim (male or female). Reference Ibne-Maja, Volume 1 (urdu translation), page 143 Chapter ILM. (c) Muslims must acquire knowledge even if he has to travel to China because acquisition of knowledge is obligatory for every Muslim man and woman. So long as a person is busy in the pursuit of knowledge the angels keep their wings spread for the seeker of knowledge. Reference Hadith No.28697 Bab-ul-Ilm, Volume 10 Kunz-ul-Ummal. (d) Whenever Advice/Information is sought from you, it should be given (honestly). Ibn-eMaja Volume 3. Chapter on Advice. For the sake of reference we have detailed below the list of various legal instruments relating to Prisons, Prisoners and Detenues applicable in Pakistan in section A and the list of International documents relatable to these subject have been noted in section B. To avoid narration of the lengthy text, the titles of relevant legal instruments alone have been mentioned. 1413 A. Pakistani Laws 1. Regulation III of 1818 for the confinement of State prisoners. 2. The Prisons Act, 1894. 3. The Prisoners Rules, 1894. 4. The Reformatory School Act, 1897. 5. Chapter VIII of the Code of Criminal Procedure, 1898 (Chapter 13). 6. The Prisoners Act, 1900. 7. Provisions of the Civil Procedure Code, 1908. 8. Lunacy Act, 1912. 9. The Punjab Borstal Act, 1926. 10. Restriction of Habitual Offender (Punjab) Act, 1918. 11. Good Conduct Prisoners Probationers Release Act, 1926. 12. Superintendence and Management Adaptation of Pakistan Laws Order, 1947. 13. The Probation of Offenders Ordinance, 1960. 14. The West Pakistan Maintenance of Public Order Ordinance, 1960. 15. The Probation of Offenders Rules, 1961. 16. West Pakistan Public Order Detention Rules, 1962.The Defence of Pakistan Rules, 1971. 17. Article 10 of the Constitution of Pakistan, 1973. 18. Pakistan Prisons Rules, 1978. 19. Execution of the Punishment of Whipping Ordinance, 1970. 20. The Punjab Execution of the Punishment of Whipping Rules, 1979. 1414 21. Sindh Execution of the Punishment of Whipping Rules, 1986. 22. Abolition of Punishment of Whipping Act, 1996. 23. Prisons (NWFP) (Amendment) Act, 1996. 24. Juvenile Justice System Ordinance, 2000. 25. Juvenile Justice System Rules, 2001. 26. Balochistan Ordinance No.VII of 2001. 27. Punjab Ordinance XXXIX of 2001. 28. Punjab Ordinance XL of 2001. 29. Women Protection Ordinance, 2007. 30. Offences under various Court Martial Regulation. 31. Pakistan Law Commissions Report No.80 on Jail Reforms. 32. Rules and Orders of the Lahore High Court Lahore, Volume III, Chapter 27: Judicial and Police Lock-ups. 33. Report of Pakistan Law Commission on Jail Reforms. B. Related International Documents 1. Charter of the United Nation, 1945. 2. The Criminal Justice Act, 1948 (U.K.). 3. Universal Declaration of Human Rights, 1948. 4. European Convention for the Protection of Human Rights, 1950. 5. International Covenant on Civil and Political Rights, 1966. 6. Declaration on Territorial Asylum, 1967. 1415 7. Declaration on the Protection of all Persons from Tortuous and other Cruel, Inhuman or Degrading Treatment or Punishment, 1976. 8. Standard Minimum Rules for the Treatment of Prisoners, 1977. 9. Code of Conduct for Law Enforcement Officials, 1979. 10. African Charter on Human and Peoples Rights, 1981. 11. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984. 12. European Convention for the prevention of tortuous and Inhuman or Degrading Treatment or Punishment, 1987. 13. United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985. 14. Declaration of basic Principles of Justice for Victims of Crime and abuse of power, 1985. 15. Basic Principles for the Treatment of Prisoners, 1990. 16. Protocol to the American Convention on Human Rights to Abolish Death Penalty, 1990. 17. African Charter on the Rights and Welfare of the Child, 1990. 18. Cairo Declaration on Human Rights in Islam, 1990. 19. Protocol No.1 to the European Convention for the Prevention of Tortuous and Inhuman or Degrading Treatment or Punishment, 1994. 20. Arab Charter on Human Rights, 1994. 21. Crime and Criminal Procedure (Escape and Rescue), U.S.A. A resume of these instruments has been tabled in the appendix. Meaning of the term Repugnant 1416 9. The Federal Shariat Court has to examine and decide the question whether or not a provision of law, or a law which includes any custom or usage having the force of law, is repugnant to the Injunctions of Islam. It is called upon, therefore, to see firstly whether the stated Injunction of Islam covers the impugned provisions of law or both are related inter-se and secondly whether the provision under challenge as well as the touch-stone i.e., the Injunctions of Islam can be read and construed together, with a view to harmonizing them; and thirdly whether the impugned legal provision cannot be given effect to without violating the letter or spirit of the Injunctions of Islam. If the NASS i.e. the Injunctions of Islam declares an act or omission to be a sin or something abominable, then the impugned legal provision; permitting such a thing, would certainly be covered by the mischief of repugnance. If it is not possible to retain the impugned legal provision along with the Injunctions of Islam, then the Court would proceed to declare the legal provision under review to be offensive to the Injunctions of Islam. It is therefore imperative to know the meaning of the term repugnant/ repugnance because this word plays a pivotal role in the exercise of jurisdiction. 10. The word Repugnant has however not been defined in the Constitution. Meaning of this word has also not been given in the General Clauses Act. In order to understand its meaning we have no option but to consult the dictionaries and those precedents where the meanings of this word have been explained. Dictionary meanings. (i) extremely unpleasant or offensive MacMillan: English Dictionary. (ii) disagreeable or offensive; distasteful; objecting averse, opposed; B inconsistent, contrary; The World Book Dictionary. (iii) strong feeling of dislike or disgust about something. Incompatibility, of ideas, statements etc; the synonym suggested is repulsive. 1417 Oxford Dictionary. (iv) The urdu meaning of the word repugnant is (Tanafur) (Karahat): Dictionary of Terms/English-Urdu Volume 3 page 1472, 1985 Edition Printed by Urdu Science Board 299 Upper Mall, Lahore. The word "repugnance", according to Kitabistan's New Millennium Practical Dictionary English English-Urdu by B.A. Qureshi means: Nafrat, Napasand The word "repugnancy" according to law Dictionary English Urdu published recently by National Language Authority Pakistan (based 'upon the famous Black's Law Dictionary). means: Tanaqaz, Zid, Adum M u t a b q a t (v) The state of being opposed, highly distasteful, offensive, objectionable, contrary. (The Lexicon Webster Dictionery Volume II, p. 815). (vi) That which is contrary to what is stated before (Wharton's Law Lexicon). (vii) Repugnant: "Repugnant to" really means "inconsistent with" and when they cannot stand together at the same time, and one law is inconsistent with another law when the command or power or provision in the one law conflicted directly with the command or power or provision in the one law conflicted directly with the command or power or provision in the other. Vishnu Bhattathiripaid v. Poulo, 1953 Ker. L. T. 238: I.L.R. 1952 TravCo. 670: A.I.R. 1953 Trav-Co. 327 (D.B.) (ix) Repugnancy is an inconsistency or conflict with something else. Presson v. Presson, 147 p. 1081, 1082, 38 Nev. 203 (Words and Phrases - Volume 37 page 90). 11. The question, therefore, that the impugned provision of law would be repugnant to the Injunctions of Islam only if both of them relate to the same subject matter is not very relevant under Article 203-D or the latter part of Article 227 of the Constitution for the reason that the Injunctions of Islam exist prior in time to the legal provision under question. In other words, the 1418 man-made law has to conform to the pre-existing NASS/Injunctions of Islam. From the wordings of Article 203-D of the Constitution it is abundantly clear that in case of repugnancy, the impugned law or provision of law shall give way to the Injunctions of Islam to the extent of such repugnancy. In other words, the impugned law shall not prevail and declared void without legal effect. Moreover the interpretation of a NASS cannot be static at all because a NASS is a Divinely acknowledged source of guidance till eternity. The constitutional requirement of conformity, which for convenience sake and for the purpose of this judgment, may be termed as Theory of Conformity, under Article 227 of the Constitution is that the laws must conform to the Injunctions of Islam. This theory will pre-suppose that the impugned law and the NASS/Injunction of Islam must not necessarily relate to the same subject. The letter as well as the spirit of the NASS/Injunction of Islam' would be a relevant factor. It should not be violated at all. The Injunction of Islam is a permanent value whereas the legislative instrument is variable. Furthermore the application and interpretation of an Injunction of Islam can neither be limited to a particular time or a clime or for that purpose to any particular provision of law. The Injunctions of Islam or NASOOS are meant to guide in all ages and situations. The possible interpretations of NASOOS cannot be predicted. 12. However according to this theory there can be no repeal of impugned law by implication but a declaration based upon reason must be made under Article 203 D(2)(3) of the Constitution stating clearly that the provision of law under challenge, is repugnant to a given NASS/Injunction of Islam and till such time that the required declaration is not made under Chapter 3A of the Constitution, the presumption of validity of the impugned law, or the provision of law will continue unaffected. In accordance with this Theory of Conformity it would be irrelevant whether the impugned law is general or special in nature or is Federal or Provincial. Even a custom having 'the force of law, existing before or after the commencing day of the Constitution of the Islamic Republic of Pakistan, would be valid and enforceable unless struck down in accordance with the procedure prescribed under Chapter 3A of the Constitution. 13. The net result of the discussion is that the meaning and scope of the term repugnant is not limited only to the actual state of being contrary i.e. contrariety, conflict, antagonistic, opposite or being disparate to the letter of the NASS/Injunction of Islam alone but would also cover the case when an impugned provision of law, law itself or a custom is, disagreeable, repulsive, offensive, distasteful, inconsistent, incompatible, irreconcilable or even averse to the spirit of the NASS i.e. Injunction of Islam. TABLE 1419 Subjectwise Examination 14. With this background we will now take up examination of the contentions and provisions of law impugned before us in the above mentioned petitions and applications. We propose dividing our discussion on the various issues relating to prison discipline, which have been grouped into distinct segments, wherein different provisions, under challenge, will be examined on the touchstone of the NASOOS/ Injunctions of Islam as mandated by Article 203-D of the Constitution. In the end we intend enumerating ground realities relatable to the subject under review and would also consider certain amendments and thereafter we will give closing remarks and our conclusions:--- SEGMENT SUBJECT ONE TRANSFER OF PRISONERS TWO CLASSIFICATION OF PRISONERS THREE LETTERS AND INTERVIEWS FOUR DISCIPLINE AND DAILY ROUTINE FIVE SIX SEVEN LEGAL PROVISIONS ISSUE NO. Rules180-181, Chapter 7 Ix ' Pakistan Prison Rules, 1978 Rules 225 through 267, Iii Chapters 9/10 Pakistan Prison Rules, 1978. Rule 546, Chapter 22 Pakistan Prison Rules,1978 Ix PETITION OR APPLICATION Sh. Petition No.62/I of 1992 Sh. Petition No.62/I1992 Sh. Misc. A. No.19/I of 1997 Sh. Misc. A. No.11/I of 1998 Shariat Miscellaneous Application No.16/I of 1997 Shariat Miscellaneous Application No.16/I of 1997 Sh. Petition- No.61/I of 1992, Sh. Misc. A. No.10/I of 1998 Sh. Petition No.61/I of 1992 Rule 690, Chapter 28, Ix Pakistan Prison Rules, 1978 (Reference S.42/45 Prisons Act, 1894) WOMEN PRISONE'RS Rules 307,314 Chapter Ii AND INNOCENT 13, Pakistan Prison CHILDREN Rules, 1978 SUPERINTEN- DENT Rules 935,939 Chapter Ix OF JAIL 39, Pakistan Prison Rules,1978 LADY ASSISTANT Rules 1180,1181 Ii and ix Sh. Petition No.61/I 1420 EIGHT NINE TEN ELEVEN TWELVE THIRTEEN SUPERINTEN- DENT Chapter 46, Pakistan AND WOMEN Prison Rules, 1978 WARDERS DEPUTY SUPERINTEN- Rules 1002,1004 DENT Chapter 41, Pakistan Prisons Rules, 1978 EMPLOYMENT Rule 1078 Chapter 44, RESTRICTIONS Pakistan Prison Rules,1978 STATUTORY RELIEF Section 382-B Code of Criminal Procedure. DIETARY REQUIREMENTS FAMILY LIFE CONDEMNED PRISONERS FOUR- TEEN GROUND REALITIES FIFTEEN PRISON DISCIPLINE of 1992 Ix Sh. Petition No.61/I of 1992 Ix Sh. Petition No.12/I of 1999 Vii, viii Sh. Miscellaneous Application No.21/I of 1995 Suo Motu Chapter 20 Pakistan Ix Prison Rules, 1978 Rule 545-A, Chapter 22 i, ix Pakistan Prison Rules, 1978 Chapter 14, Pakistan Vi Prison Rules, 1978 and S.30(2) Prisons Act, 1894 Chapter 36,38, 49 PRISON RULES SIXTEEN JAIL RIOTS ON PRISONS SEVEN- TEEN GUIDING PRINCIPLES/ ISSUES UNDER PERMANENT VALUES DISCUSSION EIGHTEEN OFFENCES AND PRISON DISCIPLINE PUNISHMENT NINETEEN PRISONER'S RULE 84 PROPERTY TWENTY CLOSING REMARKS TWENTY ONE CONCLUSIONS Sh. Misc. A. No.21/I of 19 95 Suo Motu X X Sh. Petition No.4/I of 2008 originally registered as S.P. No.4/I of 2004 Suo Motu Sh. Misc. A. No.21/I of 1995 Sh. Misc. A. No.10/I of 1998 Suo Motu suo motu suo motu X suo motu iv,ix, x X suo motu suo motu Final Order of the Court 1421 SEGMENT ONE TRANSFER OF PRISONERS (ISSUE NO.IX) 15. The subject matter of the first segment is Chapter 7 of Rules entitled Transfer of Prisoners. Rules 180-181 have been challenged through Shariat Petition No.62/I of 1992 and Shariat Miscellaneous Application No.11/I of 1998. The text of both the rules is reproduced below:--- Notice to Railway Authorities Rule 180.--- (i) The Superintendent shall give at least three days, notice to the Station Master of the number of persons, both prisoners and guard, for whom reserved accommodation is required and the particular train by which it is desired to dispatch them. (ii) Prisoners on transfer shall be dispatched by ordinary passenger trains except when it may be necessary for special reasons to dispatch them by mail train. Superior class prisoners may travel in a higher class. Rule 181.--- Normally third class railway accommodation shall be provided for prisoners. Superior class prisoners may, however, travel in second class and if they pay the difference in railway fare both for themselves and for the police escort they may be allowed to travel in a higher class. 16. Rule 180 contemplates a notice to the Railways Authorities for prisoner's accommodation and rule 181 deals with the travelling of superior class prisoners. No specific arguments based upon Nasoos were advanced by petitioners to challenge the two rules but it appears that the general 1422 arguments advanced, on the question of discrimination, covered rule 181 under which the superior class prisoners are allowed to travel in better class compartments attached with trains. It will however be appreciated that the superior class prisoner is only given the option to travel in second class compartment on the condition of payment of difference in the railway fare, both for himself and the escort. The prisoner on transfer, while travelling by train in the general compartment, is legally exempt from paying the stipulated railway fare. He travels free. Even in the days of the Holy Prophet (p.b.u.h.) and in the times before and after him the wayfarers would travel on foot or donkeys or horses or camels or even improvised carts' according to the resources available with them. Reference be made to Ayat 27 Sura 22 (Al-Hajj) where Allah Almighty directs Syedna Ibrahim (A.S.) to:- Proclaim the (performance of) Pilgrimage Among people: they will come To thee on foot and (mounted) On every kind of camel, Leap on account of journeys Through deep and distant Mountains, highways. It was not shown to us during arguments that the two impugned rules are repugnant to be letter and spirit of any one or more Injunctions of Islam. Presumption of legality is certainly attached to all legal provisions as contemplated by Article 227 of the Constitution of Pakistan. Hence we do not agree that rules No.180 and 181 contravene any of the Injunctions of Islam. Consequently the part of Shariat Petition No.62/I of 1992 which impugns Rules 180, 181 is hereby dismissed. 17. Notwithstanding dismissal of a part of Shariat Petition No.62/I of 1992 we proceed to take Suo Motu Notice of Chapter 7 of the Prisons Rules as well as Sections 29, and 42 of the Prisoners Act, 1900. These provisions speak in terms of transferring certain categories of prisoners within and beyond the territorial limits of a Province and such transfers of prisoners from one Jail to another Jail within the Province, as seen in the following provisions, is the domain of the Inspector General of Prisons. 1423 A. Rule 147 of Chapter 7. The transfer of prisoners from one prison to another within the Province shall be directed by the Inspector-General. B. THE PRISONERS ACT, 1900 (i) 29.--- (1) The Provincial Government may, by general or special order, provide for the removal of any prisoner confined in a prison-- (a) under sentence of death, or (b) under, or in lieu of, a sentence of imprisonment, or (c) in default of payment of a fine, or (d) in default of giving security for keeping the place or for maintaining good behavior, to any other prison in the Province, or, with the consent of the Provincial Government concerned, to any prison in the other Province or, with the consent of the Federal Government to any prison maintained by it or under its authority in any part of Pakistan. (2) Subject to the orders, and under the control, of the Provincial Government the Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in the Province to any other prison in the Province. 1424 (3) The Federal Government may, by general or special order, provide for the removal of any prisoner or class of prisoners confined in any prison to any other prison in Pakistani maintained by or under the authority of the Federal Government or of a Provincial Government with the consent of the Provincial Government concerned." (ii) Section 42. Power of Government to exempt certain prisoners from operation of this Part.--- The Provincial Government may, by notification in the official Gazette, as the case may be, direct that any person or any class of persons shall not be removed from the prison in which he or they may be confined; and thereupon, and so long as such notification remains in force, the provisions of this Part, other than those contained in Sections 44 to 46, shall not apply to such person or class of persons". 18. Having gone through these provisions we find firstly that no Provision has been incorporated for any notice being given to the prisoner before his removal within or beyond the local limits of a Province and secondly arbitrary powers have been given to the Provincial Government as well as the Inspector General of Prison for transfer of a prisoner to different prisons within the Province and the same unfettered power is enjoyed by the Federal Government when the transfer is to be made beyond the limits of a Province, and thirdly that the right of appeal before an independent tribunal has not been provided against such routine but harsh orders; and fourthly there is no limit to the number of transfers that can be inflicted upon a prisoner. 19. Arbitrary exercise of power by mundane authorities has not at all been conceded by Injunctions of Islam. The Federal Shariat Court in re The Civil Servants Act, reported as In re: The Civil Servants. Act, 1973 PLD 1984 FSC 34 and Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others, PLD 2005 FSC 3, and the Apex Court in the case of Pakistan and others v. Public at large reported as PLD 1987 SC 304 (374) has held that Notice and right of appeal has to be provided whenever an order adverse to the interest of an aggrieved person is passed by any authority. In this view of the matter we find that by now the following principles should be read as part of every statute namely: (a) Notice must issue to a person against whom an order/action, adverse to his interests, is proposed to be made disclosing the reasons for the same with an adequate opportunity to show cause against it. 1425 (b) The authority, office or person issuing any order or direction which affects any person prejudicially, will state reasons for making the proposed order. Reasonable opportunity will also be given to the affected person to show cause against the proposed action. Reference section 24-A General Clause Act, 1897. (c) Right of appeal before an independent tribunal/authority, higher than the one which issues the impugned order, vests in the person aggrieved by an adverse order. The District and Sessions Judge of the District should be the appellate authority. 20. The origin of these principles can be traced to Ayaat 14 and 71 of Sura 17; Ayat 12 Sura 36; Ayat 29 Sura 45: Ayaat 18, 19 and 25 of Sura 69; Ayat 20 of Sura 83; Ayat 9 of .Sura 84 and Ayaat 6 through 8 Sura 99 of the Holy Qur'an. 21. Direction by the Government or the Inspector General of Prison Department for removal of a prisoner from one prison to another prison within the Province or from one Province to another Province must be supported by a speaking order. Unless it is a question of dire necessity or emergency, a notice of transfer must be given to the prisoner. It is the right of a prisoner to know why he is being transferred away from his home town. There must be legal justification to lodge a prisoner far away from the place of his residence. Such a transfer has, in many cases, worked to serious disadvantage, particularly of women folk and children, of prisoner. We are guided by the tradition of the Holy Prophet (p.b.u.h.) wherein the Muslims have been directed to create facilities for the people and not to add to their hardships and apprehensions: "YASSARA WA LA TOASSARA. 22. As a consequence thereof Rules 147 through 149 of the Pakistan Prisons Rules, 1978 as well as section 29 of the Prisoner's Act, 1900 is hereby declared repugnant to the above mentioned Injunctions of Islam. However the repugnancy is to the extent that the Government enjoys unfettered power to transfer a prisoner from one Province to another Province without giving notice to the prisoner or without obtaining his consent or without referring to any lawful reason by way of a speaking order conveyed to the detenue and without providing any remedy against exercise of such authority. Similarly the power of the Inspector General of Prisons to transfer a prisoner from one prison to another within the Province without notice or consent of the prisoner and without providing a right of appeal before an independent tribunal is declared as repugnant. 1426 Chapter 7 of the Jail Manual and section 29 of Prisoners Act, 1900 should be recast in a manner in which (a) arbitrary, unbridled and unfettered powers are neither given to the Government nor the Inspector General of Prisons; (b) and unless the gravity of the situation really demands an expeditious action, transfers within the Province or beyond the limits of Province, without notice or consent, should be eschewed. This however does not cover the case of a convict whose release is due and he is being transferred near his home town as provided in Rule 148 or who is required to be produced in another court in a case being tried elsewhere or- there are other reasonable ground such as safety, security or health. However the transfer policy should be based upon reasonable considerations subject of course to notice and the right of appeal or representation before an independent tribunal. Notice need not be given where a prisoner himself seeks transfer on solid grounds. 23. There is not much case law available on the point. However the case of Ataullah Mangal v. The State PLD 1965 Kar. 350 and the case of Ali Muhammad v. State reported as 1974 PCr.LJ 249 may also be considered by the amending authorities. This decision regarding repugnancy of the impugned provisions of law will take effect as from 1-12-2009 during which period the necessary amendments, additions or alterations may be effected by relevant authorities. SEGMENT TWO CLASSIFICATION OF PRISONERS (ISSUE NO.III) Rules 224-249 find mention in Chapter 9 of the Pakistan Prisons Rules, 1978. The title of this chapter is Classification and Separation of Prisoners. Rules 250-270 are contained in Chapter 10 entitled Superior Class Prisoners. These provisions have been challenged in Shariat Petition 62/I of 1992 as well as Shariat Miscellaneous Application No.19/I of 1997 and Shariat Miscellaneous Application No.11/I of 1998. The emphasis of learned counsel appearing in support of these petitions was on all the provisions contained in the two chapters which deal with classification and separation of prisoners with particular reference to the privileges attached with categories A and B. In order therefore, to appreciate the controversy it would be useful to examine the text of the impugned provisions in Chapters 9 and 10 together:--- CHAPTER 9 1427 The Classification and Separation of Prisoners Classes of Prisoner Rule 224--- A prisoner confined in prison may be-- (i) a criminal prisoner which includes: (a) a convicted prisoner; and (b) an unconvicted or undertrial prisoner: (ii) a civil prisoner; or (iii) a State prisoner detained under Regulation III of 1818, or a person ordered to be detained in prison without trial under any law relating to the detention of such person. Note. Lunatics may also be temporarily detained in prisons under the orders of the Magistrate. Classification of convicted prisoners Rule 225-- (i) Convicted prisoners shall be classified into 1428 (a) superior class; (b) ordinary class; and (c) political class (ii) Superior class includes A and B class prisoners. Ordinary class comprises of prisoners other than superior class. Political class comprises of prisoners who commit crimes not for personal gain but for political motives. This class is not criminal and does not require reformative or correctional treatment. Casuals and habitual Rule 226--- Convicted prisoners are classified into casuals and habitual. (i) Casuals are first offenders and who lapse into crime not because of a criminal mentality but on account of their surroundings, physical disability or mental deficiency. (ii) Habituals are:--- (a) Ordinary habituals prisoners; and 1429 (b) Professionals or repeaters. Ordinary habitual prisoners are those frequently lapse into crime owing to their surroundings or some physical or mental defects. Professionals or repeaters are men with an object, sound in mind and in body, competent, often highly skilled, who deliberately and with open eyes prefer a life of crime and know all the tricks and manoeuvers necessary for that life. They may be first offenders. Classification of convicted prisoners according to age Rule 227--- Convicted prisoners are further classified as under:--- (a) Juveniles under the age of 18. (b) Adolescent over 18 and under 21 years of age. (c) Adults over the age of 21. Nature of sentence Rule 228---There shall be two classes of convicted prisoners according to the nature of their sentence, i.e.:--1430 (a) those undergoing rigorous imprisonment; and (b) those undergoing simple imprisonment. Classification of Under-Trial Prisoners Rule 229.---Undertrial prisoners shall be classified as under:--- (a) Committed to Sessions. (bi) Committed to other Courts. For Sindh Province only In rule 229, for the word "committed" the word "sent" shall be substituted. Classification of women prisoners Rule 230.--- Women prisoners will be classified in the same manner as is provided in the case of males. Separation of prisoners 1431 Rule 231.--- Prisoners shall be kept separate as under:--- (i) In a prison containing men as well as women prisoners, the women shall be imprisoned in a separate prison, or separate part of the same prison in such manner as to prevent their seeing, conversing or holding any communication with the male prisoners. (ii) Juveniles shall be kept separate from all other prisoners. (iii) Under-trial prisoners shall be kept separate from convicted prisoners. (iv) Civil prisoners shall be kept separate from criminal prisoners. (v) Political prisoners shall be kept separate from all other prisoners. For Sindh Province only In rule 231, for sub-rule (ii) the following sub-rule shall be substituted, (ii), Juveniles shall be kept in a separate institution or jail, or if there be no separate institution or jail in any area, in a separate part of the same prison in such manner as to prevent their meeting or holding communication with adult prisoners. Further provisions regarding separation 1432 Rule 232.--- Separation of the following prisoners shall, to the extent to which it can in each prison be observed, be carried into effect; (i) Under trial prisoners who have been committed to Sessions, shall be kept separate from under trial prisoners who have not been so committed and those who have been previously convicted shall be kept separate from those who have not been previously convicted. (ii) Casual convicted prisoners shall be kept separate from habitual convicted prisoners. (iii) Simple imprisonment prisoners shall be kept separate from the rigorous imprisonment prisoners. (iv) Convicted prisoners who are under 16 years of age shall be kept separate from convicted prisoners who are more than 16 years of age, (v) Every habitual criminal shall, as far as possible be confined in a special prison in which only habitual criminals are 'kept. The Inspector-General may, however sanction the transfer to such special prison of any prisoner not being a habitual prisoner, whom for reasons to be recorded, the Superintendent of the prison believes to be of so vicious and depraved a character: as to make his association with other casual prisoners undesirable. Prisoners so transferred shall not otherwise be subjected to the special rules affecting the habitual criminals. (vi) Political prisoners may be kept separate from each other, if deemed necessary. Exception to the Rule regarding separation 1433 Rule 233.--- When in any prison only one prisoner exists in any class and separation would amount to solitary confinement, such prisoner, if he so desires, be permitted to associate with prisoners of another class in such a manner so as not to infringe the provisions of Section 27 of the Prisons Act, 1894.. Association and segregation of prisoners Rule 234.--- Subject to the provisions of Rule 231, convicted prisoners may be confined either in association or individually in cells or partly in one way and partly in the other. Segregation of under trial prisoners Rule 235.--- Under trial prisoners may be confined separately in cells, when in the opinion of the Superintendent, it is necessary in the interest of the prison discipline to do so, or under the orders of the Inspector General, or of Government. Occupation of vacant cells Rule 236.---Cells not in a use for purposes of punishment or otherwise, shall be occupied by the convicted prisoners for the purpose of separation subject to the following conditions:--- (a) Juvenile shall in preference to any other class of prisoners be ' confined in cells both by day and night. (b) Prisoners convicted under section 366 (A)', 376 and 377 of the Pakistan Penal Code, shall in preference to prisoners other than juveniles be placed in cells both by day and night. 1434 ( c) Habitual prisoners shall be placed in cells both by day and night in preference to casual prisoners. Sections 366-A, 376 and 377 of Pakistan Penal Code are: Section 366-A. Procreation of minor girl. Section 376. Punishment for rape Section 377 Unnatural offences Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this Section. Separation of habituals Rule 237.---Habitual prisoners shall be subjected to the system of separation prescribed in the preceding rules in rotation. Separation of casuals Rule 238---If at any time there are more cells in any prison than suffice for the separation of all habituals, prisoners of the casual class shall be confined in cells by night only in rotation. 1435 Procedure when separation by day is not feasible Rule 239.---A convicted prisoner who would ordinarily come under the operation of any of the preceding rules relating to the separation of prisoners, but cannot be confined in a cell by day, by reason that he is required for some prison service shall be confined in a cell by night. Explanation--Separation under Rules 235 to 239, is restricted merely to the separation of individual prisoners for purpose of prison management; such separation is not to have any irksome conditions attached to it. Separation of prisoners to prevent the commission of any offence Rule 240.---If in the opinion of the Superintendent, the presence of any prisoner in association with others is detrimental to good order and discipline, and is likely to encourage or lead to the commission of any offence, such prisoner may be kept separate in a cell. Separation to be as-complete as possible Rule 241.---Subject to the provisions of Rule 233, the separation of the various classes of prisoners shall be carried out to the fullest extent as far as possible. If there are not a sufficie nt number of latrines, bathing rooms and feeding arrangements to keep the classes completely apart, such arrangement for separation as are under the circumstances practicable shall be made. Rules for the classification of prisoners into "A", "B" and "C" Class Rule 242.---(i) Convicted shall be divided into three classes; "A", "B" and "C" class. Class will contain all prisoners who are--1436 (a) casual prisoners of good character; (b) by social status, education and habit of life have been accustomed to a superior mode of living and; (c) have not been convicted of offence involving elements of cruelty, moral degradation, personal greed, serious or premeditated violence, serious offence against property, offences relating to the possession of explosive, firearms and other dangerous weapons with object of committing or enabling an offence to be committed and abetment or incitement of offences . falling within these sub-clauses. (ii) Class "B" will consist of prisoners who by social status, education or habit of life have been accustomed to a superior mode of living. Habitual prisoners can be included in this class by order of the Government. (iii) Class "C" will consist of prisoners who are not classified as and "B Classifying authority Rule 243---For "A" and "B" Classes the classifying authority will be the Government. Courts may classify prisoners into "A" and class pending final orders of the Government. Class "C" will be classified by the trying Courts, but such prisoners will have a right to apply for revision to the Government. Petitions of revision will be forwarded by the Superintendent to the InspectorGeneral for transmission to Government. Superintendent may award B class to convicted prisoners. 1437 Rule 244.---In case convicting Court omit to classify convicted prisoners for better class treatment. Superintendents of prisons subject to the approval of Government may classify them as "B" class prisoners, provided that such prisoners appear to fulfil the conditions prescribed for better class treatment. Qualifications for "A" and "B" class Rule 245.--- The recommending authority shall invariably furnish to Government the following details when recommending a prisoner to "A" or "B" class. (a) Whether the prisoner is casual or habitual. (b) Previous convictions if any. (c) Offence and sentence. (d) Social and financial status of family. (e) Profession of the prisoner. (f) Income of the prisoner, if any. (g) Academic qualifications of the prisoner. 1438 If the statement of the prisoner on these points requires verification, further enquiries should be made from the [District Coordination Officer] or any other source. The recommending authority may either defer making any recommendations until it has received the information asked for or may, make the recommendations on the materials available and state that the result of further enquiries will be submitted when received. Disagreement between the convicting Court and the District Coordination Officer. Rule 246.---In case in which there is disagreement between the convicting Court and the District Coordination Officer, as to the classification of any prisoner, the [District Coordination Officer] shall decide the class in which a convicted prisoner shall be kept pending final orders of the Government. Condemned prisoners governed by these rules Rule 247.---The above rules shall also apply to the prisoners under sentence of death. Classification of under-prisoners Rule 248.---(i) There shall be only two classes of under-trial prisoners--- (a) better class; and (b) ordinary class. 1439 (ii) better class will include those under-trial prisoners who by social status, education or habit of life have been accustomed to a superior mode of living and will correspond to "A" and "B" class of convicted prisoners. Ordinary class will include all others and will correspond to "C" class. (ii-a) Those under-trial prisoners who pass matriculation or higher examination in 1st Division during their stay in the jail shall be allowed better class jail facilities with effect from the date the result is announced. (iii) Before an under-trial prisoner is brought before a competent Court, it will be at the discretion of the Officer [not below the rank of Assistant Superintendent/Deputy Superintendent of police having jurisdiction in the area] to properly classify him. After he is brought before the Court, he will be classified by that Court, subject to the ' approval of the Provincial Government. (b) Rule 248.--- Order passed under R.248 with approval of District Coordination Officer cannot be revised by that authority. For Sindh Province Only In rule 248:- After sub rule (ii), the following new sub-rules shall be added: (ii-a) Members of the Senate, National Assembly, Provincial Assembly, Officers of grade 17 or above in the Federal or Provincial Government, Commissioned Officers in the defence forces or the Rangers, Mayors of Metropolitan Corporations, Chairmen of Municipal Corporations and District Councils, officers in autonomous institutions or corporations established or controlled by the Federal or any Provincial Government, holding posts equivalent to or higher than grade 17 in Government, and - any person paying income tax or agricultural/wealth tax not less than Rs.10,000 per year shall be classified as better class facilities, both in the jails, and sub-jails and while in police custody; 1440 (ii-b) those under trial prisoners who pass matriculation or higher examination in 1st division during their stay in the jail shall be allowed better class jail facilities with effect from the date of result is announced. (b) for sub-rule (iii) the following sub-rule shall be substituted, "(iii) The court competent to try a prisoner, if it is satisfied that the prisoner by reason of his exceptionally high educational or professional qualification or his status is accustomed to a superior mode of life; may by an order in writing, with reasons therefor, classify such prisoner as better class prisoner. Provided that if such order is passed by any court sub-ordinate to a Sessions Court," the order shall be subject to approval of the Sessions Judge. Classification of political prisoners Rule 249.---Classification of political prisoners will be determined by the authority ordering their retention in prison. CHAPTER 10 SUPERIOR CLASS PRISONERS Superior Class Prisoners Rule 250.---superior class prisoners are- 1441 (i) convicted prisoners admitted to "A" or, "B" class by order of the Government; (ii) convicted prisoners admitted to "A" or "B" class by order of the Courts pending the orders of Government; and (iii) undertrial prisoners admitted to superior class by order of the Court subject to the provisional order of the Provincial Government. Rule 251.--- Except as provided in the chapter, all prison rules shall also apply to superior class prisoners. Accommodation Rule 252.---(i) Superior class prisoners shall, where such accommodation is available, be kept apart from other prisoners and be accommodated in rooms or in association barracks set aside for them. The imprisonment shall in no case involve any thing in the nature of separate confinement, except when it is given as prison punishment. (ii) In the case of "B" class prisoners, it shall not be necessary to keep them separate from ordinary prisoners in factories or at times when they are not required to be in their rooms or barracks. Tasks Rule 253.---The tasks shall be allotted with due regard to the capacity, character, previous mode of life and antecedents of the prisoners. 1442 Sleeping outside in hot weather Rule 254.---(i) "A" and "B" class prisoners may be allowed to sleep outside their rooms or barracks during the hot weather (1st May to 1st October), if the arrangements in the particular, prison permit this to be done with safety and without any additional expenditure. (ii) This facility shall not be permitted to condemned prisoners admitted to superior class. Furniture Rule 255. (i)--- Rooms shall be supplied with following articles:-- [One cot, one chair, one teapoy, one lantern if there is no electric light, one shelf, and necessary washing and sanitary appliances]. [(ii) Association barracks shall be provided with the following:--- One cot per prisoner, one large table with benches, shelves, sufficient lamps to enable reading at the table, necessary night sanitary appliances, latrines and bath rooms in the enclosure. (iii) A class prisoners may supplement the furniture by other articles within reasonable limit at their own cost, at the discretion of the Superintendent. 1443 (iv) Commodes shall also be supplied to those prisoners who are accustomed to their use and ask for them. (v) They shall be allowed a lamp or light for reading up to 10-00 p.m. Amendment for Punjab/Sindh More Furniture. Rule 255. (i)--- Rooms shall be supplied with following articles:--- [One cot woven with niwar, one chair, one tea-poy, one table lamp, one shelf, one ash tray, one wooden rack and necessary washing and sanitary appliances]. [(ii) Association barracks shall be provided with the following:--- One cot woven with niwar per prisoner, one large table with benches, shelves, sufficient light to enable reading at the tables, necessary night sanitary appliances, latrines and bath rooms in the enclosure. (iii) A class prisoners may supplement the furniture by other articles within reasonable limit [and also portable Radio and T.V. set] at their own cost, at the discretion of the Superintendent [and B class prisoners shall be allowed to keep a portable Radio at their own cost]. (iv) Where flush fittings are not available, commodes shall be supplied to those prisoners who 1444 are accustomed to their use and ask for them. (v) They shall be allowed a table lamp for reading up to 10 p.m. (vi) One waste paper basket will be supplied for each cell and more for association barracks at the discretion of the Superintendent.] Exercise and games Rule 256.---When there is only one superior class prisoner, he should be allowed walking or some other physical exercise for half [2 hours] an hour both morning and evening. Where the number of such prisoners exceeds one, outdoor games such as volley ball, deck tennis and badminton may be allowed at the discretion of the Superintendent, provided that the space in the enclosure permits it. The initial expenditure in every case shall be paid by the Government. Indoor games such as cards carom or chess may also be permitted at the cost of the prisoners. Sanitary and bathing arrangements Rule 257. (i)---They shall be allowed reasonable facilities for bathing, latrines, etc., with due regard to the provision of privacy. They use of toilet and washing soap shall also be allowed. Superior class prisoners shall be allowed to keep the articles as permissible under Rule 75. (ii) Soap will be allowed to "A" and "B" class prisoners on the following scale:--- Toilet soap-One cake weighing about 117 grs. for a fortnight. Washing material 117 grs. washing soap 117 grs. and washing soda weekly. 1445 For Punjab and Sindh Provinces only In Rule 257, for sub-rules (ii) the following sub-rules shall be substituted and sub-rule (iii) shall be added:--- (ii) "A" and "B" class prisoners, if they can not afford themselves, shall be allowed the following articles: (a) Toilet soap one cake weighing about 140 grams for a fortnight. (b) Washing material, 125 grams washing powder weekly. (c) Mustard oil 60 grams per week for those who grow hair. (iii) Prisoners in association barracks shall be provided with one fixed mirror of size 57 x 41 c.m., in wall, one hair comb medium quality, one soap case, one Lota plastic one mug plastic and one towel per prisoner and one plastic tub (medium size) for every ten prisoners. A fixed towel hanger shall be provided in each bathroom. Cooking arrangement Rule 258.---When several superior class prisoners are confined together, a separate cook house [two "C" class prisoners for every ten such superior prisoners] shall be provided for them. In the case of a superior class prisoners if confined individually he may be permitted a "C" class prisoner-cook to cook his food. 1446 Utensils Rule 259. (1).. The following utensils shall be supplied to each prisoner:-- One enamel plate, two enamel cups, one metal glass, one spobn and one enamel mug. (ii) A class prisoners if they desire, shall be allowed to use their own utensils. Amendment for Punjab Province only: Better utensils Rule 259.---The existing Rule 259 shall be substituted as:-. (i) The following utensils shall be supplied to each prisoner:--- (a) One full plate,, one quarter plate, one teaspoon, one table spoon and one tumbler of stainless steel and one tea cup. (b) The following utensils shall be supplied to the prisoners for common use by six prisoners. One tea set (tea pot, milk pot and sugar pot). 1447 One tea kettle and one jug of stainless steel. (c) The following articles will be provided in common kitchen for preparation and service of food (for six better class prisoners):--- One steel Tawa, one medium size Parat, one cooking kettle, one cooking spoon, one dish for curry, one dish for sweet, one dish for rice, one fry pan, one meat safe (medium size) and one kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove (where no Sui gas arrangement exists) (d) Any other articles of kitchen requirement, considered necessary, may be provided at the discretion of the Superintendent Jail. (i) A class prisoners if they desire, shall be allowed to use their own utensils.] For Sindh Province only For rule 259, the following rule shall be substituted: (i) The following utensils shall be supplied to each prisoner; One full plate, one quarter plate; one teaspoon one table spoon and one tumbler of stainless steel and one tea-cup. 1448 (ii) The following utensils shall be supplied to the prisoners for common. use by six prisoners:--- One tea set (tea pot, milk pot and sugar pot) one tea kettle and one jug of stainless steel. (iii) The following articles shall be provided in common kitchen for food preparation and services for every six better class prisoners:--- One steel Tawa, one medium sized plate, one cooking kettle, one cooking spoon, one dish for curry, one dish for sweet, one dish for rice, one frying pan. One meat safe (medium size) and one kitchen knife of stainless steel and condiment grinding equipment, one kerosene oil stove (where no sui gas arrangement exists), Note: .The plates and dishes shall be of stainless steel. Any other articles of kitchen requirement, considered necessary, may be provided at the discretion of the Superintendent Jail. (iv) "A" and "B" class prisoners, if they so desire, shall be allowed to use, their own utensils. Diet Rule 260. (i)---Superior diet shall be provided according to the following scale; provided that the Inspector General may, with the approval of the Government, modify or alter the scale of diet to suit the local conditions:--- Name of Article Wheat atta Diet Scale for Meat Eaters Kgr. Grs. 0...583 Diet Scale for Vagetarians eaters Kgr.Grs. 0...583 1449 Dal Meat Milk Vegetable Ghee Sugar Milk for tea Vegetables Potatoes Condiments Salt Firewood 0...117 0 ...17 0...233 . 0...29 0 ...58 0..29 0..117 0...117 0...117 0...15 0...15 1...886 0...117 0...583 0...29 0...58 0...29 0...117 0.2...33 0...117 0...15 0...15 1...886 (ii) Meat eaters can exchange meat with eggs or fish when available, or liver, kidneys, brain, etc., provided cost does not exceed that of the authorized amount of meat 175 grs. (iii) Loaf bread weighing upto 467 grs may be substituted for wheat Atta, in the case of foreigners or Pakistanis accustomed to western diet 467 grs. rice may be substituted for 583 grs. wheat-Atta in case of rice eaters. (iv) Prisoners will not be permitted to accumulate raw rations from day to day. Unconsumed raw rations will be taken back in the prison stock. (vi) The diet in the case of "A" class prisoners may be supplemented at their own expenses with extra article of food of a simple character, provided money for its purchase is deposited with the Superintendent. (vii) The occasional present of fruits to superior class prisoners by their relatives and friends is permitted at the discretion of the Superintendent. Alcohol, intoxicating drugs and articles of luxury shall not be permitted. 1450 (viii) A copy of the scales prescribed shall be hung up in the rooms or barracks where such prisoners are confined. Amendment For Punjab Better Diet Rule 260.--- Against the below noted items the quantity be substituted as follows: Name of Article Meat Tea Potatoes Salt Firewood Kgr.Grs. ...175 0..7 0...117 0...15 1...886 Kgr.Grs. 0...7 0...117 0...15 1...886 For Sindh Province only In Rule 260, in the table of articles and scales the existing quantity of the articles mentioned shall be substituted as given against them:--- Meat Tea Firewood 175 grs 7 grs. 1.886 nil 7 grs 350 grs % (Where gas is not provided) 1451 Clothing and bedding Rule 261. (1)---A class [superior class convicted] prisoners may, within reasonable limits, wear their own clothing and provide their own bedding, shoes, etc. (ii) A class [superior class convicted] prisoners who prefer prison clothing, etc. and all `B' class [deleted] prisoners shall be supplied with clothing and other equipment according to the can given below; provided that the Inspector-General may with the approval of the Government, modify or alter the scale to suit the local conditions:--- Male Prisoners Throughout the year. 2 Dasuti shirts or Kurtas 2 cotton Azarbands. 2 towels. 1 pillow case filled with cotton. iblanket woolen 2 Dasuti Shalwars or trousers. 2 Dasuti caps. 2 Dasuti pillow covers. 2 Dasuti bed sheets. 1 cotton Durrie. During winter--- (1) Woollen jersey. (2) Blankets woollen. (3) Dasuti mattressfoam Mattress 5 cm thick 1452 Women Prisoners; Throughout the year 2 cotton Shalwars. 2 cotton shirts. 2 cotton Dopattas of coarse Muslin. 2 towels. 2 Dasuti pillow covers. 2 Dasuti bed sheets. 1 cotton Durrie. 2 Dasuti pillow covers. 6 napkins. 2 cotton Azarbands. 1 pillow case filled with cotton. 1 blanket woollen During winter 3. blankets woollen. 1 Foam Matters 5 c.m. thick 1 woollen jersey. Amendment for the Punjab Province only: Better clothing and bedding Rule 261.---The existing rule shall be substituted as under:--- (i) A class prisoners may, within reasonable limits, wear their own clothing and provide their own bedding, shoes, etc. 1453 (ii) A class prisoners who prefer prison clothing, etc. and all `B' class convicted prisoners shall be supplied with clothing and other equipment according to the scale given below; provided that the Inspector General may with the approval of the Government, modify or alter the scale to suit the local conditions:- Male Prisoners; throughout the year-- Two Dasuti shirts or Kurtas. Two cotton Azarbands Two Dasuti caps. One foam pillow. Two Dasuti Shalwars or trousers. Two towels. Two Dasuti pillow covers. Two Dasuti bed sheets. Male Prisoners; throughout the year--- One One blanket cotton Durrie. During winter:. One Four One woollen Jersey. blankets (medium quality), foam mattress 5 cm thick. Women Prisoners throughout the year: 1454 Two Two Two Six Two Two Two One Two One One cotton Shalwars. Dasuti pillow covers. cotton shirts. napkins. cotton Dopattas of coarse Muslin. cotton Azarbands. towels. foam pillow. dasuti bed sheets. blanket. cotton Durree. During Winter: Four One One blankets. foam mattress 5 cm thick. woollen jersey. For Sindh Province only In Rule 261, for sub-rule (ii), the following sub-rule shall be substituted: (ii) A class prisoners who prefer prisoner clothing, and all "B" class convicted prisoners shall be supplied with clothing and other equipment according to the scale given below; provided that the Inspector General may with the approval of the Government, modify or alter the scale to suit the local conditions:- Male prisoners throughout the year 1455 Two Dasuti Shirts or Kurtas Two Dasuti Shalwars or trousers Two cotton Azarbands Two towels Two Dasuti caps Two Dasuti pillow covers One foam pillow Two Dasuti bed sheets One blanket One cotton Duree. During Winter: 1456 One woollen jersey Four blankets (Medium quality) One foam matters 5 cm thick Women Prisoners throughout the year Two cotton Shalwars Two Dosuti Pillow covers Two cotton shirts Six napkins. Two cotton Dupattas of coarse Muslin Two cotton Azarbands Two towels One foam pillow 1457 Two Dasuti bed Sheets One blanket One cotton Duree During Winter:--- Four blankets One foam mattress 5 cm thick One woollen jersey. Mosquito nets Rule 262.---Superior class prisoners may be permitted to use, mosquito nets at their own expense. Facilities for reading Rule 263---In addition to books from the prisoner library a prisoner may have any [reading material legally available in the market subject to clearance of Superintendent from private source] number of books or magazines upto a reasonable limit from private sources, provided that such books or magazines are not considered unsuitable by Superintendent, who if in doubt, shall consult the Inspector General. Daily newspapers shall be supplied from a list approved by Government. These papers shall be examined by the Superintendent before issue to the prisoners. 1458 Electric Fans Rule 264.---Prisoners may be allowed to use their own electric fans during the summer season, if such arrangement do not already exist in the ward reserved for them. Letters and interviews Rule 265.---Superior class prisoners shall be allowed to write one letter and have one interview weekly. Both the letter and interview are interchangeable. On urgent occasion such as death or serious illness in a prisoner's family, this rule may be relaxed at the .discretion of the Superintendent. The number of persons who may visit a prisoner at any given times should be limited to six. The discussion of political matters shall not be allowed at these interviews. The subject matter of all letters shall be- strictly limited to private affairs and shall not contain any reference to prison administration and, discipline, other prisoners or politics. Publications of matters discussed at interview or of the substance of letters received from prisoners shall entail the withdrawal or curtailment of this privilege. Menial duties Rule 266.---They shall not be required to perform menial duties nor to pay for having such duties done for them. These duties will be discharged by the prison servants who shall not be used as personal servants by a superior class prisoner. One attendant and one cook prisoner may be allowed to superior class prisoners upto ten in number. Punishments 1459 Rule 267.---There shall be subject to the general rules regarding punishments, except that whipping shall only be inflicted with the previous sanction of the Government. All penalties inflicted on A [Superior] class prisoners by the Superintendent shall immediately be reported to the Inspector-General. In case of misbehaviour, the Superintendent may withdraw individual privileges, subject to the sanction of the Inspector General, when the period exceeds one month, but the power to remove a prisoner from this class rests with the Government only. Discipline Rule 268.---They shall at all times behave in an orderly manner, and shall be required to show due respect to prison officials and visitors. In all respects the prisoners shall be subject to the rules which apply to ordinary prisoners. Transfer Rule 269.---(i) Normally second class railway accommodation shall be provided at the time of transfer from a prison. Prisoners may be allowed to travel by a higher class at their own expense if they wish to do so, in which case they will be required to pay the difference in fares both for prisoners themselves and their escorts. (ii) They shall be conveyed by -taxi or tonga to and from the prison to the railway station at the time of transfer. Prisoners shall not be transferred from a prison in one district to a prison in another district by motor car unless the previous sanction of Government has been obtained. Superior class under-trial prisoners Rule 270. (i)---Accommodation-As far as possible they will be provided with accommodation superior to that provided for "C" class convicted prisoners. 1460 (ii) Diet-- They shall be allowed the same diet as prescribed for B class prisoners. They may supplement it at their own expense provided that the food so obtained is of a simple character. Alcohol, intoxicating drugs and articles of luxury shall not be permitted. (iii) Clothing---Prisoners inadequately clad and who are unable to obtain clothing from private source be provided with B class clothing at Government expense. They may be allowed their own beddings at the discretion of the Superintendent. (iv) Other concessions--- Subject to the discretion of the Superintendent, superior class undertrial prisoners may be provided with ordinary furniture as is allowed to B class prisoners. They will ordinarily by permitted to obtain books, magazines and newspapers, subject to censorship by the Superintendent, and allowed the use of a light upto 10 p.m. [in Winter and 11 p.m. in Summer] (v) Letters.--- Their letters will be subjected to censorship in exactly the same way as those of ordinary undertrial prisoners [by the concerned agencies.] . (vi) Other matters.--- All other rules pertaining to ordinary undertrial prisoners shall also apply to superior class undertrial prisoners. General discussion on classification. 25. Shariat Petition No.62/I of 1992 as well as Shariat Miscellaneous Application No.19/I of 1997 and. Shariat Miscellaneous Application No.11/I of 1998 deal with the question of classification of convicted prisoners and matters relevant thereto. It is significant to note that in this petition, which consists of foolscap seven typed pages, not a single impugned rule or provision of law has been shown to be violative of any one or the other Injunction of Islam. After narrating various provisions it has been stated in paragraph 3 of the petition that "the above classification of the prisoners and discrimination in their facilities is clearly against the principles of justice, equality, equity and fair play as given in Islam". The mover of the petition, in paragraph 1 of this petition, 1461 states that he, as a Muslim citizen of Islamic Republic of Pakistan, has gone through legal provisions relating to prisons and has come to the conclusion that these rules are against the basic concept of justice and equality and hence against the Injunctions of Islam. This is an unfortunate trend that regular petitions and miscellaneous applications are moved in Constitutional- Courts and registered in violation of the procedure laid down in the Federal Shariat Court (Procedure) Rules, 1981. Rule 7 is a mandatory provision contained in Chapter II of the said Procedure Rules. It is entitled of petitions. Rules 7 through 16-A deal in detail with the forms and the contents of petitions moved for consideration of Federal Shariat Court. It is unfortunate that the rules are not being followed by parties to litigation and officials of the Federal Court Registry. It is high time petitions are filed in accordance with the mandated provisions so that the precise issues are brought before the Court for determination without loss of time. The Registry has to be vigilant in this respect. 26. The element of classification of prisoners was seriously and repeatedly objected to by petitioners before us. It has been urged that classification of prisoners into "A", "B" and "C" groups is contrary to Injunctions of Islam. This issue has been canvassed forcefully before us by repeating the solitary argument that Islam teaches equality and further that the entire prison population should have equal facilities and any attempt to differentiate between one or the other class of prisoners would amount to violation of the Injunctions of Islam. This question of discrimination has been raised at different fora during the past few years. Whether it is a case of discrimination or reasonable classification has flow to be determined. 27. Sardar Abdul Majeed, Standing Counsel for the Federal Government however opposed the contention of learned counsel for the petitioner. He contended that it is in very rare cases that the Government or Prison Department grants A or B class to the prisoners. It is only when political detenues are interned under administrative orders that B class is given to such detenues who are neither criminals nor under-trial prisoners. Sardar Abdul Majeed, while referring to certain precedents from. Islamic history, developed the argument that an accused is not entitled to claim equality in matters of punishments by way of Taazir. The judge may consider even a reprimand to be sufficient in a given case. There can therefore, be no claim to equality in every sphere of life. 28. Under the circumstances, it is therefore, necessary to consider this question at length through this judgment because this issue had come up for consideration in the case of Abdul Rashid v. The State 1980 SCMR 632 as well as the case of Waheed Akhtar v. Superintendent, Camp Jail, Lahore and another reported as PLD 1980 Lahore 131 but arguments based upon Holy Qur'an and Sunnah were not advanced before the Honourable Judges for their consideration. 1462 29. Before proceeding it would be useful to make a statement about the principle of Equality vis-a-vis the teachings of Islam. Holy Qur'an and the precepts of Prophet Muhammad, p.b.u.h., are vocal on the issue of .equality status of human beings. The Injunctions of Islam bear ample testimony, as is evident from Ayat 13 Sura 49, that the noblest among the believers in the sight of Allah is the one who is most mindful of his duties towards Allah. Reference may also be made to the Khutba of the Holy Prophet, p.b.u.h., at the time of conquest of Macca as well as the last Sermons. Both the Sermons constitute an illuminating charter of human rights and freedoms wherein Liberty and Equality are declared as basic principles of Divine Message. But equality should not be confused with classification. Islam negates discrimination but uphold reasonable classification. 30. The principle of Equality between human beings is innate in Islamic teachings. When the Holy Qur'an proclaims that every human being is worthy of respect and dignity as is evident from Ayat 70 Sura 17, Bani Israel, it presupposes that all human beings, irrespective of sex, caste, colour, creed, community, country and other man made geopolitical divisions, are equal. The divine statement contained in Ayat 76 Sura 38, to the effect that man was created from clay is a loud and clear proclamation that all human beings are in fact equal. Similarly the declaration contained in Ayaat 22 and 29, Sura 2 Al-Baqra, and repeated at number of places in the Holy Qur'an, namely that the bounties scattered in the cosmos are meant for the consumption of human beings, necessarily implies that human beings are not only equal but enjoy equal opportunities. The Qur'anic principle that those who do good shall inherit gardens clarifies the matter further by suggesting that the criteria of success is good conduct whether done by some one from the lower strata of society or done by a politically and financially strong person or a blue-blooded aristocrat. The right to choose, as enunciated in Ayat 104 Sura 6 and Ayat 29 Sura 18, has been granted to all and sundry. Why? Because Islamic jurisprudence pre-supposes that all the human beings are equal and enjoy the same set of liberties and limitations. The Holy Qur'an is that revealed Book which in fact introduced the concept of unity of human race. Reference may be made to Ayat 213, Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10. Similarly the declaration that no one shall bear the burden of any other soul, as given in Ayat 164 of Sura 67, and that every one is accountable for his deeds as enunciated in Ayat 202 Sura 2, is a clear pointer towards the principle of equality. At the socioeconomic and political level, the Holy Qur'an makes it abundantly clear in Ayat 35 Sura 33, that men who submit and the women who submit, the faithful men and the faithful women etc. etc. shall receive rewards. Ayat 173 of Sura 7 refers to the joint covenant of the children of Adam which is a vivid illustration of equality of all human beings irrespective of time and place of birth. Equivalence is a distinctive feature of Islam. These human friendly principles introduced by Divine Message through the honoured Prophets A.S. paved the way for humanism and the International Charter of Human Rights. 31. rting to the main question of the legality or otherwise of the concept of classification it might as well 1463 be stated that Islamic history is replete with instances which vividly illustrate that the principle of classification has a sanction based upon reasonable and material grounds. The above mentioned cases of Abdur Rashid and Waheed Akhtar were decided without reference to the Islamic Injunctions on the subject. Hence a detailed discussion has been undertaken in this judgment in the light of Islamic principles in resolving the question relating to legal justification of classification of prisoners into various categories notwithstanding the general principle of equality of human beings. 32. s not only the prisoners alone but the prisons in Pakistan have also been divided in different categories as in evident from Chapter 2 of the Prison Rules. -This categorization did not at all seem unreasonable to' the petitioners and they did not opt to challenge this classification. These are all administrative matters and hence beyond challenge. The fact of the matter is that the concept of reasonable classification is now a universally acknowledged phenomenon. The element of inhuman and vicious classification amounting to abject discrimination was an accepted reality in the erstwhile Arab Customary Code and contemporary societies elsewhere. With the advent of Islam a rational and a judicious basis was introduced whenever classification had to be resorted to. However the historically old, appalling' and crude mode of classifying human beings on false grounds of colour, caste, creed or nationality was strictly prohibited by Holy Qur'an and Sunnah of the Holy prophet (p.b.u.h.) as is evident additionally from the following illustrations:-- A. Ayat 11, Sura 4, (An-Nisa) of Holy Qur'an, accepts categorization of surviving relatives of deceased into different classes of heirs and allots specific shares for each class of heirs. This is an admitted proposition of law of inheritance. Care is taken not to discriminate among the heirs of the same class though shares allocated to each class vary. At the same time Holy Qur'an warns the believers in the said verse not to be swayed by personal sentiments or inclinations or apprehensions about the future conduct of the recipients of the legacy. The last full owner should therefore eschew discrimination. Each heir must get the prescribed share. Holy Qur'an while laying down the basis for this principle states: You know not which of them is nearer to you in usefulness. Ayat 11 Sura 4. B. Ayat I of Sura 4, (An-Nisa) of Holy Qur'an contains the following declaration:--- "O people! be careful of (your duty to) your Lord, who created you from a single being and created its mate of the same kind and spread from these two many men and women" 1464 This Ayat on the one hand declares unity of human race and on the other hand classifies humanity into two main classes i.e. Men and Women. The reason for maintaining this classification is the perpetuation of human race. Each sex has been declared to be ZAUJ of the other i.e., both complement one another and each category enjoys a distinct legal capacity with a separate but specific biological role though the twain in the social, economic, political and religious domain, have the same rights and obligations. As a matter of general principle the Holy Qur'an has from the outset classified the entire creation into pairs. In other words the principle of classification is a congenital trait amongst the mortals. Ayat 49 of Sura 51, (Az-Zariat) declares:--- "And of everything We have created pairs that you may be mindful." To the same effect is Ayat 45 of Sura 53 as well as Ayat 39 of Sura 75. C. The most conspicuous example of the principle of equality among human race despite disparate racial and linguistic social groups is to be found in Ayat 13 of Sura 49 of Holy Qur'an. Its translation reads as follows: Ayat 13 of Sura 49, (Al-Hijrat, the Chambers) states:- "O you people, We have, created you of a male and a female, and made you tribes and families that you may know each other, surely the most Honourable is the one among you who is most careful (of his duties); Surely Allah is knowing and Aware ". This declaration embraces the entire humanity, past, present and the future generations. Mankind originated from a couple. The two complement each other. The two were created from a single soul. The tribes, races, and nations are convenient labels by which human being may know the characteristics of different people among themselves but as far as Lord Creator is concerned, the entire humanity is one group referred to time and again in the Holy Qur'an as An Naas. The classification into tribes and families is of course apparent. The purpose of this pluralism in spite 1465 of unity of human race is to ensure the preservation of different languages and cultures and a means of identifying the different ancestries, groups or stocks. We find black, white, tanned and yellow races with distinct languages, cultures and history but the rights of all categories of human beings inhabiting this earth are the same. There is no discrimination from that aspect though the element of mutual classification, from a practical point of view, has been accepted by Holy Qur'an as a social necessity. The Holy Prophet (p.b.u.h.), in Khutba Hijat-ul-Wida declared that neither is a white superior to black nor is an Arab nonpareil. This declaration illustrates Unity in Diversity. D. The Holy Qur'an envisions classification among created thing. It recounts various types of creatures into pairs and species of various categories. Reference may be made to the following Ayaat of Holy Qur'an under different heads:--- (a) The animals in pairs: Ayat 143 Sura 6; Ayat 6 Sura 39 and Ayat 11 Sura 42. (b) Adam and Eve: Ayat 35 Sura 2; Ayat 19 Sura 6; Ayat 117 Sura 20. (c) Other Categories: Ayat 88 Sura 15, Ayaat 53 and 131 Sura 20; Ayat 05 Sura 22, Ayat 07 Sura 26; Ayat 10 Sura 31. See also Ayat 40 Sura 11, Ayat 27 Sura 23, Ayat 03 Sura 13, Ayat 36 Sura 36; Ayat 45 Sura 53; Ayat 39 Sure 75. (d) Categorization in Paradise: Ayat 07 Sura 56, Ayat 52 Sura 55. See also Ayat 35 Sura 02, Ayat 19 Sura 07 and Ayat 117 Sura 20 to show that both categories of sexes will enter heaven. E. The last sermon of the Holy Prophet p.b.u.h. declared that the white race has no preference over the black people. However the existence of different races was recognized. F. Every Prophet of God was a class in himself and each one was endowed with a distinct gift. Each Prophet addressed a different nation in a different age though the source of relevation was 1466 the same. The Book given to each Prophet was different but the Communication did not vary. Syedna Ibrahim A.S. had the SOHF, Syedna Daood A.S. had the ZABOOR, Syedna Moosa As.S. had the TORAH, Syedna Isa had the INJEEL and Syedna Muhammad p.b.u.h. had the Qur'an. Each Prophet is a distinct entity and each one of them is an illustrious link in the celebrated chain of Apostles. The Muslims are commanded not to differentiate between them but the fact of the matter is that even today the followers of the tradition of Abraham (A.S) i.e. Jews, Christians and Muslims are three separate divisions of the same tradition. Reference Ayaat 136, 253 and" 285 of Sura 2, Al-Baqra (The Cow). It might as well be added that notwithstanding the equality of status of the Prophets, as the authorized spokespersons of Allah, Syedna Ibrahim, in the roll call of honour, has the unique distinction of not only being a forebear of a distinguished progeny but the Holy Prophet Muhammad (p.b.u.h.), alone, among the revered descendents of Syedna Ibrahim A.S. had the unique distinction of becaming Khatam-ul-Ambiya i.e. the Seal of Prophets. In Ayat 124 Sura 2, the office of Imamat in addition to prophet-hood, was reserved exclusively for the righteous progeny of Syedna Ibrahim A.S. and he thereby became a distinct and venerable class in himself in the chain of esteemed Prophets of yore. Syedna Ibrahim A.S, as an individual, has also the singular distinction of being referred to as an Ummah. Reference Ayaat 120-122, Sura 16 of Holy Qur'an. This is a distinct honour which no other Prophet shares with him. Ayat 78 Sura 22 indicates that the word Muslim was first used with reference to Syedna Ibrahim A.S. Ayat 253 of Sura 2 of Holy Qur'an makes the point amply clear wherein it is stated: "We have made some of these apostles to excel the others; among them are they to whom Allah spoke, and some of them He exalted by (many), degrees of rank; and we gave clear arguments to Jesus son of Mary and strengthened him with holy revelation." The Holy Prophet Muhammad (p.b.u.h.), though a Messenger like any other Prophet, has alone been described in Ayat 107 of Sura 21 to be Rahmatal-al-Alameen i.e., Mercy for all the nations of the world for all times signifying a class in himself. G. The followers of the Holy Prophet Muhammad (p.b.u.h.) were classified into various categories during his life time and later on as well:--- (I) Muslim: Ayaat 35-36 Sura 33 Surah Al-Ahzab of Holy Qur'an and (II) Momin: Ayat I of Sura 23 Sura Al-Mominoon of Holy Qur'an. Reference may also be made to Ayat 7 of Sura 40 of Sura Ghafir of Holy Qur'an (III) Ibad-ur-Rehman: Ayat 63 Sura 25 Surah Furqan of Holy Qur'an. 1467 (IV) Munafiq: Ayat 1 Sura 63 (Munafiqoon). (V) Muhajir: Ayat 72 of Sura 8 (Anfaal). (VI) Mujahid: Ayat 19 of Sura 9 and Ayat 95 of Sura 4. The Ayat classifies the believers who sit at home i.e. refractory from others who strive in the path of Allah. (VII) Ansaar: Ayat 72 of Sura 8 (Anfaal). (VIII) The First Migrants to Habsha: (IX) Ashra Mubasharah: (The ten companions to receive tidings of Salvation) (X) Badri companions: Reference Ayat 72 Sura 8 of the Holy Qur'an. (XI) Ashab us Shajrah. (Those who submitted under the free) (XII) Those who accepted Islam before the conquest of Makkah. Reference Ayat 10 Sura 57. (XIII) Those who accepted Islam after conquest of Makkah. 1468 (XIV) Ahle-e-Bait-e-Rasool. Ayat 33 Sura 33. (XV) Ummahat-ul-Momineen. Ayat 6 Sura 33. (XVI) People of the Book: i.e. Ahl-e-Kitab. Ayat 70 Sura 3 (XVII) The four rightly guided Caliphs. (XVIII) Division as regards the period: the pre-Islamic period bereft of Divine Guidance is known as Ayyam-ul-Jahilia. The Holy Prophet (p.b.u.h.) is the line of demarcation between the period of darkness and light. (XIX) The Muslims as a whole, followers of the last Prophet (p.b.u.h.), have been classified as Ummat-e-Wusta to distinguish them from the Ummah of the previous Prophets and contemporary nations. Reference Ayat 143 Sura 2 Sura Al-Baqra, (XX) Ayat 7-11 of Surah Waqia, Sura 56 of the Holy Qur'an divides human beings into three classes namely; (i) Companions of the right hand (good luck) Ashab ul Maimanah; (ii) Companions of the left hand (ill luck) Ashab ul Mashamah. (iii) the Foremost in faith. As-Sabeqoon. Of-course this division is applicable to hereafter but the fact of the matter is that the concept of classification according to the Injunctions of Islam is 1469 applicable not only to the mundane life but also to the life after death. (XXI) Believers and Unbelievers. Ayat 254 Sura 2 (XXIII) Reference may also be made to Ayat 177 of Sura 2 (Al-Bagra). In this verse the attributes of a believer are enumerated including the trait that he spends for the love for Allah upon the various classes of persons: (i) Near of kin, (ii) Orphans, (iii) Needy, (iv) The way-farer (v) Those who asked for help; and (vi) For emancipation of captives. Existence of various classes of persons in the society at a given time is recognized in this verse. (XXIII) Denizens of Heavens and Hell is another division visible in the Holy Book. Reference 1470 Ayaat 1-16 Sura 58 (Al-Ghashia The Overwhelming Event). (XXIV) The Meccans had objected to the mission of the Holy Prophet (p.b.u.h.) on the ground that he was neither a chief of the tribe nor a wealthy person. This division, according to nonbelievers at social level was natural and customary because honour was considered to be the preserve of the privileged classes. But the Holy Prophet (p.b.u.h.) became a class unto himself. (XXV) Some people, at the time of Revelation, raised an objection as to why revelation was not directed towards some significant person of Macca or Taif. Ayat 31 states that the blessings of Allah i.e., revelation cannot be divided though material wealth has been divided among people in a way that some are exalted. Abundance of resources is only the provision of this life. The first part classifies human beings into those who are entrusted with Revelation while the other groups received the Message through the Messenger and the second part of these Ayaat deal with un-even distribution of wealth among the people. Reference Ayaat 31-35 Sura 43 AlZukhraf. (XXVI) In the case of divorce, men may enter into another matrimonial contract soon after the divorce; but the women have to wait for a certain period. Reference Ayat 229 Sura 2. This classification is an admitted fact of life notwithstanding the equality of social, political, cultural and 'economic rights between men and women. There is a rational basis for this restriction i.e., the protection of lineage. This however does not become an instance of discrimination. Equality of rights between men and women is however evident inter-alia from Ayat 195 Sura 3, Ayaat 32, 124 Sura 4; Ayat 97 Sura 16 and Ayat 35 Sura 33. (XXVII) Men have been declared as protectors and maintainers of women. This is what Ayat 34 Sura 4, (Al-Nisa The Women) ordains. Inspite of equality of rights the classification has been prescribed on rational basis. The husband, being the male partner, has also to bear the cost of a wet nurse as provided in Ayat 233 Sura 2 (Al-Baqra The Cow). (XXVIII) There is yet another Injunction of Islam contained in Ayat 8 Sura 76 (Al-Insan) which, while recounting the attributes of believers, signifies that a believer for the love of God alone provides sustenance to the three disadvantaged classes i.e. (i) indigent (ii) orphan and (iii) the captive. By following this commandment the believer is satisfied that he is doing it for the sake 1471 of God alone and no one else and he desires no reward or thanks from any one because he fears the Day of distressful wrath from the side of his Lord. Such believers stand distinct from other believers. The three categories of the needy recipients are also recognized, though the purpose of charity itself was to eradicate poverty. (XXIX) The Holy Book recounts different categories of people (at spiritual level and otherwise) under separate heads:--- (a) The Deaf: (b) The Dumb: (c) The Blind: (d) People of the Ditch: (e) People of the Town: (f) Inmates of the fire: (g) People of the Elephant: (h) People of Rome: (i) People of the cave and inscription: (j) Ibad-ul-Mumineen; Ibad-us-Saleheen, Ibadenal Mukhlassen Ayat 18 Sura 2 Ayat 18 Sura 2 Ayat 18 Sura 2 Ayat 4 Sura 85 Ayat 13 Sura 36 Ayat 17 Sura 68 Ayat 1 Sura 105 Ayat 1 Sura 30 Ayat 9 Sura 18. Ayat 25 Sura 12; Ayat 81, 111, 122, 133; Ayat 10 Sura 66. (XXX) Though each lunar month has a distinct name yet the four months are considered sacred. These sacred months constitute a separate class. Reference Ayat 194 Sura 2 and Ayat .36 of Sura 9. (XXXI) Only two mosques have been reverentially mentioned in Holy Qur'an: Ayat 1 Sura 17 and Ayat 125 Sura 2 as well as Ayat 96 Sura 3. See also Ayat 97 Sura 5 as well as Ayat 29 Sura 22. - (XXXII) The three Mosques namely the Holy Kaaba, the Mosque of Holy Prophet (p.b.u.h.) and the Mosque at Aqsa had acquired a distinctive status as compared to other mosques. Each one of these Mosques is a class unto itself though each mosque is the house of God. 1472 (XXXIII) According to Ayat 25 Sura 4, the punishment of a slave married woman, guilty of adultery, is half the punishment of a free guilty woman. On the other hand the wives of the Holy Prophet (p.b.u.h.) were warned that if any indecency was committed by them the chastisement shall be double the prescribed punishment --- Ayat 30 Sura 30 of the Holy Qur'an. Classification among the wrong doers for the purpose of awarding lesser punishment has also been made. Leniency to members of under-priviledged sections of society is manifest in this Divine rule. Less fortunate social groups will be awarded lesser penalty whereas persons belonging to privileged groups, who had better facilities to lead life according to legal rules will receive exemplary punishment in case of transgression. (XXXIV)Ayat 32 Sura 3 of the Holy Qur'an declares that surely Allah chose Adam and Noah and the descendents of Abraham and the descendents of Imran above the nations. All these references are a pointer to the principle that notwithstanding general equality among human beings, the rule of classification is an established principle of Islamic Jurisprudence. It does not amount to discrimination if Allah selects one human being or one family to spread His Message. H. The concept of ranking persons according to their deedsis familiar to Holy Qur'an. Ayat 19 of Sura 4, Sura al-Ahqaf states: "Of these all have ranks According to their deeds So that Allah may Recompense them for Their deeds. They shall not be wronged". 33. Ayat 10 of Sura 57, (Al-Hadid) declares that those believers, who spent their wealth and took part in fighting before the Victory (conquest of Mecca), cannot be equated (with those who spent their wealth and took part in fighting afterwards). They are higher in rank than those who spent and fought afterwards. 1473 34. Ayaat 95,96 of Sura 4, allude to the higher ranks of believers according to their deeds. Ayat 132 of Sura 6, (Al-An'am) states in very clear terms that every human being is assigned a station according to his deed because Allah is not heedless of what people do. All human beings are equal but, at the same time, each individual is a class in himself. Now we know it as a scientific truth that finger prints of each individual are different. Ayat after Ayat can be quoted to establish that reasonable classification is an accepted principle of Islamic jurisprudence which is as old as the Revelation and the creation of Adam and Eve: But it should not be confused with the equality clause which is a principle of general application in Islamic Fiqh. 35. During the course of arguments on the question of classification of prisoners and the elements of reasonable classification, reference was made to the principle of equality as envisaged in Article 25 Of the Constitution of Islamic Republic of Pakistan particularly clause (2) where the words "discrimination" and "alone" occur. The meaning and scope of the words "discrimination" and "alone" as they occur in clause (2) of Article 25 were discussed in the case 'of Shireen Munir and others versus Government of Punjab reported as PLD 1990 SC 295. Mr. Justice Shafi-ur-Rehman, author of the Judgment at page 309., was pleased to observe as follows:--- "Discriminating against a group or an individual implies making an adverse distinction with regard to same benefit, advantage or facility. All pervasive nature of this constitutional provision is self evident. In interpreting Constitution and also in giving effect to the various legislative measures, one distinction has to be consistently kept in view and it is that classification based on reasonable considerations is permissible and not violative of the principle. This aspect of the matter was dealt with in a case in the Indian Jurisdiction in Kathi Raning Rawat v. State of Saurashtra (AIR 1952 SC 123) in the judgment of the Chief Justice in the following words:--- "Discrimination thus involves an element of unfavourable bias and it is in that sense that the expression has to be understood in this context. If such bias is disclosed and is based on any of the grounds mentioned in the Articles it may well be that the statute will, without more, incur condemnation as violating a specific constitutional prohibition unless it is saved by one or other of the provisos to those articles. But the position under Article 14 is different. Equal protection claims under that article are examined with the presumption that the State action is reasonable and justified. This presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity, possess in making laws operating differently as regards different groups of persons in order to give effect to its policies". 1474 36. This report was also considered in the case of I. A. Sherwani which is proposed to be discussed shortly. 37. The question of grant of class "A" or "B" to a prisoner had come before the Honourable Supreme Court of Pakistan in the case of Abdul Rashid versus The State reported as 1980 SCMR 632. It was held that no justiciable right vests in a prisoner to seek better class even though he is shown as eligible to better class of prisoners. 38. The case of Waheed Akhtar versus Superintendent Camp Jail, Lahore and another, reported as PLD 1980 Lah. 131, a judgment delivered by Justice Aftab Hussain, as his Lordship then was, pertained to rules 243, 246, 248 and 250 of the Prison Rules. It was held that the Prisons Rules have made different provisions for convicted prisoners and under-trial prisoners. 39. Reference may also be made to the case of Pakistan Petroleum Workers Union v. Ministry of Interior reported as 1991 CLC 13 wherein this history of concept of "Equality before law" as it occurs in Article 25 of the Constitution has been traced in the following terms:--- "This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and practised in all the civilized world. It finds recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitution of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According to the jurists term "equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In my humble view, the concept of both terms "equality before law" and equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of "equal protection of the law" was for the first time given and firmly practised by the Holy Prophet (p.b.u.h.). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, declaration of Human Rights and the theory of Rule of law, enunciated by the Western Jurists. The last Sermon of the Holy Prophet (p.b.u.h.) is a landmark in the history of mankind which recognizes the 1475 inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference. The blood revenges of the days of ignorance are remitted... all interest and usurious dues accruing from the times of ignorance stand wiped out. " O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours): Verily you will soon meet your Lord and you will be held answerable for your action". 40. This classification helps the jail officials in keeping different categories of prisoners in separate cells. This type of classification is based upon the status of the prisoner and has no nexus with the nature of offence complained of. This classification is categorized as "A", "B" and "C" class as stipulated in Rule 242 of the Pakistan Prisons Rules. The prisons too have been classified. Chapter 2, rule 4 through rule 9 of the Pakistan Prisons Rules, 1978 deals with classification of Prisons into four categories: The Central Prisons; Special Prisons, District Prisons and Sub-Jail. There is also the category of a Female Prison which is located in Multan. 41. We expected that each and every provision of prison discipline, challenged before us, would be supported by reference to a distinct injunction of Islam. During the course of arguments learned counsel for Parties relied upon a few very well known verses of Holy Qur'an and two or three traditions of the Holy Prophet (p.b.u.h.). In order to fully appreciate the issues involved in the controversy we have detailed in this Judgment various rules relating to classification of prisoners because this issue is not as simple as it was given out at the time these petitions were filed in this Court. The question of classification of prisoners as well as the prisons is very much linked with the question of security and safety of the prisons, prisoners and prison staff. The prison rules cover the entire discipline including the management and supervision of prison houses apart from maintenance of peaceful atmosphere as well as law and order situation within the prison precincts in addition to health and cleanliness facilities,, food requirements, technical and educational training of prisoner population, the regular outward and inward flow of prisoners for attendance in the trial courts and a host of other factors obtaining at the spot. This aspect also explains the reason for maintaining division and classification among the prison population. The courts are not required to hunt for the reasonableness of each individual provision of law. There is a general presumption of laws having been made validly. Suffice it to say that the entire law on a given subject has to be seen as one integrated whole to cater to social requirement in a particular chapter of human life. 1476 42. In response to a Court question, learned counsel for the petitioner frankly conceded that there was no prison system in Mecca and Madina during the time of Holy Prophet (p.b.u.h.). The words Sijan i.e. prison, Aseer i.e. a prisoner, Hubs i.e. restraint and Mask i.e. to confine, are words of Arabic language. The Holy Qur'an used the then current words Sijan, Aseer, Mask and Habs as part of the erstwhile system of administration of justice. There are no verses of Holy Qur'an or traditions of Holy Prophet (p.b.u.h.) to provide extensive guidelines on different chapters of prison discipline which could become the basis on which the existing prison legislation could have rested. There are certain injunctions of Islam, of general import, which have relevance with administration of justice, human dignity and human welfare. However the specific Injunctions advanced by the petitioners on these issues will be considered. 43. In the case of Balochistan Bar Association versus Government of Balochistan cited as PLD-1991 Quetta 7, the Civil Law (Special Procedure) Ordinance I of 1968 and Criminal Law Special Provisions of Ordinance II of 1968 were declared to be void as being inconsistent with Articles 25, 2A and 175(3) of the Constitution. The Court came to the conclusion that the said Ordinances gave unbridled, unfettered and unlimited powers to apply or withdraw the provisions of the Ordinance in any area of the Province without any rational basis and as such discriminated amongst the people or class of people living in the like circumstances. The application of Ordinance was neither universal nor uniform and it had been left entirely to the whims and caprice of the Government to decide, without any rational basis, to withdraw the Ordinance or re-apply the same in any area in a most subjective manner. It was held that this type of classification was neither intelligible nor reasonable nor it was discernible and thus offended Articles 4 and 25 of the Constitution. This case went into appeal which was decided as Government of Balochistan versus Aziz Ullah Memon and 6 others reported as PLD 1993 SC 341. The Apex Court was pleased to confirm the Judgment of the Quetta High Court reported as PLD 1991 Quetta page 7. The apex Court was pleased to re-affirm the principles enunciated in the case of I.A. Sherwani. The Supreme Court while referring to the case of F.B. Ali reported as PLD 1975 SC 506, observed that the principle laid down in Waris Meah's case was that if the Foreign Exchange Regulation Act had set up a Tribunal of exclusive jurisdiction, with a procedure different from the Code of Criminal Procedure, the challenge would not succeed as the offences under, the Foreign Exchange Regulation could validly and reasonably be considered a different class from the offences under the ordinary law. It was further observed that Fauji Foundation case reported as PLD 1983 SC 457, ruled that legislation in regard to an individual can be made provided it is not discriminatory. The Honourable Judges were pleased to hold that although class legislation was forbidden, yet reasonable classification for the purpose of legislation was permissible. Classification is allowed in the legal domain provided the classification is founded on intelligible differentia. There should be a nexus between the classification and the objects of the Act. This principle symbolizes that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to- be struck down. If the 1477 law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate the equality class. Thus the substantive and the procedural law and action taken under it can be challenged as violative of Articles 8 and 25". 44. In the case of I. A. Sherwani and others versus Government of Pakistan reported as 1991 SCMR 1041, the provisions contained in Article 25 of the Constitution came under review of the apex Court. It was observed therein that clause (1) of Article 25 enshrines the basic concept of religion of Islam, which is now known as the golden principle of Modern Jurisprudence. This principle enjoins that all citizens are equal before law and are entitled to equal protection of law. The apex court, after reviewing eleven judicial pronouncements from Pakistan and Indian jurisdiction, was pleased to deduce, formulate and enumerate the following seven principles with regard, to equal protection of law and reasonableness of classification: (i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii) That reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii) That different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial 'standings, and persons accused of heinous crimes; (iv) That no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances may be unreasonable in the other set of circumstances; (v) That a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25; 1478 (vi) That equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii) That in order to make a classification reasonable, it should be based: (a) On an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; (b) That the differentia must have rational nexus to the object sought to be achieved by such classification. 45. Syed Shabbar Raza Rizvi as his lordship then was, in his Book on the Constitution of Islamic Republic of Pakistan, while commenting on Article 25 _made a reference to a passage from V.N. Shukla's Constitution of India, 7th Edition wherein the learned author had formulated certain principles as regards the question of classification, based upon various judgments of Indian Supreme Court, delivered under Article 14 of Indian Constitution, which is counterpart of section 25 of the Constitution of Pakistan. The Principles enunciated therein are as follows: (a) A law may be constitutional even though it relates to a single individual if, on account of some special circumstances, or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. (b) There is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The person, therefore, who pleads that Article 25, has been violated, must make out that not only has he been treated differently from others but he has been so treated from persons similarly circumstanced without any reasonable basis and such differential treatment has been unjustifiably made. However, it is extremely hazardous to decide the question of the constitutional validity of a provision on the basis of the supposed existence of 1479 facts by raising a presumption. Presumptions are resorted to when the matter does not admit of direct proof or when there is some practical difficulty to produce evidence to prove a particular fact; (c) It must be presumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based on adequate grounds; (d) The Legislature is free to recognize the degrees of harm and may confine its restriction to those cases where the need is deemed to be the clearest; (e) In order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; (f) While good faith and knowledge of the existing conditions on the part of the Legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the Court on which the classification may reasonably be regarded as based, the presumption of the constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (g) A classification need not be scientifically perfect or logically complete; (h) The validity of a rule has to be judged by assessing its overall effect and not by picking up exceptional cases. What the Court has to see is whether the classification made is a just one taking all aspects into consideration. 1480 46. Reference may also be made to the case of Ghulam Mustafa Insari and 48 others versus Government of Punjab and others reported as 2004 SCMR 1903 wherein the interpretation of Article 25 cropped up for consideration. The seven principles enunciated in the case of I.A. Sherwani were reiterated and it was further held that:--- " .:.:.. the right relating to the equality of citizens was not violated, if the discrimination proceeded on a rational classification, having relevance to the underlying object of the legislation." "……..that the principle of equality did not mean that every law must have universal application to all persons who were not by nature, attainment or circumstances in the same position. The varying needs of different classes of persons required different treatment. Classification was the recognition of the relations, and, in making it, a legislature must be allowed wide latitude of discretion and judgment." "………the Courts did not expect from legislature a "scientific accuracy in classification adopted". "……..that the State was empowered to distinguish and classify persons or things for the purpose of legislation and that a classification need not be scientifically perfect or logically complete." "………..that the guiding principle of equality was that all persons and things similarly circumstanced would be treated alike both in respect of privileges conferred and liabilities imposed." 47. As regards the vires of a statute, the Honourable Judges of the Apex Court in this very case also held (at page 1921) that the courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is ex-facie discriminatory or capable of discriminatory application 1481 and otherwise clearly violative of any provision of the Constitution. At page 1923 the learned author judge was pleased to hold further that the Court cannot question the wisdom of the legislature merely on the ground that a provision of law may work, some inconvenience or hardship in the case of some persons unless it is violative of a constitutional provision including fundamental rights and further that the vires of a legislative measure including an Ordinance are not to be examined with reference to any idea or philosophy extraneous to the Constitution but the Constitutional provisions themselves as-held in Liaqat Hussains's case PLD 1999 SC 504. The cases of Malik Khizar Hayat PLD 1956 F.0 200 and Prafulla Kumar Das AIR 2003 SC 4506 (2003) 11 SCC 614. Reference in the case of Ghulam Mustafa Ansari was made to the case of Mehreen Zaibun Nisa versus Land Commissioner, Multan and others PLD 1975 SC 397; The Province of East Pakistan and others versus Sirajul Haq Patwari and others PLD 1966 SC 854, Inam-ur-Rehman versus Federation of Pakistan and others, 1992 SCMR 563 and Darbar Patiala through S. Ajmer Singh, Managing Director of Patiala State Bank, Patiala versus Firm Narain Das Gulab Singh of Jagadhri through Kr. Kishore Saren and others AIR 1944 Lah. 302. 48. In the case of Liaqat Hussain versus Federation of Pakistan PLD 1999 Supreme Court 504 at page 591, the author Judge observed that a validly enacted law cannot be struck down on the grounds of mala fide. On page 632 it was further observed that no mala fide can be attributed to the Parliament as it is a sovereign body to legislate on any subject, for which it has been empowered under the Constitution to legislate. The Court, it was further observed, cannot strike down a statute on the ground of mala fide, but the same can be struck down on the ground that it is violative of a Constitutional provision. The Honourable Judge made a reference to the case of Mehr Zulfiqar Ali Babu and others versus Government of Punjab and others reported as PLD 1997 SC 11. 49. In the case of Muhammad Ramzan and three others versus Government of Pakistan, a case decided by a Division Bench of the Lahore High Court, Lahore reported as 2004 YLR 1856, the issue of reasonable classification came up for discussion. Honourable Judges after reviewing the case law, adverted again to the principle enunciated in the case of I.A. Sherwani and came to the conclusion that different laws could validly be enacted for different sexes, persons and different gaups and persons having different status or financial standing etc. It was further held that the Court is not required to run behind the wisdom of the legislature or to challenge or discard the same. The courts of law are under obligation to give effect to the laws as they stand. The controversy in this case arose out of the point whether the Punjab Local Government Ordinance, 2001 was ultra vires the constitutional provisions contained in .Articles 8 and 25 inasmuch as it creates two classes of persons, one coming to their office through a direct vote of the electors of their respective constituency and the other reaching their office through an indirect vote. The court held that the law was not discriminatory because discrimination has to be within one group or classification. 1482 50. Reference may also be made to the case of Pakistan Petroleum Workers Union v. Ministry of Interior reported as 1991 CLC 13 wherein the history of concept of "Equality before Law" as it occurs in Article 25 of the Constitution has been traced in the following terms:-- "This Article guarantees to all citizens of Pakistan equality before law and equal protection of law. These rights guaranteed by the Constitution are now universally applied and practised in the civilized world. It finds recognition in Universal Declaration of Human Rights and the Covenant on Human Rights, 1950. An examination of Constitutions of various countries will show that the written Constitutions have invariably used the expression "equality before law" but "equal protection of law" has not so commonly been used. According, to the jurists term "equal protection of law" finds it origin in the 14th Amendment of the American Constitution. In my humble view, the concept of both terms "equality before law" and equal protection of law" is not of so recent origin in jurisprudence as described by various authors and jurists. From a comparative study of the legal history and jurisprudence we find that the concept of equality before law and principles of "equal protection of the law" were for the first time given and firmly practiced by the Holy Prophet (p.b.u.h.). Therefore, it can be traced as far back as 1400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, declaration of Human Rights and the theory of Rifle of law, enunciated by the Western Jurists. The Last Sermon of the Holy Prophet (p.b.u.h.) is a landmark in the history of mankind which recognizes the inalienable Rights of a man conferred by Islam which are now known as Fundamental Rights. The following extracts from the farewell Sermon can be reproduced for reference. The blood revenges o f th e days of ignorance are remitted... all interest and usurious dues accruing from the times of ignorance stand wiped out. " O people, verily your blood, your property and your honour are sacred and inviolable until you appear before your Lord, as the sacred inviolability of this day of yours, this month of yours and this very town (of yours). Verily you will soon meet your Lord and you will be held answerable for your action." 51. The concept of reasonable restriction, as it emerged as a consequence of interpretation of constitutional provisions including Article 25 enshrined in Chapter I of Part II of the Constitution, is not alien to Islamic teachings. Right of life on the one hand, is respected to such an extent that the killing of one person, without legal sanction, is declared in Ayat 32 Sura 5 (Al-Maida: The Food) of Holy Qur'an, equal to the killing of entire humanity, but we find that the law of Qisas is also recognized by Holy Qur'an. Similarly as against the right that no one shall cause injury to human body the principle of retaliation permits causing similar injury to the offender. Reference Ayaat 178, 179 & 194 of Sura 2, (Al1483 Baqra) and Ayat 45 of Sura 5, (Al-Maida). 52. In this connection it might as well be stated that the concept of human dignity received legal recognition for the first time when Ayat 70 of Sura 17, Sura Bani Israil was revealed. It declared:--- "And surely WE have conferred dignity on the children of Adam, and WE carry them in the land and in the sea, and WE have given them of the good things, and WE have made them to excel, by a high degree of excellence, most of those whom WE have created". But in spite of this honour, there are people who commit crimes and sins. These are the persons who choose to tear as under the robe of dignity and consequently merit a different treatment as a separate class of criminals/sinners and transgressors against accepted norms. 53. Every human being enjoys the right and freedom of expression but Islamic Injunctions put a limit on the exercise of this fundamental right because an individual is not authorized to violate similar rights of others on the pretext of realization of his own basic rights. The violators are however a different class altogether. Following Injunctions of Holy Qur'an are being cited in support of the proposition that even fundamental rights are not absolute in the eyes of law:-- (1) There is no compulsion in Deen (loosely translated as religion): Ayat 256 of Sura 2 (Al-Baqra). It clearly means that a person is free to choose or reject a faith and he has no right to abuse or ridicule the beliefs of others because the others have a similar right. (2) Every person has a right to marry and raise a family but societies and religion prohibits incest. Ayat 23 Sura 04 (An-Nisa). (3) The right of ownership over wealth is absolute but Allah and His Apostle, PBUH, impose obligatory taxes upon the believers Zakat, Khums, Ushar, Sadaqaat etc. Ayat 60 Sura 9; Ayat 41 Sura 8, and Ayat 43 Sura 2. 1484 54. We are conscious of the fact that under Article 8(I) of the Constitution any law, custom or usage having the force of law, in so far as it is inconsistent with the rights guaranteed in Chapter 1 of the Constitution, shall to the extent of such inconsistency be void. Clause (2) of Article 8 stipulates that the State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to that extent be void. The petitioners in the Shariat Petitions and Shariat Miscellaneous Applications did not Opt to challenge the various provisions of prison laws in the High Court or Supreme Court of Pakistan on the authority of Article 08 which means very clearly that the petitioners did not consider the impugned provisions to be violative of the fundamental rights as enshrined in Chapter I of Part-II of the Constitution. Needless to say that all the rights guaranteed by the Constitution are firmly based upon various Injunctions of Islam. The existing provisions of prison legislative instruments are therefore presumed to be valid', legal and not violative of the constitutional guarantees unless proved to the contrary. There is a presumption of constitutionality attached to every legislative instrument. The Supreme Court of Pakistan in the case of Ghulam Mustafa Insari and 48 others versus Government of the Punjab and others reported as 2004 SCMR 1903 at page 1921, after referring to the cases of:-- (a) East Pakistan and others v. Sirajul Haq Patwari and others reported as PLD 1966 SC 854; (b) Inamur Rehman v. Federation of Pakistan and others reported as 1992 SCMR 563; and (c) Darbar Patiala through S. Ajmer Singh v. Firm Narain Das reported as AIR 1944 Lah. 302; observed that the Courts generally lean towards upholding the constitutionality of a statute rather than destroy it unless such a statute is, ex-facie discriminatory or capable of discriminatory application and otherwise clearly violative of any provision of the Constitution. 55. It will be useful to mention a few more reports on the question of equality before law, reasonable classification and discrimination in order to make the proposition clear. In the case of Zohra and 5 others versus the Government of Singh, Health Department reported as PLD 1996 Kai. 1, the Full Bench of the Court held that:-- 1485 "The basic or fundamental rule is that all persons, under like circumstances and conditions, shall be treated alike both in privileges conferred and in liabilities imposed. Thus, discrimination between persons or classes or persons similarly situated or circumstances is prohibited or, in other words, class legislation is forbidden. It follows that the rule does not prohibit different laws or different treatment for those differently circumstances and the State has the power to distinguish or classify persons or things and to make laws or rules applicable only, to the persons or things falling within the particular class. However, a classification which is arbitrary or capricious and not founded on any rational basis or which has no rational nexus with the object sought to be achieved by the law or the rules is no classification. It must, therefore, be reasonable and rest upon a difference which is real as distinguished from one which is seeming, specious or fanciful. Thus, classification would be reasonable and valid: (i) if it is based on intelligible differentia which distinguishes persons or things that are grouped together from those that have been left out; and (ii) if it has rational nexus with the object sought to be achieved by it. It was further held that "Intelligible differentia" means "an attribute by which a species is distinguished from all other species of the same genus, or, a distinguishing mark". 56. In the case of 7-UP Manufacturers versus Federation of Pakistan and others reported as 1994 CLC 1251, an Honourable Judge of the Lahore High Court observed that "equality clause in Article 25 of Constitution of Pakistan, did not forbid reasonable classification, but classification must not be only reasonable and rational, but it should also be based upon intelligent differentia and must have nexus to the purpose for which law was enacted--- All persons who were similarly placed in similar circumstances, must be treated equally". 57. In the case of Abdul Farid versus N.E.D. University of Engineering and Technology, Karachi and another reported as 2001 CLC 347, while considering the scope of the concept of reasonable classification, it was held that all persons cannot be alike in all circumstances and the concept of reasonable classification is implicit in .Article 25 of the 'Constitution. It was further held that where the 1486 classification is rational and based upon intelligible differentia bearing a direct nexus with the object of law, such classification passes the test of constitutionality. 58. In the case of Pakistan Burmah Shell Limited and another versus Federation of Pakistan reported as 1998 PTD 1804 the Full Bench at pages 1860 and 1861 referred to the following observation made in the case of F.B.. Ali as regards equal protection of law and reasonable classification:---- "Equal protection of the laws does not mean that every citizen, no matter what his condition, must be treated in the same manner. The phrase `equal protection' of the laws means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other class of persons in like circumstances in respect of their life, liberty, property or pursuits of happiness. This only means that persons, similarly situated or in similar circumstances, will be treated in the same manner. Besides this, all law implies classification, for, when it applies to a set of circumstances, it creates thereby a class and equal protection means that this classification should be reasonable. To justify the validity of a classification, it must be shown that it is based on reasonable distinctions or that it is on reasonable basis and rests on a real or substantial difference or distinction. Thus, different laws can validly be made for different sexes, for persons in different age groups, e.g. minors or very old people; different taxes may be levied from different classes of persons on the basis of their ability to pay. Similarly, compensation for properties acquired may be paid at different rates to different categories of owners. Such differentiation may also be made on the basis of occupations or privileges or the special needs of a particular locality or a particular community. Indeed, the bulk of the special laws made to meet special situations come within this category". 59. In the case of Messrs Shadman Cotton Mills Limited versus Federation of Pakistan reported as 2001 PTD 411, the principle of equality came under discussion and it was held that all persons placed in similar circumstances must be treated alike and the reasonable classification must be based on reasonable grounds in a particular set of circumstances but it must not offend the spirit of Article 25 of the Constitution. The Honourable Judge further observed that persons equally placed must be treated alike in the matter of privileges and liabilities under the rule of equal protection of law. 60. Again in the case of Pattoki Sugar Mills Limited versus Province of Punjab and others reported as 2001 PTD 3415 a learned Single Bench of the Lahore High Court observed that reasonable classification was not prohibited by the Constitution and the same requires that all persons similarly placed should be 1487 treated alike. 61. In the case of Muhammad Safdar versus Government of Sindh and others reported as 2001 PLC 692 the Supreme Court of Pakistan considered the concept of "equal protection of law" And "reasonable classification" and proceed to enunciate 7 principles applicable to the equality clause of the Constitution. These 7 points have already been considered above in the case of I.A. Sherwani reported as 1991 SCMR 1041. 62. On the question of equal protection of law, discrimination and reasonable classification the following cases may also be seen in addition to those mentioned above: (1) Bashir Ahmed v. Chaudhry Ghulam Sarwar Noor MIC, Lahore and 3 others 2002 CLC 139 (Lahore High Court, Lahore). (2) Federation of Pakistan and others v. Mrs. Samra Shakeel 2001 PTD 3919 (Supreme Court). (3) Safdar v. Government of Sindh and others 2001 SCMR 1231. (4) Amanullah versus Secretary to Government of N.-W.F.P. and 5 others PLD 2003 Pesh. 14. (5) Muhammad Akram & others versus Selection Committee for Admission in First Year M.B.,B.S. Bolan Medical College and others 2003 CLC 18 (Quetta). (6) Shaikh Aijazur Rehman v. The State through Director-General (NAB) and another PLD 2006 Kar. 629. 1488 (7) Shaikh Abdul Sattar Lasi v. Federation of Pakistan 2006 CLD 18 (Quetta High Court). (8) Saleem Raza and 31 others versus The State PLD 2007 Karachi 139 (9) Dr. Munir Ahmad and 37 others v. Government of Pakistan Finance Division and 4 others 2007 CLC 107. (10) Ch. Nazir Ahmad and 2 others v. Province of Punjab 2007 PLC (C.S.) 285. (11) Miss Shazia Batool v. Government of Balochistan and others.2007 SCMR 410. 63. In a recent case of Ibrahim Flour and General Mills District Sheikhupura versus Government of Punjab reported as PLD 2008 Lah. 184 a learned Single Bench of the Lahore High Court after reviewing three reported cases came to the conclusion that the act of omission on the part of authorities in ignoring the petitioner mill owner, for the grant of wheat quota, was un-lawful, discriminatory and of no legal effect. It was also observed that Government is not supposed to discriminate between citizens, who are placed in similar circumstances and functionaries of the Government cannot be allowed to exercise discretion on their whims, sweet will or in a manner it pleased them. It was further held the supply of wheat quota to one set of mill owners and its refusal to petitioners was "sheer discrimination, conceived and tainted with defect of naked and unbridled discretion." 64. Dr. Muhammad Aslam Khaki, learned counsel appearing in various Shariat Petitions before us, submitted a research note in Shariat Petition No.62/I of 1992 in which the following points were raised with reference to the Islamic teachings: (a) Islam came basically to establish justice and all its injunctions are directed towards the achievement of this particular goal; 1489 (b) Ayat 25 Sura 57, (Al-Hadeed) is to the effect that the Prophets were commissioned with Book and Balance so that people stand for justice; (c) Ayat 58, Sura 4 (An-Nisa) commands that trusts be handed over to the deserving and justice should be done; (d) Ayat 13, Sura 49 (Al-Hujrat) informs us that human beings, created from a single pair, were then divided in tribes and nations so that people may know each other; (e) Ayat 90, Sura 16, (Al-Nahl) indicates that Allah commands the doing of Adl (Justice) and Ehsan (Equity). (f) Ayat 115, Sura 6, (Al-Anaam) tells us that the Word of God finds fulfillment in Truth and Justice; (g) Ayat 2, Sura 24, (An-Noor) shows that tenderness for culprit should not affect administration of criminal justice; (h) The element of equality between human beings has been commanded by Holy Prophet (p.b.u.h.) as declared in Khutba Hujjat-al Wida. Legal provision which permit grouping of the prisoners in category "A", "B" and "C" are hence discriminatory. (i) The cause of fall of nations is relatable to the fact that rich/influential culprits were let off while the penal provisions were imposed only upon those who belonged to poor section of society. It was therefore waged that the element of discrimination' is ultra vires the Injunctions of Islam. The other well known tradition of the Holy Prophet (p.b.u.h.) that even if his daughter Fatima were to commit a crime she would not escape the requisite penalty. This tradition was relied upon to show that Islamic Injunctions do not countenance inequality and discrimination. 1490 (j) A quotation from the letter of Hazrat Umar (R.A) addressed to Abdu Musa Ashari, directing him to hold fast to the equality between the litigating parties even when he addresses them because the influential may not start expecting more and the weak should not get disappointed. 65. All these references, according to the learned counsel, are a pointer towards the principle that justice must prevail. It is contended that a believer is not supposed to show concession or facility in the punishment either on account of the social status or superior standard or the living style of the convict. Consequently it was argued that classification of prisoners into class "A", "B" and "C" on the basis of social or economic status, profession, academic qualification was against the basic concept of justice and fair play and hence contrary to the Injunctions of Islam. 66. It is not possible to agree with the interpretation put forward by learned counsel. On his own showing, the opulent and educated persons on conviction get "A" or "B" class which means that as far as award of punishments by the courts in Pakistan is concerned there is no difference between the wealthy and the poor or the well-read or uneducated. The only objection is relatable to the possible facilities available during the period of incarceration awarded as a result of the conclusion of trial. No Injunction of Islam was relied upon by learned counsel to show that the facilities admissible to the prison population belonging to different classes of society under the Prison Rules must be uniform in all circumstances. It is well nigh impossible to treat all the categories of prisoners alike. Children, women, suspects, political detenues, hardened criminals, repeaters, condemned prisoners, ailing persons, prisoners who are assigned the duty of teaching or cooking and serving in different capacities in the prison houses and persons belonging to terrorist groups or an enemy country or these prisoners who are foreign agents have to be treated and accommodated separately with different standards of surveillance. These are practical difficulties and cannot be ignored under any circumstances. 67. The question of the imprisonment of Syedna Yousaf, as narrated in Holy Qur'an, had also crept in during arguments. From the story of Syedna Yousaf, as reported in Holy Qur'an, the element of imprisonment in a prison house under the then prevailing Code was an alternate mode of punishment. Ayat 25 of Sura 12 of Holy Qur'an states that the complaining lady demanded imprisonment or grievous chastisement as the mode of administering justice. It means that the erstwhile customary law permitted detention in prison as an alternative to the corporal punishment. The prison cell could also be as a place of sojourn for the prisoners awaiting judicial pronouncement of some other category of punishment. The story of Syedna Yousaf A.S. in relation to imprisonment is a clear pointer to the erstwhile customary code wherein the man in authority had the discretion to award lesser punishment by way of 1491 imprisonment for a fixed period instead of imposing a painful chastisement upon the accused. The narrative also establishes that communication between prisoners was not prohibited. Notwithstanding his imprisonment Syedna Yousaf A.S. enjoyed certain privileges. He would respond to the incisive questions of the inmates and preach Tawheed. He would also interpret their dreams. The Ayaat relating to the imprisonment of Syedna Yousaf A.S. do not suggest, detailed provision for a Jail Manual which can be instantly enforced. We can seek guidance after pondering over that part of the story which deals exclusively with prisons and prisoners. 68. The contention worth advancing at the bar, under the circumstances, should be for providing opportunities for better educational and medical facilities to the less fortunate prisoners, subject of course to the availability of resources. The proper forum however, for agitating all these demands would of course be the political front from where legislation through Assemblies can be initiated. 69. However, it is worth mentioning that the award of quantum of punishment under Taazir depends purely upon the discretion of judges and our judges do not exercise judicial discretion arbitrarily. This is an accepted position in the administration of justice. It was also not urged before us by learned counsel for petitioners that it amounted to discrimination that varying quantum of sentences were awarded to different accused or different categories the punishment i.e. simple or rigorous imprisonment or imprisonment of either description, or with or without fine, or a direction to pay compensation to the aggrieved person from the fine realized from the accused or additional term of imprisonment in case of non payment of fine was imposed to different convicts. This division in the award of penalties to different accused persons facing trials under the same charge, appears to have been accepted and has not be challenged by the petitioners as an instance of Discrimination. It has not been considered discriminatory. Notwithstanding the discussion on the issue of classification it might as well be stated that every case depends upon the peculiar facts of that particular cause. However the basic principle of Islamic jurisprudence is that reasonable Classification is permissible but Discrimination has to be eschewed because discrimination violates the well known tradition of Holy Prophet (p.b.u.h.) proclaimed in the Khutba Hujjat-ul-Wida. 70. The primary concern of Islamic jurisprudence is the administration of even-handed justice. The prevailing prison system, regretfully, does not envision rectification, reform, reformation, or rehabilitation of the convict. This deficiency is a matter of fundamental importance for the managers of prison system because the prison population till date has not received considerate attention. The prisons are of course necessary to save the society from the wrong doings of nasty persons. There are other considerations as well for maintaining prison system but that does not mean that human beings should not be saved. A prisoner should not be left alone to ruin himself nor should he be abandoned as 1492 a total wreck. He has to be rescued and supported at emotional level. The message of hope, as given in Ayat 53 Sura 39, has to be inculcated in him. The Ayat proclaims:- "Say: O My servants! Those of you who have Acted extravagantly Against their own souls (against themselves), do not Despair of the Mercy of Allah: Surely Allah forgives the Faults altogether: Surely He is forgiving, The Merciful. The mercy and love of Allah finds its true expression in this Divine Declaration. The world community had become conscious some time back of the deficiencies and the inherent and vital defects in their prison disciplines but they hard to adopt an objective attitude. The system was brought under sympathetic scrutiny with the result that the conditions of prisons, the world over, are registering an improvement due to the efforts of human friendly associations. The dungeons of old times are now being replaced by correctional and rehabilitation centres. 71. The classification and categorization of prisoners on the basis of age, sex, nature of accusation, past conduct, social and educational status, preventive or political detention, casual and habitual offenders, convicted and under-trials prisoners, civil and criminal detenues, and further division into "A", "B" and "C" category is not as simple as originally perceived by the petitioners. The number of "A" and "B" category of prisoners at present in our prisons would show that classification is hardly a problem in the prison system. Problem lies elsewhere. It is the other section of prison discipline which needs basic amendments. The Prison Manual had a rational basis then when the prison discipline was visualized by foreign masters on the strength of their own experience in British Jails. A change in the prison discipline as well as in our outlook, in view of changed situation after 15 August 1947, is certainly the dire need of 1493 the time. It must be realized that unless a ' new system based upon egalitarian concept is introduced, not much can be achieved. 72. It has been reported that Jarir-bil-Abdullah was treated with special respect when he first appeared before the Holy Prophet (p.b.u.h.). On inquiry as to the reason why special courtesy was shown to him, the Holy Prophet (p.b.u.h.) remarked that when a, respectable person from any tribe comes to you, pay him due respect and honour him. (Reported in Sunan Abi Daud and Sunan Ibn-e-Maja). 73. In another tradition reported in Kitab-ul-Kuna-Aldaulabi that Abdur Rehman along with one hundred persons went to see the Holy Prophet (p.b.u.h.) who, in order to honour the leader of the delegation laid down his wrap for him to sit upon. On being asked later about this singular good-will gesture he replied that the leader was a respectable representative of his tribe. Whenever any respectable persons' of any tribe comes to you give him respect and honour, it was again stated by the Holy Prophet (p.b.u.h.). 74. Another tradition is reported from Hazrat Ayesha (R.A) that the Holy Prophet (p.b.u.h.) summoned Saad bin Maaz in connection with the decision of a case pertaining to the Jews of Madina. On his arrival the Holy Prophet (p.b.u.h.) asked the Ansaar to stand up as a mark of respect for Saad bin Maaz. He is reported to have remarked that due respect should be paid to the head of the tribe. This tradition is reported as Sunan Abi Daud as Tradition No.5215-5216. 75. There is yet another tradition of Holy Prophet (p.b.u.h.) reported in Sunan Abi Daud as tradition No.4842 which says that the people should be treated in accordance with their social status. 76. These traditions do not militate against the principle of equality because everybody is worthy of respect. These traditions only go to show that extra respect has to be shown to certain categories of persons. For example every man and woman is worthy of respect but the parents enjoy additional advantage over every other man and woman of the world. Extra respect for the parents or for the elders of the family or for the teacher does not mean that the principle of equity has been sacrified. 77. At the end it may be stated that the position of better class prisoners in 32 prisons of the Punjab, as 1494 on 31.12.2008, was as follows:-- Total number of Prisoners: A class Male under-trial prisoners B class Male under-trial prisoners B class Female under-trial prisoners B class Male convicts B class condemned prisoners 59965 3 62 1 61 123 It means that out of 59965 prisoners only 250 prisoners are better class prisoners at present. 78. At the risk of repetition it may be stated that Rules 151 and 152 Chapter 7 classify prisoners into at least 12 classes namely those under sentence of death, long term prisoners, juvenile and women prisoners, prisoners detained under the Reformatory Schools Act, 1897 and the Borstal or Children Act, Court Martial prisoners, prisoners whose transfer is necessary to relive over crowding, prisoners with special qualifications whose services are required elsewhere, influential, violent or dangerous prisoners, prisoners whose transfer is necessary in the interest of their health and prisoners whose transfer is necessary or desirable for any other reason, e.g. insecurity of the prison, character of the prisoner, or his having friends or relatives among the staff. This is the recognized classification from the view point of transfer. This is over and above the classification of prisoners contemplated in Chapter 9 of the Prison Rules. The petitioner has apparently accepted all categories of classification of prisoners whether stated in Chapter 7 or Chapter 9 of the Prison Rules or otherwise. He has not opted to challenge classification contained in these chapters. This is not understandable. It is not permissible to blow hot and cold in the same breath in the field of law. 79. In view of preceding discussion on the question of classification Shariat Petition No.62/I of 1992, Shariat Miscellaneous Application No.19/I of 1997 and Shariat Miscellaneous Application No.11/I of 1998 are hereby dismissed. SEGMENT THREE LETTERS AND INTERVIEWS 1495 (ISSUE NO.IX) 80. Shariat Miscellaneous Application 16/I of 1997 seeks to challenge Rule 546 of the Pakistan Prison Rules. It forms part of Chapter 22 entitled Letters and Interviews. It envisages facilities to be provided to new entrants in the prison including provisions for reading, writing and meeting friends and relatives. It also mentions the number of things that a prisoner can validly receive at the time of interviews. 81. Rule 546 of the Pakistan Prison Rules deals with censorship of fetters delivered to or sent by prisoner. The rule is being reproduced as under:--- Censorship of letters Rule 546---No letter shall be delivered to or sent by a prisoner until it has been examined by the Superintendent or an officer authorized by the Superintendent in this behalf, but no unnecessary delay shall be allowed to occur in its delivery or dispatch. If a letter is written in a language unknown to the examining officer, he shall take steps to get it translated before forwarding it. No letter written in cipher shall be allowed to be sent or received. The Superintendent may withhold any letter which seems to him to be in any way improper or objectionable. The subject matter of letters shall be restricted to private and domestic affairs only. Suspicious looking letters may be exposed to heat or treated in any other suitable manner as a safeguard against unauthorized message written in invisible ink being smuggled in or out of prison. This rule has been objected to in Shariat Miscellaneous Application No.16/I of 1997 by convict Master Ijaz Hussain. The grounds of attack are as follows:--- A. That under Article 19 of the Constitution every citizen is free to write or express himself. B. That the N.-W.F.P. Government has already permitted the prisoners in their province to retain pen and paper with them in the cell. 1496 C. That due to censorship restriction, the prisoners are precluded from informing the higher authorities about the excesses of prison administration. A constitutional petition registered as Writ Petition No.4719 of 1995 is stated to be pending -disposal in the Lahore High Court on this very issue. 82. It will be appreciated that no reference to any Injunction of ls!am has been made. The fact that N.W.F.P. Government has allowed prisoners to retain pen and paper in the cell is not relevant to Rule 546. Article 19 of the Constitution no doubt guarantees freedom of speech etc. but it is subject to "any reasonable restriction imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, (commission of) or incitement to an offence". The existence of this Rule regarding compulsory censorship is a definite check against many problems relating to internal security, jail-breaks and other disciplinary matters. As regards the opportunity of sending complaints against prison administration to higher authorities, without being intercepted or censored by prison officials, the prisoners can always put it across when ,a judicial officer visits the Jail in routine once in a month. It is worth while mentioning the incident of Hatib Ibn Abi Balta, who had entrusted a secret letter about the activities of Muslims in the nascent state of Madina, to an old woman for being conveyed safely to the enemies of Islam in Macca. This letter was placed in the tresses of the elderly women. The Holy Prophet (p.b.u.h.) sent Zubair and Miqdad (R.A) to catch that woman at Rauza Kakh. The needful was done and the letter was recovered. Investigation was initiated after recovery of the offensive letter. This incident shows that for the purpose of security the Administration can take steps like checking and censorship. Such a course of action is permissible in Islam. 83. The petitioner had also stated in his petition that a constitutional petition registered as Writ Petition No.4719 of 1995 was pending adjudication before Lahore High Court under its extra-ordinary constitutional jurisdiction. In view of these two reasons namely i) the constitutional allowance to impose reasonable restriction on the right of expression and ii) the pendency of a constitutional petition in the Lahore High Court, Lahore and also due to the reason that no particular Injunction of Islam was shown by the petitioner to have been violated by Rule 546 of the Prison Rules the Shariat Miscellaneous Application No 1611 of 1997 is without force and consequently merits dismissal. SEGMENT FOUR DISCIPLINE AND DAILY ROUTINE. 1497 (ISSUE NO.IX) 84. Rule 690 of Pakistan Prison Rules has also been challenged in Shariat Miscellaneous Application No.16/I of 1997. This rule is part of Chapter 28 entitled Discipline and Daily Routine. The rule is as follows:- "List of Prohibited Articles. Rule 690.---The articles specified or included in any of the descriptions contained in the list annexed to this Rule, shall be deemed to be prohibited articles, within the meaning of Section 42 and clause (12) of Section 45 of the Prisons Act, 1894, unless any such articles shall be--- (a) introduced into any prison. (b) removed from any prison. (c) supplied to any prisoner outside the limits of any prison or (d) received processed or transferred by any prisoner, with the permission of the Superintendent or other officer empowered by him in this behalf. List of Prohibited Articles.-- (1) Spirituous liquors of every description. 1498 (2) All explosives, intoxicating or poisonous substances and chemicals, whether fluid or solid of whatever description. (3) All arms and weapons and articles which are capable of being used as weapons of whatever description. (4) All bullion, metal, coin, jewellery, ornaments, currency notes, securities and articles of value of every description. (5) All books, papers, and printed or written matters and materials and appliances for printing or writing of whatever description. (6) String, ropes, chains, bamboos and all materials which are capable of being 6converted into string or rope or chain, any article to facilitate escape, or implement of any kind; and (7) Wood, bricks, stones and earth of every description. For Sindh Province Only In Rule 690, in the entries against item 5, after the words "and materials" the words "specifically prohibited by the Provincial Government", shall be inserted. The rule under scrutiny enumerates various prohibited articles "within the meaning of section 42 and clause (12) of section 45 of the Prisons Act, 1894". 1499 85. According to item No.5 in the List of Prohibited Articles, all books, papers and printed or written matters and materials and appliances for printing or writing of whatever description are prohibited. The words "all books, papers and printed or written matters" occurring in the first part of item No.5 are obviously repugnant to the Injunctions of Islam. The following Injunctions, to quote just a few, can be cited in support of the contention that prohibition on reading and writing material is palpably ultra vires of the Islamic Injunction. A. Ayat 269 Sura 2, (Al-Baqra) of Holy Qur'an declares:--- He grants wisdom to those Whom He wills; and whoever Is granted wisdom has Indeed been granted much Good. Yet none take heed. B. Ayat 1-5 Sura 96, Sura Alaq, of Holy proclaims:--- Read (recite) in the name of Your Lord Who created, Created human being from a clot, Recite: and your Lord is Most Generous, Who taught by the pen Taught human being what he did not know. 1500 C. Ayat 1, Sura 68, Sura Al-Qalm (The Pen) of Holy Qur'an declares:--- Nun: by the pen and What the scribe writes. D. Repeated references in the Holy Qur'an to the application of intellectual faculties is indicative of the importance of reading and writing (Pen and Book) in Islamic teaching. It is worth considering that the Holy Qur'an describes itself as a Book. The previous revelations were also described as Books. The believers are therefore, under religious obligation to acquire the facility and methodology to read and write otherwise they will not be able to understand and appreciate the Message contained in these Books. At numerous places the Holy Book exhorts the believers to think, ponder, question and assimilate knowledge. Reference Ayat 73, 76 and 171 and 242 of Sura 2. E. Ayat 43 Sura 16, Sura Al-Nahl may also be seen. So ask those who possess. Knowledge if you do not know. A reference to the following traditions of the Holy Prophet (p.b.u.h.) would be useful. F. "To acquire knowledge, go as far as China". This tradition exhorts the believers to cover long distances in the pursuit of knowledge. And we know that the Muslim Jurists and traditionists had undertaken arduous and extensive journeys in different lands with the object of collecting and compiling volumes on traditions and other disciplines of jurisprudence. Such an exercise is not possible without writing material. G. Tirmazi, in the Book of knowledge (Tradition No.2687), records a saying to the effect: "Wisdom is the lost heritage of believers: He (i.e., the believer) is entitled to its acquisition wherever he finds it." The distinction of modern era is that knowledge of varied disciplines is not only being recorded but is being made readily available to students. Right to know is now a fundamental right. 1501 H. The Angels, it is also reported in a tradition, spread their nimble wings beneath the footsteps of scholars who traverse unkind and hazardous distances in search of knowledge. I. Tradition No.1919, appearing in Kitabul Amara, in the Sahih Muslim records: One, who acquired the knowledge/technique of using an arrow and then forgot it, is not one of us. J. Seeking knowledge is obligatory for every Muslim male and female: These traditions have been referred to in earlier part of this judgment. K. Another reason that has weighed with us is that according to Islamic teachings the Divine revelation is purpose-oriented. Muslim Jurists have recognized a few Objectives of Shariah, known as MaqasideShariah. These objectives are in fact guarantees for the betterment of humanity. The five basic principles or the five values/five Maqasid-e-Shariah are as follows:-- (i) Preservation of Deen (Religion) (ii) Preservation of Intellect (iii) Preservation of Life (iv) Preservation of Property and (v) Preservation of Progeny 1502 The second value i.e., preservation of Intellect (Tahafaz-e-Aql) is not possible without education for which reading and writing is the minimum requirement. Consequently any prohibition on reading and writing material would be tantamount to the basic philosophy of Islam. It is a Deen wherein the first word of the first revelation is IQRA i.e., READ. Denial of reading and writing could be a denial of a fundamental injunction of Islam: "Thus does Allah make His commandments manifest and clear for you that you may reflect" Ayat 220 Sura 2 (Al-Baqra) 86. During the course of writing this Judgment we got in touch with Inspector General of Prisons NWFP on the issue of disallowing books, pen and paper for the use of prisoners. He sent us a copy of the Official Gazette of the North-Western Frontier Province dated 4 t h September, 2004, No.4/44-SO (Prisons)HD/2004 whereby amendments in the Prison Rules were effected so as to include Pen/Pencil as item No.32; Books/Papers as item No.33, reasonable number/quantity; but item No.5 of rule 690 has so far not been repealed. Rule 75 in Chapter 4 however permits reading material and pen to the prisoners. In so far as Balochistan and N.-W.F.P. Provinces are concerned the needful has been done but amendment entitling the prisoners to a reasonable quantity of reading and writing material has not been incorporated in Rule 75. This omission is not only violative of Islamic Injunctions relating to acquisition of knowledge at every stage, place, time and age of human life but it is also contrary to the principle of uniformity of laws applicable to same categories of citizens all over the country. It may however be added ' that Article 37 of the Constitution obliges the Government to "promote, with special care, the educational and economic interest of backward class or areas." It also provides that illiteracy should be removed and "free and compulsory secondary education within minimum possible time" be provided. It is hoped that the other provinces will follow suit. However in so far as Rule 690 is concerned we declare the first part of item (5) i.e. the words " All books, papers and printed or written matters and materials and" as violative of Injunctions of, Islam. These words shall cease to have effect from first day of December, 2009. Shariat Miscellaneous Application No.16/I of 1997 has borne fruit. SEGMENT FIVE 1503 WOMEN PRISONERS AND INNOCENT CHILDREN (ISSUE NO.II") 87. Shariat Petition No.61/I of 1992 and Shariat Miscellaneous Application No.10/I of 1998 seek to challenge Rules 307 and 314 of the Pakistan Prison Rules, 1978. These rules find mention in Chapter 13 entitled Women Prisoners and Innocent Children. The text of both the rules is as follows:--- Rule 307.--- (i) Women prisoners with sentences of less than two months shall be confined in the prisons to which they are committed. (ii) When the number of women prisoners confined in any prison is in excess of the available accommodation, the excess number shall ordinarily, irrespective of the length of sentences, be transferred to the Women's Prison. Conditions under which male officers may enter women's enclosure Rule 314.--- A male officer of the prison may enter the women's ward by day only if he has a legitimate duty to attend to, and is accompanied by the woman warder all the time he remains inside such ward or enclosure. Should it be necessary to enter the women's ward at night, the head warder on duty shall call the Deputy Superintendent, and the women warder and these three officers shall enter together. Warders acting as escorts to visitors or officials shall remain outside the enclosure. 88. Learned counsel during the course of arguments relied upon Ayat 151 Sura 6, Sura Al-Anaam of the Holy Qur'an.. Translation of the Ayat reads as under:- "Say: "Come, I will rehearse 1504 What God hath (really) Prohibited you from" : join not Anything as equal with Him; Be good to your parents; Kill not your children On a plea of want; We Provide sustenance for you And for them; - come not Nigh to shameful deeds, Whether open or secret; Take not life, which God Hath made sacred, except By way of justice and law: Thus doth He command you, That ye may learn wisdom." (Emphasis Added) 89. This verse certainly contains five commandments including a moral edict which prohibits all categories of lewdness and all unseemly acts whether open or secret. There is nothing at all either in rules 307 or 314 which violates injunction contained in Ayat 151 quoted above. On the contrary Rule 314 specifically mandates that a male officer can enter only if he has a legitimate duty to attend to, and is accompanied b the Woman Warder all the time he remains inside such ward or enclosure. Such a situation is not conceivably covered by the mischief of the term Fawahish i.e. Lewdness. 90. Care has been taken under the Rules to separate different categories of women prisoners as provided in Rules 308 and 309 which in itself is a healthy provision. Rule 310 provides that where there 1505 is only one woman prisoner in the prison, arrangement shall be made for a women warder to remain with her both by day and night. Similarly Rule 311 totally forbids a woman prisoner leaving or being removed from the women enclosure except on a/ transfer, or b/ her attendance in Court or c/ release from prison or d/ under special order of the Superintendent for any lawful reason. 91. In this connection, it may be pointed out that precautionary measure have already been adopted by introducing sub-sections 5,6, and 7 in section 167 of the Code of Criminal Procedure vide Act XX of 1994 (See PLD 1995 Central Statute part page 231).These provisions which took effect from 15 November, 1994 are being reproduced as under:--- "(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatal or dacoity supported by reasons to be recorded in writing, authorize the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female police officer. (6) The officer incharge of the prison shall make appropriate arrangements for the admission of the investigating police officer into the prison for the purpose of interrogating the accused. (7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation not below the rank of Sub-Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate: Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise." At the most the Government may consider defining the scope of the word "necessary" occurring in Rule 314 of the Prison Rules. The Government may restrict the nocturnal visits only to situation when a 1506 prisoner needs emergent medical care, or there are riotous conditions in the barrack, a calamity like fire or an earthquake has damaged the enclosure. Every such visit of senior officers may by law be required to be recorded and its intimation sent to the Inspector General Prisons next morning telephonically as well as in writing. 92. No other argument was advanced before us to show that these two provisions violate any Injunction of Islam. Consequently Shariat Petition No.61/I of 1992 and Shariat Miscellaneous Application No.10/I of 1998 to the extent of these two rules, are hereby dismissed. SEGMENT SIX THE SUPERINTENDENT OF JAIL (ISSUE NO.IX ) 93. Shariat Petition No.61/I of 1992 seeks to challenge rules 935, 939 of the Pakistan Prisons Rules, 1978 as well. These rules form part of Chapter 39. The text of both the rules is reproduced as under:--- Appointment of Superintendent Rule 935--- Superintendent of Prisons shall be appointed by Government and shall hold their office either alone or in conjunction with any other duties at the discretion of Government. Duties of the Superintendent in general Rule 939.---(i) The over all responsibility for the security and management of the jail shall squarely revolve on the Superintendent. 1507 (ii) Subject to the orders of the Inspector General, the Superintendent shall manage the prison in all matters relating to discipline, labour, expenditure, punishment and control. (iii) Subject to such general or special directions as may be given by the Government, the Superintendent of .a prison other than a Central Prison shall comply with all orders not inconsistent with the Prisons Act, 1894 or any rule thereunder which may be given respecting the prison by the [District Coordination Officer], and shall report to the Inspector General all such orders and the action taken thereon. (iv) Under section 12 of the Prison Act, 1894, the Superintendent is required to keep or cause to be kept, certain specified records and such other records as may be prescribed under Section 59 of the said Act. For Sindh Province only In Rule 939.--- existing sub-rules (i), and (ii) shall be renumbered as sub-rule (ii), (iii) and (iv) of the said rule and before the said sub-rules the following new sub-rule shall be inserted as sub-rule (i), namely:--- "(i) The over-all responsibility for the security and management of the jail shall squarely devolve on the Superintendent." 94. Learned counsel for the applicant neither advanced any precise objection as to the text or terminology of these two rules nor was any Injunction of Islam shown to have been violated by the inclusion of these two provisions in the Rules. In this view of the matter Shariat Petition. No.61/I of 1992, in so far as its challenge relates to rules 935 and 939, is hereby dismissed. SEGMENT SEVEN LADY ASSISTANT SUPERINTENDENT AND 1508 WOMEN WARDERS (ISSUE NO.II & IX) 95. Shariat Petition No.61/I of 1992 seeks to challenge legality of rules 1180, 1181 of the Pakistan Prison Rules 1978. These rules are contained in Chapter 46 entitled Lady Assistant Superintendent and Women Warders. The following two grounds were mentioned in support of the contention that both these rules are violative of the Islamic Injunctions:-- (a) that no woman can be placed in custody of a male not within prohibited degree (NonMahram) (b) that any situation, arrangement, event or system which may possibly lead to immorality or adultery is prohibited by Islam. The text of both the rules is reproduced below:-- Rule 1180.--- (i) In the women's prison there shall be a Lady Assistant Superintendent who shall subject to the control of the Superintendent of the local men's prison, have complete charge of all women prisoners at any time committed to, or detained, in the prison. (ii) All rules, regulations, etc., applicable to Assistant Superintendents as regards appointment, conditions of service and duties, shall mutatis mutandis be applicable to Lady Assistant Superintendent. (iii) The Lady Assistant Superintendent shall be assisted by a staff of women Warders who shall perform duties as laid down in the succeeding rules, subject to the control of the Lady Assistant Superintendent. 1509 Women Warders duties Rule 1181.--- (i) In every other prison where women prisoners' are confined, a woman Warder shall be incharge of the women enclosure. She shall work under the supervision and orders of the Deputy Superintendent and the Superintendent. (ii) The duties of the woman Warders, shall, as regards women prisoner, be similar to those performed, as regards male prisoners, by Warders and Head Warders. All rules, regulations, orders and directions for the time being applicable to such Warders and Head Warders, shall be applicable to women Warders. 96. During the course of arguments there was only a general reference to these rules without of course mentioning any particular injunction of Islam which was claimed to have been violated by' these two rules. 97. On the contrary we find that a lady Assistant Superintendent has been made physical incharge of a women's prison. The rule also affirms that Woman Warder shall be incharge of the women enclosure in any prison. The women enclosures are already separate from the male enclosure and therefore there does not exist any "situation, arrangement, event or system which is directed towards or may possibly lead to immorality or adultery". 98. The other objection raised was that the Lady Assistant Superintendent should not be under the control of the Superintendent of local men's prison. It was also asserted that the female Warders should not be under the control of Superintendent or Deputy Superintendent of Prisons. 99. The objection could have been valid if all the female prisoners would have been under the control of male Superintendent/Deputy Superintendent. Rule 1180 visualizes a Lady Assistant Superintendent incharge of the female prisoners and Rule 1181 contemplates a woman warder as incharge of the women enclosure. 1510 100. In so far as the chain of command in the prison department or for that matter any other wing of Government administration is concerned, the presence of a female at any given step does not create any trouble. There is a well defined hierarchy from bottom to top which is known as chain of commands. This chain includes both men and women. 101. The only objection expressed at the Bar was that this provision can be misused and may lead to immorality. This objection is not valid for the simple reason that the provision itself is not being challenged but apprehensions are being expressed, that the impugned provision might as well be misused. This line of argument would exclude innumerable things from human activity which are otherwise valid. For fear of printing seditious matter you cannot stop the functioning of printing press or the apprehension that phony medicines may be manufactured by unscrupulous elements no Government will ban medicine preparations. However, in the case of Pakistan and others v. Public At Large and others reported as PLD 1987 SC 304 at page 355 it .was held that "Only because a provision can be used in an oppressive or capricious manner or is capable of being misused does not mean that the provision itself becomes invalid. The sole criteria are the test of repugnancy to Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h.). 102. No Ayat of Holy Qur'an or Sunnah has been shown to be violated if a female officer is placed at a particular step in the chain of command. Consequently the Shariat Petition No.61/I of 1992 being without force is dismissed. SEGMENT EIGHT DEPUTY SUPERINTENDENT (ISSUE NO.IX) 103. Shariat Petition No.61/I of 1992 seeks to impugn rules 1002 and 1004 of the Pakistan Prisons Rules, 1978. These rules are part of Chapter 41 entitled Deputy Superintendents. Rules 1002 and 1004 are being reproduced below:- Persons included in the word "Deputy Superintendent" 1511 Rule 1002.---For the purposes of duty, the expression "Deputy Superintendent" shall be deemed to include Assistant Superintendent and every person for the time being performing all or any of the functions or duties of a Deputy Superintendent. General Duties Rule 1004.--- (i) The Deputy Superintendent shall be the chief executive officer of the prison and shall discharge his duties under the immediate directions and orders of the Superintendent. It shall be his duty to see that all orders issued by the Superintendent are duly carried out. (ii) It shall be the duty of the Deputy Superintendent to maintain discipline both amongst subordinate officers and the prisoners and the strict enforcement of all rules, regulations and orders relating to the management of the prison, prisoners, and the staff. 104. The learned counsel for the petitioner has challenged the above provisions on the grounds mentioned in paragraph 3,4 and 5, of the Shariat Petition. These grounds are in fact apprehensions e.g. that the control of male staff over female prisoner can lead to moral excesses. The fact of the matter is that no male officer is in physical control of female prisoners. The latter are under the supervision of female warders and Lady Assistant Superintendent of Jail. The other ground is that according to Islamic Injunction "no women can be placed in custody of non-Mahram male" As prescribed in rules no female prisoner is placed in custody of non-Mehram male staff. The third objection, that any thing leading towards immorality is prohibited in Islam, is a misplaced feeling. 105. The two rules i.e. 1002, 1004 impugned in this Shariat Petition, are therefore, valid as no reason, was advanced to show that the said provisions were repugnant to any one or more Injunction of Islam. These provisions relate to the performance of normal duties. It will certainly not advance the cause of justice if an effort is made to read a mischievous meaning in any provision of law unless of course it is shown by reasonable interpretation that the provision under review is either expressly hit by an Injunction of Islam or by implication is repugnant to the letter or spirit of Injunctions of Islam. The Injunction of Islam, to be relied upon, must be identified so that a bare reading of the Injunction would indicate the obvious mischief complained of. As a consequence thereof the portion of Shariat Petition 1512 61/I of 1992, in so far as challenge to Rules 1002, 1004 is concerned is hereby dismissed. SEGMENT NINE EMPLOYMENT RESTRICTION (ISSUE NO.IX) 106. Shariat Petition No.12/I of 1999 seeks to challenge Rule 1078 of the Jail Manual. This rule occurs in Chapter 44 entitled "General Rules Relating to Prison Officers". This rule prohibits employment of persons dismissed from Government Service without the special sanction of the Government. This rule, according to the petitioner, is un-Islamic as it prohibits a person from earning legitimate livelihood (Rizqe-Halal). The petitioner however proposes that convicted persons be allowed employment in the Government service on merit. The petitioner relied upon Verse 70 of Chapter 25 of the Holy Qur'an in support of the point raised by him. Rule 1078 reads as under:-- Prohibition against employment of persons dismissed or, punished criminally. Rule 1078--.- (i) Persons who have any time been dismissed from Government Service shall not be employed in the Prison Department without the special sanction of Government. The Government shall be given a full statement of the facts relating to such dismissal. (ii) Persons who have any time been convicted of any offence against the Criminal Law and punished with imprisonment or with whipping shall not be employed in the Prison Department without the special sanction of the Inspector General. (iii) Only persons of good conduct and respectable character shall be employed as prison officers. 107. An objection was raised by Master Ijaz Hussain in his application that Rule 1078 was violative of the 1513 Injunctions of Islam in as much as it prohibits a person from earning honest living. It was further asserted that a convicted person should have an equal right of employment. Reliance in this connection was placed on Ayat 70 Sura 25, (Al-Furqan). The Ayat states that Allah will change the evil deeds into good deeds of those who repent because Allah is Forgiving and Most Compassionate. 108. However during course of argument no one canvassed this proposition before us. It is worth mentioning that it is not the fundamental right of every person to obtain a Government job. Prisons, as a segment of the administrative 'machinery of the State, cannot 'be equated with any other department or institution under the control of Government. Every department has specialized functions to perform. The appointing authority has an inherent right to acquire or requisition services of skilled persons according to the need or the standard determined by that department. The matter of eligibility of an employee can best be settled by the department concerned. Recruits cannot be thrust upon the prison departments. Moreover there is no law to prohibit a previous convict from pursuing lawful economic enterprise in his private capacity. No Injunction of Islam has been referred ' to by petitioner to establish that the impugned rule is in any manner opposed to Islamic Injunctions. However we observe that this rule does give arbitrary authority to Government as well as the Inspector General of Prisons to employ dismissed government officers and previous convicts. This is a discriminatory provision and is not covered by the principle of classification on reasonable grounds. In this view of the matter the elements of special sanction of Government and special sanction of Inspector General of Prison are hereby declared violative of Injunctions of Islam on account of arbitrariness and other reasons as discussed in detail in Segment Two of this judgment. The impugned provision to the extent of special sanction shall cease to have effect as from 01.12.2009. Consequently rule 1078(i) is declared repugnant to Injunctions of Islam to the extent indicated above. Resultantly Shariat Petition No.12/I of 1999 is partly accepted. SEGMENT TEN STATUTORY RELIEF (ISSUES' NOS. VII, VIII) This segment is the subject matter of Shariat Miscellaneous Application No.21/I of 1995 which seeks amendment in section 382-B of the Code of Criminal Procedure. The Code of Criminal Procedure (Second Amendment) Ordinance, 71 of 1979 had substituted the word "may" with "shall" in section 382B of the Code. The section as amended, at present, reads as follows:- 1514 "Where a court decides to pass a sentence of imprisonment of an accused for an offence it shall take into consideration the period, if any, during which such accused was detained in custody for such offence." The objection of the petitioner is that the period of detention in custody for the offence should be deducted from the quantum of sentence of imprisonment awarded at the end of the trial for the same offence. Let us examine it in the light of relevant verses of Holy Qur'an. The following principles can be inferred from the Injunctions of Islam relating to the realm of administration of justice. a. All human beings are equal before law and even handed justice has to be administered to the affected parties and no one should be punished beyond the period stipulated in law. (i) Ayat 48, 123, 286 Sura 2: (ii) Ayat 135, Sura 4 (iii) Ayat 8, Sura 5 (iv) Ayat 15, Sura 10 b. Temper Justice with Equity (Soften Adl with Ehsan). Ayat 90 ' of Sura 16 of Holy Qur'an c. The recompense of an injury is an equal injury but forgiveness in Divine. Allah loves the compassionate. Ayat 41 of Sura 42. 110. In this view of the matter it appears to be just and reasonable that the period spent by a prisoner in detention/custody for an offence before and during the trial ought to be deducted from the sentence awarded by the trial court for the reason that the prisoner has already suffered incarceration on account of the crime report which becomes the basis of his conviction and the consequent sentence of imprisonment. The omission to deduct such a period of detention in the same cause would fall in the category of Zulm which the Holy Qur'an does not countenance under any situation: Refer Ayat 85 Sura 1515 3. The existing provision i.e. section 382-B of the Code of Criminal Procedure in so far as it speaks of taking into consideration the period spent in detention for the same offence, before pronouncement of judgment is declared derogatory to the Injunction of Islam. Necessary correction may be made by 1-122009 whereafter the order of this court will take effect and the provision of section 382-B of the Code of Criminal Procedure would read as follows:-- "Where a court decides to pass a sentence of imprisonment of an accused for an offence, the period, if any, during which such accused was detained in custody for such offence, whether before or after submission of report under section 173 of the Code of Criminal Procedure or initiation of a trial in a case instituted upon a complaint, shall be deducted from the quantum of sentence of imprisonment awarded by the trial court or it may be adjusted against imposition of fine if the court so directs. 111. Consequently Shariat Miscellaneous Application No.21/I of 1995 succeeds partly. We took notice of this provision also because this point invariably crops up whenever the question of benefit of section 382-B of the Code of Criminal Procedure comes under consideration at the time of award of sentence to the accused both at the conclusion of the trial and at the time of hearing the appeal. It is hoped that this declaration will put an end to the controversy. SEGMENT ELEVEN DIETARY REQUIREMENTS (SUO MOTU-ISSUE NO.IX) Feed the Hungary, Visit the Sick, And free the prisoner If he be unjustly bound 1516 (HADEES) 112. Chapter 20 of the Pakistan Prison Rules deals with the Dietary requirements of the prison population. We have taken Suo motu notice of an extremely hard situation which relates with the basic human necessity i.e. daily diet prescribed in the rules. This problem is being faced by almost every prisoner since the time prison discipline was applied upon the prison population. Our main concern is that according to the Islamic teachings, the Captor is under an obligation to make adequate provision for persons who are under his charge. Ayat 8 of Sura 76 of Holy Qur'an, with which this judgment opened, is a pointer to this very thing. 113. Chapter 20 of the Rules, covering Rules 468 through 507, empowers prison authorities, inter alia, to fix scales of prison diet, number of meals per day, receiving food gifts from private societies and other related matters as mentioned in this chapter. The basic point which attracted our attention was the amount of money spent on each prisoner per day to meet his food requirements because according to Islamic dispensation of justice, a dependent or a ward including a captive is the responsibility of the guardian/ custodian/ captor/ keeper/ shepherd. Violation of such an important principle is certainly cognizable. 114. Allocation of funds to cater to the actual daily dietary requirements of the prisoners was a matter that demanded thorough probe though it was not challenged before us. We have however taken judicial notice of this fact because improper nutrition of persons, under the control of a keeper/captor, is not only a negation of1slamic tenets but also a source of constant irritation among the inhabitants of penal institutions. Ayat 56 of Sura 24 of Holy Qur'an draws the attention of its readers to the Divine promise that when He establishes the rule of believers on this earth, the element of fears and apprehensions of all categories vanishes and in exchange peace and security prevails. The KHAUF gets converted into AMAN. This is supposed to be a guarantee available in the Constitution of every Muslim country and the State should takes steps to fulfill the Divine promise, whenever it is brought to its notice that a certain deficiency is a source of trouble for any disadvantaged group in the society. 115. Chapter 20 of the Pakistan Prisons Rules deals with the dietary requirements of the prisoners. This chapter consists of 40 rules starting from rule 468 and ends up with rule 507. Rule No.468 authorizes the Inspector General of Prisons to fix scales of prison diet. The scale for labouring and non-labouring prisoners as well as ailing prisoners is also prescribed. Rules 472 and 477 prescribe scales for the morning, mid day and evening meals etc. for each prisoner. Special diet on Eids and Aftari during the 1517 month of Holy Ramzan is also prescribed. The good thing in these rules is that diet money has not been prescribed and instead the scale of meals has been prescribed in grams. However these scales also need revision because the other persisting complaint is that even quantity wise the food is exiguous. 116. The amount of money allocated by the Provincial Government to meet the dietary requirements of the prisoners is deplorable, to say, the least. A sum of @ Rs.19.57 per person was allocated by the Punjab Government to the prison department to defray the expenses of three meals a day in the prisons. This amount was later increased to Rs.33 per person per day in 2006-2007. We are told that the Government is now considering increasing this amount to Rs.50 per person per day which means that three meals would be covered by fifty Rupees per person per day. Even this amount is insufficient keeping in view the prices of food stuff. 117. The amount of money allocated by the N.-W.F.P. Government for an under-trial prisoner per diem is Rs.35.57 and for a convicted(labouring) prisoner per day' is Rs.39.04. This amount is the current dietary charge as stated by the Office of Inspector General of Prisons N.-W.F.P. Peshawar. The amount of money allocated for three times diet in the Province of Balochistan is approximately Rupees 37.00 per prisoner per day. This state of affairs in all the Provinces does not reflect a satisfactory picture. Malnutrition coupled with uncompensated labour would certainly earn for the prisons the name of a Kharkari camp or more of a concentration camp under enemy occupation rather than a prison house in one's homeland. The Injunctions of Islam are very clear on this point. The Muslims are ordained to make adequate provisions for their dependents. These provisions include food, clothes, medicines and lodging of the persons under their control. Reference in this connection may be made to Ayat 8 of Sura 76 (AlDahar) of the Holy Qur'an. 118. A captive is the responsibility of his captor and the latter is, for all practical purpose, answerable about the well being of the detenue. Bukhari, in Book LXXXIX, The Book of Ahkaam, Chapter 1 relates a tradition on the authority of Musa bin Ismail to the following effect:--- "Surely! Everyone of you is a guardian and is responsible for his charges; The Imam (ruler) of the people is a guardian and is responsible for his subjects; a man is the guardian of his family (household) and is responsible for his subjects; a woman is the guardian of her husband's home and of his children and is responsible for them; and the slave of a man is a guardian of his master's property and is responsible for it. Surely, every one of you is a guardian and responsible for his charges". 1518 119. This tradition is a notable commentary of Ayat 34 of Sura 4 of the Holy Qur'an. This tradition was dilated upon by a Full Bench of the Federal Shariat Court in the case of Ansar Burney v. Federation of Pakistan and others reported as PLD 1983 Federal Shariat Court 73 at page 81. Wherein it was held that the word "Raa" means a herdsman, shepherd, guardian, keeper, protector. "The functions of a shepherd are firstly to graze or tend herd which makes him undertake the responsibility of a provider, secondly to protect it from the attacks of wild animals which gives it a sense of protector and thirdly to see that a member of the flock does not stray from the path. In that case he can also exercise his authority of retribution. Primarily the shepherd uses all means of love for keeping the members of the flock from straying". Another tradition might as well as be considered. It has been mentioned on pages 277-278 of the Book Al Mausooatal Qazaya, a book containing the cases decided by Holy Prophet Muhammad (p.b.u.h.), printed by Fatah Foundation Pakistan, on the authority of Behqi in Sunan-e-Kubra, that a prisoner (who was held as a hostage because two Muslims had been captured by his tribe) entreated the Holy Prophet (p.b.u.h.) for food and water who is reported to have said approvingly: This is your need. Thereafter he was released in exchange for the two Muslim captives. 120. In this view of the matter we feel that even a sum of Rupees fifty per day to defray expenditure on three meals per person is inadequate. Learned State counsel does not disagree with the aspect. Since the amount is not mentioned in the rules so we cannot declare it ultra vires the Injunctions of Islam but we want to make it clear that adequate provision has to be made by all the Provincial Governments to rationalize the quantum of dietary sanction for the prison population because the Islamic. Injunctions are very clear on this point. Rule 176(iii) is declared violative of the aforesaid Islamic Injunctions because it provides that a prisoner on transfer will get diet money of Rupees Three per meal. This diet money will not buy even one thin loaf of bread. Unless otherwise deleted or suitably amended this provision will cease to be part of the Code after 01.12.2009. The minimum diet amount per meal should be Rupees 50/- which amount will be revisable every three years. SEGMENT TWELVE FAMILY LIFE (ISSUE NO.I, IX) 121. During the course of arguments on various points relating to different petitions, the scourge of increasing drug addiction and immoral activities in the prison houses also came under discussion. It was 1519 noticed that the lack of facilities for conjugal sex for married prisoners was an additional factor for continuance of the practice of anal sex as an offshoot. In this process the comparatively young and new entrants in the prison become potential targets of the sex hungry senior denizens of the barracks. One of the sinister consequences of sexual deprivation erupts in the form of drug addiction other than venereal diseases. Due to the efforts of certain committed human rights activists, a vigorous campaign through print media for improving the living conditions of prisons was initiated in the decade of 1980. A positive result of this drive was an amendment in Rule 544 by N.-W.F.P. Government on 4-1-2005 followed by addition of Rule 545-A in the Pakistan Prison Rules, 1978 by the Government of the Punjab on 3rd May, 2007. Both the Notifications merit Honourable mention by way of reproduction in this judgment. 1. NOTIFICATION No.4/44-SO(PRISONS)HD/2004.-- In exercise of the powers conferred by Section 59 of the Prison Act, 1894 (IX of 1894) the, Government of the North West Frontier Province is pleased to direct that in the North West Frontier Province Prisons Rules, 1985, the following further amendments shall be made, namely:- AMENDMENT The existing rule 544 shall be renumbered as sub rule (i) of this rule and after sub-rule (i), as so renumbered, the following new sub-rule (ii) and (iii) shall be added, namely:--- (ii) Those convicts whose term of imprisonment exceeds five years shall be allowed to keep their spouses with them inside the jail premises in place specially meant for the purpose for three consecutive days thrice in a year subject to the following conditions:--- (a) only that person will be allowed who is legally married to a convict and whose identity has been certified by the District Coordination Officer concerned; 1520 (b) such male convict who has more than one wife will be allowed two days for each wife at a time; (c) only children `below the age of six years will be allowed to accompany during such arrangement; (d) those convicts who can not bear the maintenance charges shall be provided meal etc. from the jail cook house free of cost as per provision of rules, while those convicts who can afford to run their own kitchen shall be allowed to do so; (e) the convicts who are convicted on the charge of terrorism or anti-state activities shall not be allowed to avail the facilities permissible under this sub-rule, except with the prior consent of Government; (f) The Superintendent jail will detail one or more Assistant Superintendents Jail who will be responsible for maintaining all the relevant record i.e. date of visit and other particulars of the' spouses of the convict concerned under the supervision of Deputy Superintendent Jail; and (g) monthly statement of convicts who have availed such privileges be sent to Inspector General of Prisons. (iii) For availing facilities under sub rule (ii), a convict or his spouse shall apply through the Superintendent Jail concerned to the District Coordination Officer of the District to which they belong. 2. NOTIFICATION 1521 No.SO(R&P) 8-3/2005. In exercise of the powers conferred upon him under section 59 of the Prisons Act, 1894 (IX of 1894), the Governor of the Punjab is pleased to direct that in the Pakistan Prisons Rules, 1978 to the extent of their application in the Province of the Punjab, the following further amendments shall be made:- 2. AMENDMENTS In the said rules--- (1) after rule 545, the following rule 545-A shall be inserted: "545-A. Special meetings.--- (1) In addition to the privileges conferred by these rules, a prisoner convicted for a term exceeding five years shall be allowed to keep with him, his, spouse and child below the age of six years, inside the jail premises in a place specially meant or reserved for this purpose subject to the following conditions:- (a) this right may be exercised three times in a year for three consecutive days: Provided that where a male convict has more than one wives, each of them shall be allowed to remain with the convict for three consecutive days; (b) the District Coordination Officer of the district where the convict is confined may grant permission for such a meeting on the application of the convict or the spouse of the convict forwarded through the Superintendent Jail; (c) only the spouse whose identity has been certified by the District Coordination Officer shall be allowed to avail this facility; 1522 (d) the spouse and the child shall be provided meal etc. from the jail cookhouse, free of cost, as per provision of these rules. A convict who can afford to run his own kitchen may be allowed to do so; and (e) the convict who is confined on the charge of terrorism or anti-state activities shall not be allowed to avail this facility except with the prior permission of the Government. (2) The Superintendent Jail shall depute one or more Assistant Superintendents Jail to maintain all the relevant record that is, date of visit and other particulars of the spouse and the child of the convict under the supervision of a Deputy Superintendent of Jail. (3) A monthly statement showing such meeting shall be sent to the Inspector General of Prisons." (Khusro Pervaiz Khan) Secretary to Government of the Punjab Home Department 122. It is indeed a welcome start. It is hoped that the Interior Ministry will, through coordinated efforts of the Provincial Home Secretaries and Provincial Inspector General of Prisons, widen the scope of this amendment not only in the larger interest of prison population but also for the reason that maintenance and protection of family life is that chapter of Islamic law on which extra ordinary emphasis has been placed in the Holy Qur'an. Prolonged absence of the bread winner and lack of contact with members of his family can give rise to varied forms of social evils. Article 25(3) of the Constitution in fact speaks in terms of making special provision for the protection of women and children. Article 35 of the Constitution of Pakistan, for that matter, stipulates that the State shall protect the marriage, the family, the mother and the child. In this connection provision contained in clause (d) of Article 38 of the Constitution of Pakistan may be recapitulated with profit:- 1523 The State shall--- (d) provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable. to earn their livelihood on account of infirmity, sickness or unemployment; " (Emphasis added) 123. We are aware of the fact that even the limited physical movements of a prisoner or a detenue, during day and night, are under strict watch and control. He is neither enabled not encouraged to observe basic human values despite the fact that the pre-amble of our Constitution enunciates the resolve in very clear terms:--- "Wherein the Muslims shall be enabled to order their lives in the individual and collective sphere in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah." The Constitution expects 'that adequate State- sponsored measures shall be adopted in order to enable backward and deprived classes and sections of society to order their lives in accordance with Islamic tenants and it is only then that they should be expected to become responsible citizens. 124. The Home Department can formulate a policy wherein the married prisoners, except lifers and condemned prisoners, are enabled and encouraged, subject to all necessary and reasonable conditions, to avail a week's parole every four month in the larger interest of maintenance of Family Life. The spouse and children of the accused have a legitimate claim upon the latter. The family union of the condemned prisoners and lifers_ can be arranged in the family quarters within the prison walls. It will not only have a salutary effect upon the prison population but the above mentioned steps will be positive measures towards reduction of some problems arising on account of over population in the prisons. It is hoped that all the Provincial Governments will consider what has been stated, particularly in this segment relating to family life of prisoners, and make amends by extending on the one hand the scope of amended Rule 544, but also take positive steps to introduce conjugal-oriented parole scheme in appropriate cases and also initiate family reunion on auspicious occasions within the prison precincts 1524 in the larger interest of preservation of Family Life. It is further hoped that necessary action will be taken by the end of 2010 and a report to that effect will be sent by the Secretaries Home of all the Provincial Governments. Secretary Interior, Government of Pakistan will also send his own report containing an objective assessment as regards the efforts made and steps taken in this regard. These reports must reach the Registrar of this Court by 31-1-2011 whereafter this aspect of the case will be examined in February 2011. SEGMENT THIRTEEN CONDEMNED PRISONERS (ISSUE NO.VI) 125. This topic is the subject matter of 6th reframed issue. Rules relating to Condemned Prisoners are contained in Chapter 14 of the Pakistan Prison Rules, 1978 whereas the main provision on the subject is section 30 of Act IX of 1894. This item was taken up Suo motu because of a general demand on behalf of the prisoners made known through press clippings and direct appeals to the Federal Shariat Court. A member of this Board (The Author Judge) had visited jails on three occasions during the last six years to see the actual living conditions of the prisoners in general and those in particular who were awaiting final adjudication of their appeals/confirmation of death/decision on their mercy petitions. The condemned prisoner have to undergo a protracted period of uncertainty in the persistent inclement weather and hostile surroundings. 126. Provisions relating to the living conditions of prisoners under sentence of death are contained in a) Section 30 of the ' Prisons Act, 1894 (Act No.IX of 1894) and b) chapter 14 Pakistan Prison Rules, 1978 and in particular Rule 330. Both the provisions are detailed below:--- "Section 30. Prisoners under sentence of death.--- (1) Every prisoner under the sentence of death shall, immediately on his arrival in the prison after sentence, be searched by, or by order of the Deputy Superintendent, and all articles shall be taken from him which the Deputy Superintendent deems it dangerous or inexpedient to leave in his possession. (2) Every such prisoner shall be confined in a cell apart from all other prisoners, and shall be 1525 placed by day and by night under the charge of a guard. "Rule 330.--- Every prisoner under sentence of death shall be searched immediately on arrival in the prison by, or under the orders of, the Deputy Superintendent, and every article of clothing and other articles of whatever description shall be taken away from him. After having furnished him with prison clothing, bedding, aluminum utensils and light Chappals, the Deputy Superintendent shall remove him to a cell and forthwith make arrangements for his watch and ward." (Emphasis added) 127. Rules 330 through 364 regulate the living conditions of a prisoner between the period when he is sentenced to death and the actual date of execution or acquittal on account of acceptance of appeal etc. During this period, the cell, where he is to be confined, is examined and carefully watched from the point of view of security. Special guards are placed "both by day and night." The guards are equipped with sticks and whistles. The keys of these death cells are in the custody of head warder. Prisoner has to be handcuffed before his is permitted half an hour stroll in the courtyard out of the cell. Not more than one convict is allowed to be in the enclosed courtyard at one time during which period the door of his cell and the yard door must be secured by locks. The condemned prisoner is searched twice. Electrical light during night constantly illuminates his cell to ensure that the convict has not disappeared. The food supplied to him is examined before it is served. Rule 346 permits the use of bar fetter on account of punishment or when he is out of prison on transfer. At the time of his execution all prisoners in the prison remain locked-un. In this view of the matter it was decided to take Suo Motu Notice of Chapter 14 of the Pakistan Prison Rules which deal with prisoners under sentence of death. We heard arguments on this aspect of the case on two occasions: before June 2009 and then during last week of August 2009. 128. Under Rule 329, as soon as a prisoner is sentenced to death by the trial court the police officer who attends the trial is under legal obligation to inform the Superintendent of the prison of the fact of such conviction on his return to jail and from that point onward starts the rigorous regime of search and confinement as well as special guards over the convict who is henceforth termed a Condemned Prisoner. He is kept in a cell apart from all other prisoners by day and night. From sunset to sunrise the cell of the condemned prisoner is kept bright by electric light so that he is under strict observation all the time. The condemned prisoner is searched twice daily under Rule 342 by the Assistant Superintendent of Jail and the food intended for the consumption of a condemned prisoner is examined by the jail authorities who have the discretion to withhold any article which in their opinion is suspicious. From the time the trial court awards the sentence of death, at the end of an agonizing and protracted trial, upto the time of the acceptance or rejection of his mercy petition by the President of Pakistan after dismissal of his appeal in the Apex Court, he has to pass through a' distressing period of time awaiting confirmation of death sentence and disposal of his appeal by the Provincial High Court 1526 followed by an appeal before the Apex Court and subsequent mercy petition as well. The mercy petition is the last hope of a condemned prisoner. The conditions in which a condemned prisoner spends a trying period extending over a few years are simply deplorable, inhuman and unpardonable. 129. It may be legally justified for the State to detain prisoners pending execution of sentence but there is no moral or lawful reason whatsoever to subject such a convict to humiliation and disgrace. As a matter of grace even embarrassment for such a prisoner should not be countenanced. A prisoner who is serving a long term of sentence while awaiting disposal of his appeal against capital punishment is already passing through a distressing period. He has to be saved from further agony. After all the system of administration of justice revolves around human beings who have feelings like other free human beings. Disgrace and agony is alien to the concept of justice. 130. Ayat 60 of Sura 22, (Al-Haj) of Holy Qur'an has permitted retribution alone for the wrong done by an accused but this verse at the same time refers to the two attributes of Allah: that Allah is Pardoning and Forgiving. These verses do not sanction severe treatment or added agony for the condemned prisoners. Ayat 126 of Sura 16, (Al-Nahl) reminds the believers that punishment shall not exceed the injury actually inflicted. "And if you take your' turn, then retaliate with the like of that with which you were afflicted; but if you are patient, it will certainly be best for those who are patient." The lesson therefore is that death penalty may be awarded to a killer but there is no authority to treat him inhumanly for a decade or so before he is hanged by neck till death. A prisoner cannot be kept under a constant and unending fear of death in hostile surroundings for an uncertain period. 131. The fact of the matter is that even though the Sessions Judge is competent to pass the sentence of Death at the end of the trial yet his order is subject to confirmation by the High Court. The process of confirmation or otherwise of the death sentence awarded by the Sessions Judge invariably takes a few years. Even if death sentence is confirmed the condemned prisoner has a right to move the Supreme Court against the decision of the High Court. The possibility of acquittal of the convicted prisoner at the High Court level or in appeal before the Supreme Court cannot be ruled out. Even after the appeal of the convict has been dismissed in the Apex Court the prisoner still retains the right of seeking pardon, reprieve, respite, remission, suspension or commutation of the sentence passed by any court, tribunal 1527 or other authority. It is only after the President has rejected the mercy petition of the convict that the sentence of capital punishment passed by the Sessions Judge becomes final and capable of execution. It has however been observed that in 1988 and now in the year 2008 the Federal Government did think in terms of converting death penalties into life imprisonments. But this is besides the issue. 132. It, therefore, means that a condemned prisoner, who has a chance of acquittal in appeal or of the conversion of the capital punishment into life imprisonment, has in fact to wait for a period of about 10 years after the date of the pronouncement of the original judgment of the trial court. The trial itself takes a few years. A question therefore arises as to when should such a convict be treated as a condemned prisoner. This question is important because the agony through which he passes as a condemned prisoner must be reduced to minimum possible period. A period which is essential for all practical purposes. 133. After considering this issue from various angles in the light of Injunctions of Islam, we are of the considered view that a convict should not be declared a condemned prisoner from the date of pronouncement of the verdict of guilt by the trial court for the reason that unless the sentence of death is confirmed by the High Court the sentence awarded to the accused by the trial court is not capable of execution. The execution can legally follow only after confirmation by the High Court has taken place though the accused retains the right of appeal before the Supreme Court and the right to move a Mercy Petition before the President of Pakistan. That means almost a decade before his fate is finally decided. The delay is not the fault of the prisoner. He should therefore be declared a condemned prisoner at the stage when the death sentence is legally executable. He would still be within his right to move the Apex Court or initiate a mercy petition under Article 45 of the Constitution. We may however add that mercy petitions should not be allowed to linger on for years and should be decided in a reasonable period, preferably within a month. 134. Let us also consider the living conditions of condemned prisoners. The cells in which a condemned prisoner is confined under strict supervision usually measures 9 x 12 feet. The prevailing position in the prisons is that about 5 to 7 condemned prisoners are detained in a cell measuring 108 Sq. Ft. leaving just 15 square feet for each convict. For all practical purposes this is inhuman. If however it is conceded that only one person is retained in a death cell even then it amounts to a case of an uncertain and long period of solitary confinement which is contrary to the provisions contained in sections 73 and 74 of the Pakistan Penal Code. 1528 135. If we keep Article 13 of the Constitution in view we find that there is a positive guarantee of protection against double punishment. On the one hand the condemned prisoner is being already detained in the highly protected prison and on the other hand he along with a few other condemned prisoners is under additional punishment by way of strict surveillance and isolation in a cell where he has no facility even to answer the call of nature in complete privacy. In this view of the matter the provisions of the Pakistan Prison Rules are tantamount to an additional chastisement which is violative of the protection guaranteed by he Constitution against double punishment. It is worth noting that the cell allocated to the condemned prisoner is also his wash room (if the sophisticated term wash-room could be used for that smelling niche in the cell) which means that he is forced to live in adverse conditions as well. He is permitted only half an hour walk in the morning and half an hour stroll in the evening with bar fetters. 136. Ayat 70 of Sura 17 of the Holy Qur'an confers human dignity upon every person. This very principle finds mention as a fundamental right in Article 14 of the Constitution. We are made to believe that the dignity of man and, subject to law, the privacy of human being is also inviolable. The compulsion of condemned prisoners to use the same small congested living space as a W.C. within the sight of other dwellers in stinky atmosphere is certainly violative of human dignity. The Right of Privacy is a very well recognized Injunction of Islam. Ayaat 58/59 of Chapter 24, Sura An-Nur of Holy Qur'an, relate to the rule of personal and family privacy. It is observed by commentators of Holy Qur'an that non-observance of the principle of privacy may even lead to evil deeds. 137. The basic purpose of detention of a prisoner is to restrict his movement and ensure that he does not escape till the time his case is finally decided. The principle enunciated by the Islamic teachings is that the things are judged by the intention and the motive behind it. So if the purpose of confinement is to secure the attendance of a condemned prisoner to face execution ( i f so decided ultimately) it does not give-a licence to jail authorities to treat the convict in a cruel manner during the hiatus. 138. The Holy Qur'an enunciates the principle of ADL and EHSAN in Ayat 90 Sura 16. The verse says:- God commands justice, The doing of good, and Liberality to kith and kin, 1529 And He forbids, All shameful deeds And Injustice And rebellion. He exhorts you That ye may be mindful. Protracted harsh treatment with a detenue, already confined in a prison house, only because he is awaiting result of his appeal, is indeed violative of the Qur'anic principles of Ehsan. Such an unfriendly treatment is covered by the mischief of Zulm as enunciated by Holy Qur'an. 139. Detention of a prisoner in death cell for a long period and keeping him under strict surveillance, when his appeal is pending disposal, or his mercy petition is being processed, amounts to hammering a message every moment that the detenue is a condemned prisoner. He looses hope as a result of circumstances thrust upon him. This violates the Injunctions of Islam contained in Ayat 53 of Sura 39 of Holy Qur'an which says that even those who have transgressed should despair not of the mercy of God. The prison department should therefore create conditions that infuse hope in the convict particularly because the existing living conditions in our prisons are already demeaning and dehumanizing, to say the least. The Government owes a debt to the prison population because all the majestic buildings under the use of Provincial Government, including the Government Houses, the Civil Secretariat and the Prison houses were constructed with the uncompensated labour of the whilom prison population during the British regime. The digging of the canal network over long stretches and growing jungles like Changa Manga was also the output of millions of tiring and unpaid working hours of the incarcerated population over a period of decades. If we were to add up the amount of money payable as wages to the prisoners for the unaccountable hours of hard labour extracted from the voiceless and oppressed denizens of bounded barracks, the resultant figure should put to shame any reasonable citizen of this sub-continent. 140. There is another tradition reported in Bab-e-Mazalam, Volume 9 of Sahih Bukhari, which consists of following four parts:--- 1530 "Be gentle to them and oppress them not, attract them by good countenance and repulse them not by an ill demeanor. Be careful of the distress call of the oppressed. ,Between him and Allah no screen exists". Yet there is another tradition in Chapter 80 in Sahih Bukhari to the following effect:--- Make things easy for the people Don't create difficulties Give good tidings Don't create circumstances which generate hatred. 141. This tradition appears to be the elaboration of the Qur'anic principle of Yusar as mentioned in Ayat 185 of Sura 2 which says:--- "Allah intends every facility for you. He does not Want to put you in difficulties". This principle is further elaborated in Ayat 4 of Sura 65: "And for those who fear Allah, He will make their path easy" and Ayaat 5,6, of Sura 94 of Holy Qur'an. 1531 (5) So, verily, With every difficulty There is relief: (6) Verily, with every difficulty There is relief. 94/5-6 (Al-INSHRAN) 142. The other significant principle enunciated by Holy Qur'an is that no one shall bear a burden greater that he can bear. This principle has been mentioned six times in the Holy Book. Reference: Ayaat 233, 286 of Sura 2, Ayat 84 of Sura 4, Ayat 42 of Sura 7, Ayat 62 of Sura 23 and Ayat 7 of Sura 65 of Holy Qur'an. In order to lay emphasis on the significance of this principle in various aspects of human life, a special prayer has also been ordained for Muslims. Translation of the supplication contained in Ayat 286 of Sura 2 is worth considering:- "On no soul doth God place a burden greater that it can bear. It gets every good that it earns, And it suffers every ill that it earns. (Pray) Our Lord! Condemn us not if we forget or fall into error, our Lord! Lay not on .us a burden like that which Thou didst lay on those before us; Our Lord! Lay not on us a burden greater than we have strength to bear. Blot out our sins, and 1532 grant us forgiveness. Have mercy on us. Thou art our Protector; help us against those who stand against Faith". (Emphasis added) 143. Let us also examine this question from another angle namely, the actual position of the pending appeals of condemned prisoners in various courts. In this way we will be able to understand the gravity of the situation faced by tight-lipped condemned prisoners. The total number of condemned prisoners languishing in 26 Jail of the Punjab alone as on 05.03.2009 was 6674. The fate of their appeals, pending disposal, is reflected from the following statement:--- Number of appeals pending in Lahore High Court, Lahore since: (a) Last 1 year = 2382 (b) 1 to 2 years = 1347 (c) 2 to 3 years = 923 (d) 3 to 4 years = 685 (e) 4 to 5 years = 351 (f) Above 5 years: 286 Number of appeals (of Punjab Province) pending in the Supreme Court of Pakistan since: Last 1 year : 270 1 to 2 years : 160 2 to 3 years : 108 3 to 4 years : 53 4 to 5 years : 33 Above 5 years : 34 Mercy petitions pending in GHQ were 12 in number whereas Mercy petitions pending before President of Pakistan were 47 as on .31-12-2008. It may be noticed that these 6674 prisoners, confined in 26 prisons all over the Province, are awaiting result of their appeals in" a tense, uncertain and overwrought frame of mind. Under the circumstances we consider that a prisoner should be treated as Condemned Prisoner only after his appeal in the High Court or the Federal Shariat Court has been dismissed and/or the sentence of death has been confirmed by the High Court or the Federal Shariat Court under section 376 of the Code of Criminal Procedure. Rules 329 through. 364 in Chapter 14 of the Pakistan Prison Rules as well as section 30 of the Prisons Act, 1894 provide that as soon as a prisoner is sentenced to death he will be deposited in the death cell and subjected to special care as provided in Chapter 14. We have held that a prisoner under sentence of death shall be deemed to be a condemned prisoner only when the death sentence awarded by the trial court has been confirmed and it becomes executable i.e. when the death sentence has been confirmed under section 376 of the Code of Criminal Procedure and consequently portion of the legal provisions 1533 which authorize the prison authorities to treat a prisoner under sentence of death as a condemned prisoner before confirmation of his sentence i.e. it becomes executable, is declared to be violative of the principles of Islam. SEGMENT FOURTEEN GROUND REALITIES (ISSUES NOS.IV, IX, X) We will discuss the question of ground realities under four distinct heads namely:-- A . INTRODUCTORY B. CHALLANGING PROBLEMS C. PROPOSED SOLUTIONS D. ROLE OF PRISONS. A. INTRODUCTORY 144. The central problem in the prisons is the prolonged deprivation of prisoners. As he enters the prison his attire is changed. He is not free to move about. He has no access to his family members. He looses contact with outside world. Hostile and unfriendly atmosphere prevails all around. The sight of strong and lofty walls, fortified with concrete watch towers, and the steel barracks all around are a constant source of depression. His entire possession in the barrack consists of a cup, a plate, a spoon, a blanket, a cotton Durrie and of course his history ticket. This piece of paper, known as history ticket, is his total identity. Conjugal sex is denied henceforth. Homosexuality instead of heterosexual contact prevails. An oppressive and unfamiliar regime controls his conduct. He has the uncanny feeling of being watched by thousand eyes throughout his stay. He is a permanent suspect and presumed to be a potential malingerer. Disowned by society and unclaimed by friends, the prisoner sojourns in a forsaken barrack for a stipulated 1534 period. From within he is broken as he is enmeshed in a maze of bureaucracy. His personality gets split. An outcast, exposed to desperate criminals, he looses sense of proportion and security. He can neither witness the rise nor the setting of sun. He can neither watch the flight of birds back to their nest nor can he observe the movement of moon in the starry nights. The only hope on which he lives and the only thing that sustains him is the sight of a fruitless day creeping into a somber dusk because this very twilight carries a veiled message that another day of misery has in fact passed away. He entered the strongly guarded penitentiary with no voice in the affairs of his own life or the life of his family members. He is no more master of even his own destiny. He lives in a persistent vegetative state. "The best prison community is no more than an extreme totalitarian society and the most it can produce is a good convict, who is quite different from a good citizen." 145. Prison as a means of coercive confinement is a source of hardships and many ills. Prison administration, under the peculiar prison conditions, is itself beset with a host of serious problems at the same time. The current prison problems include over-population, poor living conditions within the prison premises as well as inadequate medical facilities and minimal 'vocational/educational facilities. It is indeed a continuing wrong. Then there are problems faced by those who visit their relatives and friends in the prison houses. Another related issue is the regular supply of narcotics and illicit arms and mobile phones through "approved" agents who come under the garb of visitors and have already penetrated the prison administration. Another category of the problem is the service conditions of prison administrations. These officers are obliged, as a part of their duty to continually handle a community of angry and deprived persons. 146. The element of over-population in the prison houses is a source of many ills. It is the bane of Jail administration. We have scanned the Population Statement of Prisoners confined in Jails of the Punjab as on 31-12-2008 as well as the crime-wise and section-wise Monthly Population Statement for the month of December 2008 as well as the statement showing the number of juvenile convicts/undertrial and condemned prisoners in the Punjab Jails as on 31-12-2008. The figures were obtained from the office of the Inspector General Prisons, Punjab. The population chart shows that out of 32 jails in the Province, 30 prisons are over crowded. As against the authorized strength of 229 prisoners the District Jail Multan is maintaining a choking level of 807 prisoners, the Central Jail Gujranwala has a population of 4481 as against, the permissible strength 913 prisoners. It means that the maximum over-crowding in Multan by the end of the year 2008 was 394%. This is a staggering disclosure. The gravity of the problem needs immediate attention as it is in fact a human problem. The cause of the oppressed is being shelved because they are not permitted the right of protest before any mundane tribunal. 1535 147. The number of prisoners languishing in jails of the Punjab as on 31-12-2008 was 59965 out which 999 were juvenile convict/under trial prisoners whereas the total strength of female prisoners was 856. It is however heartening to note that the number of female prisoner is less than a thousand but 'it is unfortunate that the number of juvenile prisoners is approximately one thousand. This figure serves a note of caution to the entire nation. The ratio of adults to juvenile is 60 to 1. These figures were obtained from the office of the Inspector General of Prisons, Punjab, Lahore in April 2009. These figures reflect the situation only in one Province. The situation in other Province would not be much different. 148. These figures also show that out of 60 thousand prisoners the number of under trial prisoners is 40 thousand. These figures suggest that with better management of trial and bail petitions and providing Judicial lock-up, the number of prison problems could be reduced considerably. 149. We have taken judicial notice of the service conditions of prison staff. We have also attempted to identify and enumerate the various problems facing this 'sector of administration of Criminal Justice. We have in this exercise made an effort to proffer solutions as well for consideration of the Executive and the Legislature. We are of the considered view that things can improve provided sincere efforts are devoted towards solution of these problems. 150. We will not hesitate in reiterating the fact that the living condition in prison houses is not up to the mark. A reference may be made to the case of Majeeda Bibi V. Superintendent Jail reported as PLJ 1995 Kar. 1. It was a Division Bench case. The Central Prison Karachi was visited by the erstwhile Chief Justice Sindh High Court along with 18 Honourable Judges on 30-12-1993 who, for the first time in judicial history undertook such massive inspection of the Prisons. The Honourable judges held as follows:--- "During the inspection, it was noticed that the condition of most of the prisoners who were kept in the Security/Bund Wards was pathetic and pitiable. The manner in which they were kept in a cell, having an area of few feet, in solitary confinement with bar-fetters on. If a comparison of the conditions of these prisoners is possible, then it can only be made with the animals who are kept in zoo. It can be said without any hesitation that even the animals in the zoo are better placed as they have no bar-Teeters inside the cage and they are provided with better facilities. Most of the prisoners complained that they were kept inside the cell for several days with barfetters on and were taken out only once in a week for a bath, otherwise they had to eat, drink, sleep and to relieve themselves in the cell in the presence of other prisoners and had to perform all other daily routine inside the small cell some of which even do not have facility of direct sun1536 light……..In some of the cells, prisoners were kept in solitary confinement, while in some of the cells there were 2, 3 and even 5 prisoners. Neither there were any arrangements for proper supply of drinking water nor there were any sanitary arrangements. Several cells were full with filthy and dirty water and on account of the bad smell it was difficult even to stand outside the cell. During the inspection, it was further noticed that: (i) entries made on the history tickets were not upto date; (ii) some of the prisoners were kept in these cells as punishment, but the period for which they were punished to stay in the cell was not specified on the history ticket; (iii) some of the prisoners complained that they have been confined in these cells because the Superintendent or Jail/Staff was not happy with them; (iv) some of the prisoners also complained of beating and maltreatment by the staff of the prison; (v) generally all the prisoners complained that they were not allowed to meet the visitors; (vi) several prisoners complained that they were not allowed to meet the visitors; (vii) the manner in which the prisoners were kept in the cell was in gross violation of the Prison Rules." 1537 It was further held as follows: "In the circumstances we direct that the copies of The Constitution of Pakistan, Pakistan Prisons Act, the Prisoners Act and the Rules framed there under, Jail Manual, Pakistan Penal Code, Criminal Procedure Code and Evidence Act etc. should be made available in all the prisons throughout the Province of Sindh for use and for reference by the prisoners. We further direct that copies of the Constitution and Jail Manual should also be made available in Urdu and Sindhi. We further direct that arrangements be made for providing more useful and educative books in the libraries of all the jails in the Province of Sindh." B. CHALLANGING PROBLEMS 151. As stated above the Prison Administration is itself plagued with a number of serious problems. Under the circumstances we would also advert to the issue of the service conditions of the prison bureaucracy and the stark atmosphere in which the prison officers themselves spend a life term and in turn suffer the reaction of prisoners which, in fact, is occasioned by of their own rigid attitude. Risks and persisting tension in the atmosphere are added incidents of the peculiar type of job they have to perform when they manage a prison house. Prison staff itself, under the circumstances, can be considered part of Prison Population. Detailed below are some of the major problems which are being faced by the Prison Administration and thereafter we will consider some proposals for solving these problems: (i) The basic problem is overcrowding in jails. In the Punjab Province alone the prisoner population as on 31-12-2008 was 60,000 (to be precise 59,474) as against the sanctioned strength of 21527. Out of 59,965 prisoners the number of under-trial prisoners is 41,505 i.e. almost two third strength. This figure is a pointer towards (a) the urgent need of making adequate provision for Judicial Lock-Ups in all those places where criminal cases are heard, (b) proper management of trials and (c) liberalization of Bails in certain categories of offences. Overcrowding in itself gives rise to multifarious problems which need not be recounted here. Suffice it to say that overcrowding is the nursery of varied types of evils and moral aberrations. (ii) Shortage of Warder Guards and other staff to combat recurring problems within the prison premises due to overcrowding and related matters. 1538 (iii) Lack of modern equipments, which includes arms and ammunition as well as gadgetry, to enable the staff to achieve fool proof safety and security of the prison barracks, boundaries and prison population. (iv) Absence of adequate funds to provide emergent and routine medical facilities for the inmates within prison premises. There is dire need to revamp medical administration in the jails. (v) Lack of appropriate vocational/educational facilities for the prisoners. (vi) Absence of a properly planned programme for recreational activities. Availability of such like facilities would go a long way to ensure reduction of prison problems. (vii) Retarded career progression of the prison staff. (viii) Lack of incentives to boost up morale of prison staff. (ix) Long and uninterrupted association with criminals affects the psyche, conduct and responses of the prison officialdom. (x) Shortage of residential accommodation for the jail staff. (xi) Non existence of correctional centres within prison premises. 1539 (xii) Inadequate training facilities for jail staff at local and international level. C. PROPOSED SOLUTION (a) Construction of Judicial Lock-Ups at each Tehsil Headquarter for the safe custody of under-trial prisoners. It will' go a long way not only to reduce crowding but will save the accused and police from the hazards of negotiating cumbersome distances between Prison compound and Court premises. This step will also ensure timely presence of under trial prisoners in the Courts and thereby reduce the number of un-necessary adjournments of trials. The number of visitors to the Prison Houses will also diminish, thus reducing pressure on the streets choked by vehicles. (b) Establishment of the proposed open jail in Bahawalnagar at an area of 200 squares should be undertaken immediately. 500 good conduct long term prisoners can be employed along with their families in open jail for their rehabilitation. This sort of agriculture therapy is considered useful both for the convicts and the Home Department. Every province can provide land for open jails. The open prison system, which had been developed especially in the United States, the United Kingdom and the British Commonwealth, and the Scandavian countries, was recognized in due course of time as an important contribution to effective rehabilitation of prisoners. The Swedish Prison Code of 1944 and English Criminal Justice Act 1948 gave legislative expression to progressive thoughts on the treatment of offenders. (c) Construction of jails in the Districts where previously no jail exists like District Nankana Sahib, District Chiniot, District Khushab should not be delayed any more. Similarly another District Jail in Lahore along River Ravi to feed District Courts near Data Darbar, can be added to solve the problem of overcrowding and related issues in this city of increasing populace with rising rate of crime. (d) Incentive based performance/pay package/career progression for prison staff, at par with the Police employees, is long awaited. The present disparity in service conditions of prison and police staff certainly affects the efficiency of prison staff, adversely. (e) Establishment of Drug Rehabilitation Centres. 1540 (f) Establishment of Correctional Centres so that services of Sociologist/Social Workers, Psychiatrists and Law Officers is readily available for redressing problems of staff as well as the prisoners. (g) Watch and Ward Force of Prisons Department be increased proportionate to the increasing population of prisoners in the jails according to the yard stick determined by the Government. (h) Liberalization of Parole and Probation System so that maximum number of prisoners are released on parole and probation system to reduce overcrowding. There is one good provision in Jail Manual namely Rule 146 which allows release of a prisoner on ground of old age, infirmity or illness subject of course to verification of the ailment by a Medical Board. The scope of the term illness has not been defined. Prisoners suffering from various diseases like cancer, tuberculosis, coronary thrombosis, kidney problems etc. who need constant care could be released on certain conditions. (i) Expeditious disposal of cases to reduce strength of under-trial prisoners in jails. Moreover, bails can be liberalized both in certain categories of offences and unavoidable delays in the completion of trials. (j) Establishment of Training Institutes. (k) Prisons Management and Information System. (l) Provision of modern security equipment, gadgetry, arms and ammunition. (m) Introduction of market oriented Trade Training Vocational skills and Prisons industries. (n) Increase in the number of Death Cells in order to reduce pressure on the existing cells. 1541 (o) Introduction of a secure and properly guarded but a respectable system of receiving visitors who come to meet prisoners. (p) Reasonable number of family quarters for married prisoners. (q) Cultural shows at regular intervals. (r) Religious instructions with special emphasis on character building and moral values. (s) Extra remissions on account of educational achievements like those provided by Rule 248(ii-a) whereby under trial prisoners who pass matriculation or higher examination in first division during their stay in the jail are duly rewarded . Better class jail facilities can be allowed to successful candidates with effect from the date the result is announced. (t) Canteen in every prison house can be established not only to avoid contact of lower prison staff with prisoner on money matters but also provide much needed facility to incarcerated population. (u) Family reunion in prison compound on auspicious occasions for well behaved prisoners. (v) Introduction of insurance based compensation for the labour put in by a prisoner. Enabling rules be incorporated to provide compensation/wages to the prisoners for the hard work put in by them during detention period. (w) Compulsory attendance/detention centres can be established as alternative to imprisonment of young or first offenders wherein education facilities/guidelines can also be provided. 1542 (x) After release follow-up can be of considerable assistance. NGO's or even a new branch of social service within prison discipline can be created wherein voluntary services of social workers, teachers, psychiatrists and selected members of civil society can be obtained for the rehabilitation of released prisoners so as to properly absorb them in social set-up. (y) Free Legal aid facilities for poor prisoners both before and after conviction through the good offices of Pakistan Bar Council at Supreme Court level and Provincial Bar Councils at the High Court and District Courts level. (z) In view of the mandate contained in Article 38 of Constitution there should be a° Community Centre in each central prison wherein apart from arranging collective meals twice a day, arrangements be made for congregational prayers five times a day, workshops, seminars, plays and other recreational, educational, cultural, religious activities not only to keep the prison population mentally and physically occupied but help them to exploit their hidden potential during the forced detention period under the guidance and supervision of psychiatrists and social workers. So far the prison discipline, over a period of more than a century failed to introduce steps for the Reformation or Reclamation or Rehabilitation of prison population. Serious efforts for assimilation of released prisoners in the social environment is urgently required. Three Rs. must find mention in revised Jail Manual. To expect, under the prevailing circumstances, that the prison beaurucracy will take initiative in the above mentioned proposals and go beyond the terms of reference is in fact asking for the moon. However tangible malts can be achieved if the prison officialdom could be persuaded to work according to the letter and spirit of the authority already stipulated in the prison discipline. But to achieve salubrious and beneficent conditions a sincere paradigm shift would be required. It may also be added here that at least the prison houses located in the Provincial Headquarters namely Karachi, Quetta, Lahore and Peshawar must have properly manned and separate but effective de-toxification centres for the drug addicts is absolutely essential to combat the increasing drug menace. In view of the increasing number of drug addicts the Federal Government can provide funds to the Provincial Governments to construct Annex in the prison compound to accommodate and treat the addicts in a separate section away from the non-addict prisoners. 1543 D. ROLE OF PRISONS One who misbehaves With his slave (prisoner) Shall not enter Paradise (HADEES) 152. There are three functions of prisons: CUSTODY, CARE and CORRECTIVE. The purpose of prisons is certainly custodial but the purpose of custody has to take care of prisoner and apply corrective measures. The Corrective/Rehabilitation aspect is not visible in the Prison Discipline applicable in Pakistan. The Jail Manual was drafted with the sole object of holding the undertrial prisoners or confining the convicted persons. Effort should be made to clear the prisons and not to fill them. The Corrective or Rehabilitation aspect must be introduced with a missionary zeal and efforts should be geared towards after-release welfare of prison population. Relief,. Reclamation and Rehabilitation should be the logo of new prison discipline. Those leaving the prisons at the end of their terms must return home with the realization that human life is a Divine gift which has to be honoured because it has a meaning and a purpose:--- "Verily Thy Lord is full of Forgiveness for mankind For their wrong doing" Ayat 6 Sura 13 Sura Raad Al-Qur'an "Did you think That We created you Without any purpose, and You will not be 1544 Brought back to Us" Ayat 115 Sura 23 (Al-Muminun) 153. There is however a salutary provision in the otherwise demanding and depressing prison rules, contained in Rule 304, Chapter 12 of Pakistan Prison Rides, 1978. It states that: "Rule 3 04.-- when a juvenile prisoner is due for release and required assistance to settle in life, the Superintendent shall, send' intimation to the Secretary of the District Committee of the Prisoners' Welfare Society of the district of his residence at least one month before the date of release." 154. The rights of children have been specifically enumerated in Holy Qur'an which should be a part of our legal code. Noted below" are the provisions where Holy Qur'an mentions the rights of children in the domain of their sustenance and upbringing, including protection from evil influences, facilities for education, right to life, proper guidance, sympathetic attitude and a hos t of other things. "Ayat 233 Sura 2 Ayat 141 Sura 6 Ayat 31 Sura 17 Ayat 74 Sura 25 Ayaat 13-19 Sura 28 Ayat 9 Sura 4 Ayat 40 Sura 14 Ayat 3 Sura 22 Ayaat 7-12 Sura 28 Ayaat 6-7 Sura 65." Learned Standing Counsel agrees that when a juvenile prisoner is released there should be some body to guide him and enable him to enter life as a productive unit of society. The Government can consider amending the rule whereby Probation Officers, particularly in cases of orphan juvenile offenders, are deputed to provide necessary assistance. 155. The fundamental guiding principle of Islamic polity, as enunciated by Holy Qur'an and Sunnah of the Holy Prophet PBUH, in so far as human affairs are concerned, is the establishment of Justice and 1545 negation of Injustice and Inequity. The rule appears to be: Eschew ZULM and foster ADL-O-EHSAN. This approach is amply corroborated by the fact that the first significant thing in the life of Holy Prophet Muhammad PBUH, while still he was 20 years old, was the convening of Hilf-ul-Fuzul. It was a voluntary organization by a few committed sons of Macca. The commitment made by a member of this voluntary association was that each member would be always ready and come forward for the rescue of victims of high-handedness or tyranny and those who needed succor, support or security. 156. The theme of securing basic human rights and the establishment of justice runs through the entire fabric of Divine Message. The number of times the commandment to do justice has been mentioned in the Holy Qur'an is a indication that justice is almost an article of faith for the Muslims. Qur'an is not content with the use of the term ADL (Justice) alone .but the Holy Scripture, at the same time, introduces terms like QIST, EHSAN and MEEZAN to give widest possible meanings and connotations to the concept of justice in Islamic jurisprudence. 157. It is in this background that we have examined the various provisions of prison discipline in the matters agitated before us. It is not our obligation alone but the Legislature as well as the Executive is equally bound to erase every such provision which smacks of Zulm. Allah Almighty has at numerous places in the Holy Qur'an disparaged the element of Zulm. Ayat 279 Sura 2 lays down the principle La Tazleimoona wa la Tazlamoon i.e. NEITHER DO A WRONG (ZULM) NOR BE WRONGED. Ayat 57 Sura 3 proclaims that Allah does not like the transgressors (Zalemeen) and Ayat 22 Sura 14 conveys a note of caution to the Believers: A grievous chastisement awaits the wrong doers (Zalemeen). This Court hopes that necessary steps will be taken by all the Provincial Governments with the active collaboration of the Secretary Interior. The Secretary Interior and the Provincial Home Secretaries will send a detailed report on the various issues identified discussed in this segment should also reach the Registrar of this Court by 31-1-2010 whereafter the Court will examine the steps taken by the Federal and Provincial Governments in this matter. The case will be taken no again in February 2011 for reconsideration and necessary action. SEGMENT FIFTEEN PRISON DISCIPLINE (ISSUE NO.X) PART A RIGHTS OF ACCUSED PERSONS/PRISONERS 1546 158. Since this judgment deals with laws relating to prison population so it is meet that the various categories of rights of an accused or a detenue or a prisoner, as recognized by Constitution, Law, Precedents and Deen (Religion), are enumerated at one place and in particular this Judgment in order to appreciate the reason why an elaborate exercise of reviewing the prison discipline has been undertaken by this Court in the Shariat Petitions. The prison population deserves special attention because every incarcerated individual, due to the prevalent routine, has to suffer invariably on account of delays initially, in the completion of police investigation and then disposal of cases before the trial and appellate court, There have been instances when the appeal was put up at a time when the prisoner had already served the sentence awarded to him by the trial judge whose judgment he had impugned. The appeal then becomes infructous. Such a situation is embarrassing for a judge hearing the appeal. It must be appreciated and realized that prison discipline is an integral part of the administration of justice. The current prison practice is already torture oriented. The minimum requirement is that every one must be judged in accordance with law without delay. 159. In this view of the matter the rights of accused guaranteed by a) Constitution and b) other sources are being enumerated below:-. A. GUARANTEED BY CONSTITUTION. i Article 4: To enjoy the protection of law and to be treated in accordance with law; ii. Article 4(2) (a): No action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law. The life of a prisoner is as sacred as the life of any person outside the prison compound; iii. Article 4(2) (b): No person shall be prevented from or be hindered in doing that which is not prohibited in law; iv. Article 4(2) (c): No person shall be compelled to do that which the law does not require him to do; 1547 v. Article 9 stipulates that no person shall be deprived of life or liberty save in accordance with law. The accused/prisoner also has a right of personal safety before, during and after completion of police investigation and also during the period of imprisonment. Life means a secure life. vi. Article 10 mandates safeguards as to arrest and detention in its 09 detailed clauses; vii. Article 11 prohibits all forms of forced labour except compulsory service on account of a punishment for an offence against any law or on account of public purpose. This however does not mean that Constitution has disapproved payment of wages for the labour put in by a prisoner; viii. Article 12 affords protection against retrospective punishment, ix. Article 13 affords protection against double punishment and self-incrimination; x. Inviolability of dignity of man is an inalienable right recognized by Article 14 of the Constitution. The Constitution does not create any exception. The accused or a prisoner has a valuable right to claim freedom from torture under clause(2) of Article 14 of the Constitution. Torture includes mentally or physically uncomfortable feelings; xi. Article 20 guarantees freedom to profess religion; xii. Equality before law and equal protection of law is another fundamental right guaranteed by Article 25 of the Constitution; xiii. Article 25 of the Constitution further guarantees that there shall be no discrimination on the basis of 1548 sex alone. Women and children are entitled to better treatment; xiv. Article 45 of the Constitution confers a right upon a prisoner to apply for grant of pardon, reprieve and respite, remission, suspension or commutation of sentence passed by any court, tribunal or other authority. See also section 401 through 402 C of the Code of Criminal Procedure in this regard; xv. Article. 184 of the Constitution provides a remedy whereby any person (including a prisoner) can invoke the constitutional jurisdiction of the Supreme Court of Pakistan, when a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II is involved and the Apex Court shall have power to make an order of the nature mentioned in the said Article; xvi. Yet another remedy at provincial level is available to an aggrieved person (including a prisoner) under Articles 199(1)(a) and 199(1)(b), to invoke the constitutional jurisdiction of a High Court to seek a declaration or a direction against violation of fundamental right; xvii. Any citizen of Pakistan (including a prisoner) may, under Article 203-D of the Constitution invoke the extra-ordinary jurisdiction of the Federal Shariat Court to impugn any law or provision of law as being repugnant to an Injunctions of Islam and thereby get a declaration that the law or legal provision under challenge is a bad law and hence not enforceable. B. REMEDIES AND RIGHTS PROTECTED UNDER LAW. xviii. Right of the accused to the initial presumption of innocence unless proved guilty. xix. Right of participation in investigation conducted by police. 1549 xx. To lead evidence and plead innocence before Investigating Officer. xxi. Right to plead alibi and adduce evidence to that effect. xxii. To move senior police officers under section 551 of the Code of Criminal Procedure to present his view point in case the accused is dissatisfied with investigation at the lower level. xxiii. Freedom from being subjected to threats, promises or influence inducing him to disclose or withhold any matter within his knowledge as contemplated in section 163 of the Code of Criminal Procedure. xxiv. The right of accused of being informed of the cause of his arrest. Reference section 56(1) of the Code of Criminal Procedure. xxv. The Magistrate has, under section 63 of the Code of Criminal Procedure, the authority to discharge a person after he has been taken into custody. This remedy can be availed of in appropriate cases; xxvi. The right of an accused, arrested by a police officer, to be produced before the Magistrate without unnecessary delay (not beyond twenty four hours excluding the time necessary for the journey from the place of arrest to the Court of Magistrate). Reference Section 61 of the Code of Criminal Procedure. xxvii. An accused may be released by officer in charge of the police station under section 169 of the Code of Criminal Procedure when the evidence against him in not sufficient. xxviii. Cancellation of case against an accused person as contemplated by Rule 247 of the Police Rules, 1934. 1550 xxix. The accused has a right to plead innocence at the time the court takes cognizance under section 190 of the Code of Criminal Procedure. xxx. The accused has a right to seek acquittal from a Magistrate under section 249-A of the Code of Criminal Procedure at any stage of the case. xxxi. The accused has a right to seek acquittal from a court under section 265-K of the Code of Criminal Procedure at any stage of the case. Reference Farrukh Salim v. The State PLD 1997 Lahore 385 xxxii. The right of participation in the trial. Section 353 of the Code of Criminal Procedure. xxxiii. The right to retract a confession. Unless corroborated on material particulars it is not prudent to base a conviction in a criminal case on the strength of a retracted confession alone. Reference The State through Advocate-General, N.-W.F.P. Peshawar v. Waqar Ahmad 1992 SCMR 950. xxxiv. It is the right of an accused that before he is arrested under section 54 of the Code of Criminal Procedure, the police officer must have reasonable information about his possible involvement. Arrest without application of mind is illegal. The police officer must be satisfied that, (a) the complaint against him is reasonable, (b) that the information about his involvement is credible; and (c) there is reasonable apprehension about his involvement. It is however hoped that the legislature will incorporate an amendment where-under the person arrested would be immediately informed on the grounds of his arrest as well as the right of bail as is conceded in section 50 of the Indian Code of Criminal Procedure 1914. Reference is made to Allah Rakhi v. The S.H.O. and others NLR 2000 Cr. 92. xxxv. The right to plead benefit of Exceptions as enumerated in sections 76 through 106 of the Pakistan 1551 Penal Code. xxxvi. The right to claim identification parade. Article 22 of the Qanun-e-Shahadat Order, 1984. xxxvii. Confession of an accused before a police officer cannot be proved. Reference Articles 37, 38 and 39 of Qanun-e-Shahadat, 1984. C. MISCELLANOUS. xxxviii. Right of being defended by a counsel of his choice as far as is possible. Reference section 340 of the Code of Criminal Procedure as well as section 22(3) of the Legal Practitioners and Bar Counsels Act, 1973 read with rules 145 through 158, Chapter XII of the Pakistan Legal Practitioners and Bar Counsel Rules, 1976 and section 40 of the Prisons Act, 1894. (This is the oldest provision on the subject followed by Code of Criminal Procedure, 1898). xxxix. Right of a prisoner to be defended at State expense vide High Court Rules and Orders Volume 3 and Rules 24 of the Federal Shariat Court (Procedure) Rules, 1981 read with Pakistan Bar Counsel Free Legal Aid Rules 1999 particularly when he is a pauper. See also 2002 YLR 3832. xxxx. Right of an accused that allegations against him are investigated by an independent agency established under law. It is also expected that the investigating police officer will not be biased. xl. That the investigation will be conducted in a transparent manner and the version of accused and his evidence or evidence in his support will be duly recorded. xli. Investigation will not be shelved and a report by the incharge police station would be submitted before the trial court without delay as stipulated in section 173 of the Code of Criminal Procedure. 1552 xlii. The accused also has a right to move the court to seek pre-arrest or post arrest bail under sections 496-498 of the Code of Criminal Procedure. xliii. The accused may, if the court permits, exercise the option of appearance through counsel as visualized in section 205 of the Code of Criminal Procedure. xliv. Freedom that the case of accused shall not be prejudiced at the trial. xlv. Right to claim benefit from irregularities which vitiate the trial. Section 530 of the Code of Criminal Procedure. xlvi. Right to be tried by an independent tribunal. xlvii. Right to cross-examine witnesses and test their credibility. Articles 133-134 Qanun-e-Shahadat Order, 1984. xlviii. Right to make a statement without oath and to explain the material points appearing against him in prosecution evidence which tend to incriminate him. Section 342 of the Code of Criminal Procedure. Pieces of incriminating evidence not put to the accused cannot be used against him. PLD 2003 Lah. 217. xlix. Right to make a statement under oath. Section 340(2) of the Code of Criminal Procedure. l. Right to lead evidence/recall witnesses. Sections 231, 540 of the Code of Criminal Procedure: 1553 li. Freedom from inducement to disclose or withhold any matter within his knowledge. Section 343 of the Code of Criminal Procedure. lii. Right of being heard at the conclusion of the trial. liii. Right of compounding specified offences. Section 345 of the Code of Criminal Procedure. liv. Right to be tried under Juvenile Justice System Ordinance, 2000, if he is less than 18 years at the time of commission of crime. lv. Right to seek pardon. Section 338 of the Code of Criminal Procedure. lvi. Right to be heard before the pronouncement of judgment both before the trial court as well as appellate court. lvii. Right to demand that conviction against him cannot be recorded/sustained unless the ingredients of the offence with which he has been charged have been proved beyond reasonable doubt. lviii. Right to seek transfer of investigation in case of partial attitude of the Investigating Officer. lix. Right of being charged with specific offence and not vague allegations and that the charge should be read and explained to him. Section 227 of the Code of Criminal Procedure. lx. That evidence of his bad character will not be led against him unless he leads evidence of good conduct. Article 68 Qanun-e-Shahadat. 1554 lxi. Right to confront a witness with his previous statement. Section 162 of the Code of Criminal Procedure read with Article 140 of the Qanun-e-Shahadat Rules, 1983. lxii. Right of speedy justice/trial as contemplated by High Court Rules and Order Vol. III. The State V. Sh. Mumtaz Ahmad and two others 1982 PCr.LJ 1284. lxiii. Right to seek transfer of cases. Sections 526, 528 of the Code of Criminal Procedure. lxiv. Right of appeal/revision. Sections 410, 439 of the Code of Criminal Procedure. lxv. Right of appeal before Supreme Court of Pakistan under Article 185(2)(a)(b)(c)(f) of the Constitution. lxvii. Benefit of doubt even on one significant point is a judicially accepted right of an accused. lxviii. Evidence shall be recorded in his presence except as otherwise provided by section 353 Code of Criminal Procedure. lxix. The right to demand production of evidence that has be comeavailable because of modern devices or techniques. Article 164 of the Qanun-e-Shahadat Order 1984. lxx. Confession of co-accused is no evidence against the accused. lxxi. And above all Fair Trial is the basic right of an accused, Corpus Juris Secundum Vol. 88 CJS Edn. 1955 1555 page 88. A "fair trial" to which an accused is entitled must be one where accused's legal rights are safeguarded and respected, and there must not only be a fair and impartial jury and a learned and upright judge, but there ought to be an atmosphere of calm, in which the witnesses can deliver their testimony without fear and intimidation and in which attorneys can asserts accused's rights freely and fully, and in which the truth may be received and given credence without fear of violence. Garret v. State 193 So, 452, 458, 187 Miss. 441 Reference page 155, Column one Volume 16 Words and Phrases, 1959 Edition. Reasons for recording rights 160. Interests of justice demanded that the rights and freedoms of prisoners. be enumerated at one place particularly when the human friendly groups all over the world are highly critical of the manner in which the American and British armed forces are treating prisoners (invariably Muslim by faith) from Iraq and Afghanistan. It is also in our mind that the contempory standard of judging and assessing a society/State is the respect and commitment it shows towards human rights. Civilized societies are those which respect and honour human freedoms/rights. This is precisely the reason why prison discipline in the West has undergone healthy amendments and legal instruments at the International level have been ratified to safeguard the rights of incarcerated lot. Quaid-e-Azam Muhammad Ali Jinnah, father of the nation, was committed to the cause of human freedoms. He advocated forcefully the issue of human rights, as is evident from the second part of the historic Lahore Resolution of 23 March 1940. The citizenry and the Government of Pakistan is therefore committed to the cause of human rights. Islam enjoins its votaries not only to be conscious of the rights of others but also to adopt an attitude of compassion for others even though some of them have transgressed. Allah commanded the Holy Prophet (p.b.u.h.) to forgive and forbear (even) those who wanted to turn him into a disbeliever (Ayat 109 Sura 2). At another place (Ayat 134 Sura 3) it is ordained that excellent reward awaits those who overlook the faults of others (knowing that Allah loves these who forgive and are benevolent) and those who, when they commit indecency call Allah to mind and implore forgiveness for their sins and who do not persist knowingly in that of which they have been guilty. The Holy Qur'an proceeds further to prescribe a supplication for the believers (Ayat 119 Sura 23): Pray: Lord, forgive and have mercy (on us), for You alone are the best of those who show mercy. We may recall the incident of Sawama Ibn Asal of Yamama when he was brought before the Holy Prophet (p.b.u.h.) as a prisoner and was released without any pecuniary penalty on the third day whereafter he accepted Islam. (Reported by Bukhari, Muslim and Mishkat). 1556 161. However the report about the living conditions of prison population as indicated in the case of Majeeda Bibi, PLJ 1995 Kar. 1, referred to above, illustrates the point that considerable efforts are required to improve the existing system and prevailing conditions. In fact a duty is cast to review the existing prison discipline for the reason that Holy Qur'an exhorts the believers to enjoin what is right and forbid what is wrong. This social obligation has to assume the form of legislation at human level when the law making institutions make laws in the field of human affairs by forbidding what is harmful for society. Ayat 110 Sura 3 enjoins:--- "You are the best of nations Raised up for (the benefit of) Humanity: You enjoin what is Right and forbid what is Wrong and believe in Allah." This principle is repeated in Ayat 113 of this very Sura as well as Ayat 157 Sura 7, Ayat 67, 71 and 112 Sura 9 of Holy Qur'an. The Prison Discipline is certainly a subject within cognizance of the parliament and consequently within the ambit of Federal Shariat Court which is bound to uphold the principle of beneficial legislation as ordained by various Ayat of Holy Qur'an. A Hadees of Holy Prophet (p.b.u.h.) may also be noted: That is the best of men who disliketh power. Beware! Ye are all guardians; and ye will be asked about your subjects; then the leader is the guardian of the subject, and he will be asked respecting the subject; and a man is a shepherd to his own family, and will be asked how they behaved, and his conduct to them; and a wife is guardian to her husband's house and children, and will be interrogated about them; and a slave is a shepherd to his master's property, and will be asked about it, whether he took good care of it or not. SEGMENT SIXTEEN 1557 PART "C" JAIL ROITS (Supplementary Issue No.J) 162. Wild outbursts and untoward incidents are not uncommon in prison life. Sometimes planned crimes like hostage taking incidents are also committed by a section of prison population. There is a long history of prison disturbances in South Asia in particular and the world over in general. It is not possible to identify one particular reason why unpleasant situations develop in prison houses as there are a number of factors that influence the inmates of penal complexes. Every mutinous incident in the penitentiary is followed by an official enquiry which usually locates not only the causes of lawlessness but also identifies areas that need curative touch in view of the facts and circumstances of each particular event. One such incident took place on 25th July, 2003 in District Jail Sialkot when five hardened criminals took nine Civil Judges/Judicial Magistrates as hostages along with four of their subordinate staff besides one Medical Officer and three Assistant Superintendent Jails in -the female ward of the prison house. During the rescue operation three Civil Judges lost their life and the five desperados were also killed during the encounter. Two Civil Judges, four jail officers and one female prisoner received injuries and one of the seriously injured Civil Judge expired on 31.07.2003 in the hospital a week after the bloody incident. 163. Ch. Abdul Sattar Aajiz, D.I.-G. (Inspection), Inspectorate of Prisons was the Inquiry officer to conduct departmental enquiry. The terms of reference were as follows:--- (a) to probe into the circumstances under which weapons were got smuggled into the jail and' could not be detected during searches; (b) to pin point security lapses because of which judges were taken hostage; and (c) to recommend measures to avoid reoccurrence of such incidents in future; 1558 164. As a result of the enquiry certain recommendation including strict implementation of existing rules, increasing strength of warders, construction of new jails to avoid consequences of over population in prison houses, supply of electronic security devices and improvement in training facilities of prison staff were made by the Enquiry Officer. Three recommendations deserve attention for our purpose: firstly the construction of additional prison houses, secondly installation of electronic security devices and thirdly implementation of rules without discrimination. Recurrence of Jail riots is an indicator of abject mismanagement. The causes for the jail riots can be attributed to the following factors:-- a. Most of the Jails of the Province are over-crowded. b. Due to over crowding the prisoners experience additional hardship in the already prevailing stark conditions. c. The un-hygienic atmosphere causes epidemic diseases which situation irritates the entire population. d. Meager allocation of funds slows down development programme with the result that the maintenance of wash rooms suffers invariably. Dirty wash rooms are sources of constant annoyance for the prisoners. e. Adjournment of cases by the trial Courts cause frustration among the prisoners. The anger is expressed against the available prisons staff. f. Delay in disposal of cases as well as resentment due to rejection of bail application by trial Court/appellate Court is reflected by recalcitrant reaction. g. Shortage of staff as compared to the inflated number of prisoners at the time of emergency makes the Jail administration helpless or weak to control the unruly prisoners. 1559 h. According to Jail authorities the abolition of the punishment chapter No.27 of Pakistan Prison Rules with no adequate alternate keeps on inducing the mischief mongers to ignite temper. i. According to Jail authorities the NGO's, Media and the civil rights activist encourage the prison population to adopt extreme measures against Jail administration. j. Non availability of modern security equipments and insufficient arms and ammunition including Rubber Bullet Guns, Tear Gas Guns, Color and Pressure water throwing equipments, Scanners, Metal detectors, close circuit TV's along with cameras, walk through gates, wireless base station along with wireless sets and walki talki sets. k. Meager Dietary allowance for prisoners. l. Inadequate arrangements for the production of prisoners before trial courts due to lack of police escort. m. Frustration caused by long delays in deciding cases at the trial and appellate stage. n. Harsh and exploitative attitude of prison staff. o. Paucity of medical facilities and necessary medicines and emergency treatment, p. Brake-down of electricity and gas supply. 1560 q. Easy availability of cell phones inside the Jail. r. The gradual decline in various chapters of our national life with consequential drug and Kalashinkov culture as well as abductions for ransom has made human existence insecure. The factual position prevailing in our prisons is that there is no emotional relief provided to prison population. The prisoners can have cathartic experience through Plays and other Cultural, activities. Better results can be expected if tension is reduced by providing various avenues of mental occupation other than uncompensated hard labour. We must aim at creating paradigms of excellence in the domain of service to humanity in general and assistance to the disadvantaged sections of society in particular. s. The prisoner is virtually a pawn in the hands of his captor. 165. However, the latest medical report about the prison population is revealing.s According to this report, published in daily Dawn, Sunday Issue of June 28, 2009 at page 13, Column No.2 and 3, a team of medical men from the Mayo and Jinnah Hospitals of Lahore, undertook a screening of prisoners the Central Jail Kot Lakhput and the Camp Jail under the orders of Chief Justice of Pakistan. Clinical analysis of the blood samples of 1,756 prisoners revealed the following results:--- "HIV Positive Hepatitis "C" Hepatitis "B" 36 236 112 The HIV virus, according to the report, was transmitted to the local prisoners from foreign inmates. Another test conducted on a group of 3590 prisoners from the Central Jail Kot Lakhput showed the following results:--- "HIV Positive Hepatitis "C" Hepatitis "B" 18 40 16 1561 The report described these results as alarming". SEGMENT SEVENTEEN JURISDICTIONAL ASPECTS (ISSUE NO.X) We propose dilating upon three topics in this segment namely: A. The Guiding Principles. B. The Interpretative Feature C. Legal Literature. PART A THE GUIDING PRINCIPLES 166. The Guiding Principles. The sacred texts contain certain Permanent Values which for convenience sake, are being termed as. Guiding Principles. These principles/values are covered by the scope of the term Injunctions of Islam for the simple reason that values are essential and fundamental for the maintenance and preservation of a progressive egalitarian society according to the Divine Scheme given in the Holy Qur'an. The Federal Shariat Court, under Article 203D of the Constitution of Pakistan, is required to examine laws on the touch stone of Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). An effort has been made to collate guiding principles from the text of Holy Qur'an at the first stage. This is however not an exhaustive list as the principles laid down in the Sunnah have not been included for the present. 1562 167. Amendment in certain provision of prison discipline have been suggested by petitioners in different petitions namely Shariat Miscellaneous Application No.21/I of 1995 and others. It is indeed a healthy exercise to examine and analyze provisions of existing laws and to propose amendments with the clear objective of removing hurdles and thereby making things easy for the people. This is the acknowledged method of development of law. Laws are made for the betterment of human beings. Hardships and difficulties faced by people have occasioned changes in law. Though this process of change is the domain of legislature alone yet the power to examine existing laws on the touchstone of Injunctions of Islam has been exclusively conferred upon Federal Shariat Court under Article 203-D of the Constitution. A reference to clauses (2) and (3) of Article 203-D would be useful:--- (2) "If the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision.-- (a) the reasons for its holding that opinion; and (b) the extent to which such law or provision is so repugnant and specify the day on which the decision shall take effect. (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,-- (a) the President in the case of a law-with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect. 1563 This shows that any custom, law or provision of law, existing on the statute book of Pakistan, can be reviewed by the Federal Shariat Court. This mode of effecting changes in laws has been recognized by the Constitution of Pakistan. 168. However, we are not unmindful of the fact that the laws are framed according to a procedure ordained in the Constitution which power cannot be usurped by this Court. The question of amendments suggested in the various petitions or to put it differently, as to what the law ought to be according to public perspective, is basically a question which is outside the jurisdiction of this Court. 169. The Constitution has very clearly identified the role of separate institutions in relation to the making, the evolution and interpretation of laws. The Parliament/Provincial Assemblies (which includes the President of Pakistan and Provincial Governors) frame legal instruments, the Council of Islamic Ideology, on being asked, gives advice or makes recommendation for legislative bodies and the Federal Shariat Court examines the validity or otherwise of existing laws and customs on the touchstone of Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah and the Superior Judiciary interprets the legal instruments. 170. In this respect it would be useful to mention at this stage that. the Guiding Principles and the Permanent Values enshrined in the Holy Book and the Sunnah of the Holy Prophet (p.b.u.h.), in particular the Sermons of the Holy Prophet (p.b.u.h.) including the sermon of Hujjat-ul-Wida, delivered on 9th Zil Haj 10th Year of Hijrah corresponding to March 632 AD, in Arafaat wherein the entire humanity was addressed, are very much covered by the meaning and scope of the term Injunctions of Islam. These principles may be described as basic human rights/ freedoms. The Courts must therefore always keep these principles in view while examining any law or any provision of law challenged before it. These tenets are part of the sacred text and are amply covered by the meaning and scope of the term Injunctions of Islam. These principles, (the Permanent Values or Guiding Principles) might as well be kept in view by the legislators at the time legislation in matters dealing with MUAMLAAT i.e., human transactions, is on their agenda. These injunctions have been identified in this judgment because, according to Article 227 of the Constitution, no law shall be enacted which is repugnant to the Injunctions of Islam. Since fresh legislation in the field of prison discipline has to be undertaken so it was deemed necessary to advert to the scope of the term Injunctions of Islam as well. 1564 171. We have identified certain problems affecting the prison discipline and made proposals for consideration of the Government and legislative bodies. We have done it as part of our duty because Sura 103 Al-Asr proclaims:--- "Consider the time! The human being, Most surely is in loss, Except those Who believe and do good And enjoin on each other What is correct And enjoin upon each other Patience (perseverance). The suggestions and solutions mentioned in this judgment should be taken in the spirit contemplated by Ayaat 1-3 of Sura 103. 172. In order to fully appreciate the meaning and scope of the term Injunctions of Islam, it would be advisable at this stage to refer to some of the Guiding Principles/Permanent Values stated in the Holy Qur'an because the existing laws, or laws to be made in future, have to conform with Injunctions of Islam as per mandate of Article 227 of the Constitution of Pakistan. These guiding principles are also suggestive of a relationship between the Hukm and Hikmat. However some of these principles can also be termed as the Objectives of Shariah i.e., Magaside-Shariah. The purpose of revealing the Injunction was in fact preservation of certain values, freedoms or right which are essential for maintenance of balance i.e. Justice. Justice secures peace and peace becomes basis of development and smooth evolution and development augurs an egalitarian society. Detailed below are some of the guiding principles/permanent values. The Ayat and Sura of the Holy Qur'an have been indicated at the end of every principle. 1565 (i) Preservation of human life: This right is however subject to the right of retribution in the field of administration of justice: Ayat 178 Sura 2, Ayat 5 Sura 32 and Ayat 151 Sura 6. (ii) Preservation of property: Ayat 188 Sura 2; Ayat 11 and 29 Sura 4; (iii) Conservation of progeny; Ayat 151 Sura 6; Ayat 205, 233 Sura 2; Ayat 205 Sura 2. (iv) Freedom from human bondage: Ayat 79 Sura 3. (v) Equality without Gender Discriminatin: Ayat 1 Sura 4; Ayat 35 Sura 33; Ayat 195 Sura 3, and Ayat 13 Sura 49; (vi) Right of Protest, Representation/Appeal is an accepted remedy which is available in Islamic Jurisprudence: Ayat 148 Sura 4; Ayat 1 Sura 58. (vii) The right of reputation: Ayat 148 Sura 4 as well as Ayaat 11-12 of Sura 49; (viii) Sanctity of Covenants at Domestic and International level: Ayat 177 Sura 2; Ayat 34 of Sura 17; (ix) Maintenance of Balance in the social set-up: Ayat 35 Sura 17 and Ayat 152 Sura 6; (x) Right to Sustenance: Ayat 152 Sura 6; Ayat 6 Sura 11 as well as Ayat 31 of Sura 17. Every 1566 individual is under obligation to support himself and his dependents but if he has no means, sustenance is guaranteed for him and his progeny by State or society. (xi) Justice must be tampered with Mercy: Ayat 90 Sura 16; (xii) Justice to prevail even though the opposite party is an enemy. Holy Qur'an mandates that believers must up hold Justice even though it is against their own interest. Ayat 135 Sura 4 and Ayat 8 of Sura 5: (xiii) Justice is an absolute value. It cannot be circumscribed by conditionalities: Ayat 153 Sura 6; Ayat 29 of Sura 7 and Ayat 135 of Sura 4. (xiv) Preservation of Human Dignity. Human Dignity is guaranteed as an inborn value as is evident from Ayat 70.Sura 17. (xv) Right to chastity: Ayaat 2 and 4 of Sura 24; Ayat 23 Sura 12; Ayat 12 Sura 66; (xvi) No one shall be held responsible for the evil doing of another: Ayat 79 Sura 12; (xvii) Right to remuneration: Ayat 70 Sura 39 and Ayat 39 Sura 53; (xviii) Human liberty: Ayat 157 Sura 7 of Holy Qur'an; (xix) Unity of human race: Ayat 213 Sura 2, Ayat 32 of Sura 30 and Ayat 19 of Sura 10; 1567 (xx) Freedom from oppression (compulsion): Ayat 256 of Sura 2 and Ayat 99 of Sura 10. (xxi) Freedom of choice: Ayat 29 -Sura 18 (xxii) Preservation of places of worship of different religions: Ayat 115 Sura 2; Ayat 40 Sura 22; (xxiii) Knowledge is a permanent value: Ayaat 31-33 of (xxiv) Sura 2 and Ayaat 3-5 of Sura 96; read with various traditions referred to in this judgment as well wherein the seeker of knowledge is assured respect and assistance. (xxv) Merit must prevail: Ayat 58 of Sura 4, Ayat 19 Sura 46 and Ayat 13 of Sura 49. (xxvi) The bounties of Allah are a free gift for the entire creation' Reference Ayat 20 of Sura 17; (xxvii) Freedom of conscience (Religion): Ayat 256 Sura 2, Ayat 6 Sura 9, Ayat 99 Sura 10, Ayat 125 of Sura 16 and Ayat 29 of Sura 18; (xxviii) Right to raise family: Ayaat 3-17 of Sura 4. (xxix) Presumption of innocence: Ayaat 12-16 of Sura 24. 1568 (xxx) Freedom from exploitation: Ayat 70 Sura 39 and Ayat 39 Sura 53; (xxxi) Human friendly system stays on the earth and has the capacity to turn fears and apprehensions into harmony, peace, amity and goodwill. Ayat 17 Sura 13; (xxxii) Equality before law: Ayaat 48,123, 286 of Sura 2 as well as Ayat 15 Sura 10; (xxxiii) Every one is accountable for his deed: Ayat 202 Sura 2. (xxxiv) Human affairs are decided by mutual consultation: Ayat 38 Sura 42 and Ayat 159 of Sura 3; (xxxv) Maintenance of Rule of Law is the primary obligation of Islamic polity: Ayat 25 of Sura 57. Qur'an refers to three things: Book, Balance and Iron in this verse. The object of the three gifts is:, People may stand forth in Justice. These three things symbolize a) the Revelation wherein are contained injunctions which command good and forbid evil, b) Balance" i.e., Justice by which individuals get their due and c) Iron stands for the strong arm of law implemented through judicial organ of the State. (xxxvi) Conquest of Universe is human destiny: Ayat 20 Sura 31, Ayat 65 of Sura 22, Ayaat 12-13 of Sura 45, Ayaat 79-80 of Sura 40, Ayaat 32-34 of Sura 14. (xxxvii) There is no fault in God's creation. Ayat 3 Sura 67; Human being have been created in the best of moulds. It is therefore essential to preserve the creation so that Divine purposes of creation could be achieved. Ayaat 4-6 of Sura 95; (xxxviii) Ease follows hardship: Ayaat 5 and 6 of Sura 94; 1569 (xxxix) Allah does not lay a responsibility on any one beyond his/her capacity. Secondly. No one shall bear the burden of another person. Every one is bound to bear the consequences of what he/she has earned. In other words no mite shall be held responsible for another person: Ayat 286 Sura 2; Ayat 42 of Sura 7; Ayat 62 of Sura 23 and Ayat 24 Sura 3; (xl) Labour shall not go waste. It must be compensated. Ayat 70 Sura 39. Every one has to be paid in full for what he has done. See also Ayat 39 Sura 53; (xli) Supremacy of Rule of law: Ayaat 44, 45 and 47 of Sura 5; This is however not an exhaustive list. (xlii) Right to Notice and Explanation before pronouncement of verdict: Ayat 12 Sura 7; Ayaat 32 through 38 Sura 15 and Ayat 61 Sura 17; and (xliii) Lastly, though in fact the primary principle of Islamic Jurisprudence is the belief that Sovereignty over the entire Universe vests in. Allah Almighty alone: Ayat 54 Sura 7, Ayat 40 Sura 12, Ayat 83 Sura 36 and (xliv) While concluding, for the present, discussion on the guiding principles it will be instructive to refer to Ayat 177 of Chapter 2 which is like a Manifesto for the believers. The translation of the text is as follows:--- "It is not righteousness That ye turn your faces Towards East or West; But it is righteousness1570 To believe in God And the Last Day, And the Angels, And the Book, And the Messengers; To spend of your substance, Out of love for Him, For your kin, For orphans, For the needy, For the wayfarer, For those who ask, And for the ransoming the Captives (prisoners) To be steadfast in prayer, And practice regular charity; To fulfil the contracts Which ye have made And to be firm and patient, In pain (or suffering) And adversity, And throughout All periods of panic. Such are the people 1571 Of truth, the God-fearing." The importance of these values lies in the fact that they occur in the Holy Text. These principles were established by Allah in His own Wisdom. These are absolute and inviolable truths made available to human beings as a Divine gift with the object of evolving balanced societies on this earth. These verities were not known to the denizens of this earth. It is therefore, our bounden duty to up-hold these principles and thereby strengthen relationship with the ever Beneficent and Merciful creator on the one hand and build health relationship among the human beings. We should not loose sight of the basic principle of our faith that Divine Guidance, in the form of Revealed Text and the Sunnah of the Holy Prophet (p.b.u.h.), is the greatest of the varied and continuing blessings given unto human beings on this earth by the creator. These guiding principles/permanent values constitute a veritable mine of knowledge, understanding, wisdom and insight in mundane affairs. The Holy Prophet (p.b.u.h.) had been deputed to enjoin what is good and to forbid the doing of evil. This is now the sacred legacy of the Holy Prophet (p.b.u.h.). It is now a Farz-e-Kifayah. The Holy Qur'an proclaims:-- "And from among you there should be a party who invite (people or men in authority) to do good and enjoin what is right and forbid the wrong, and these it is that shall be successful. Ayat 103 Sura 3 1572 Ayat 157 Sura 7. The Federal Shariat Court like the Council of Islamic Ideology is charged with the duty of upholding the Injunctions of Islam so that the process of Amar bil Maaroof on Nahee anil Munkar is initiated. Improvement in the administration of justice is a matter fully covered by this principle of Holy Qur'an. A reference to the historic Khutba of the Holy Prophet (p.b.u.h.) merits Honourable mention of the conclusion of our discussion on the guiding principles: The Last Sermon "O! People, lend me an attentive ear, for I don't know whether, after this year, I shall ever be amongst you' again. Therefore, listen to what I am saying to you carefully and take these words to those who could not be present here today. "O! People, just as you regard this month, this day, this city as sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods entrusted to you to their rightful owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet your Lord, and that He will indeed reckon your deeds. The Riba transaction of yore are hereby 'forbidden. Beware of Statan for safety of your religion. He has lost all hope that he will ever be able to lead you astray in big things, so beware of following Satan in small things. O ! People, it is true that you have certain rights with regard to your women, but they also have right over you. If they abide by your right then to them belongs the right to be fed and clothed in kindness. Do treat your women well and be kind to them for they are your partners and committed helpers. And it is your right that they neither make friends with any one of whom you do not approve, nor commit adultery. 1573 O ! People, listen to me in earnest, worship Allah, offer prayers five times a day and observe fast during the month of Ramadhan, and give your wealth in Zakat. Perform Hajj if you can afford to. You know that every Muslim is the brother of another Muslim. You are all equal. Nobody has superiority over other except by piety and good action. Remember, one day you will appear before Allah and answer for your deeds. So, beware! ado not astray from the path of righteousness after I am gone. O! People, no Prophet or Apostle will come after me and no new faith will be born. Reason well, therefore, O! People, and understand my words which I convey to you. I leave behind me two things, the Qur'an and my example the Sunnah; and if you stick to both you will never go astray. All those who listen to me shall pass on my words to others and those to others again; and may the last ones understand my words better than those who listen to me directly. Be my witness, Oh Allah, that I have conveyed your Message to Your people." It may be observed here that the analysis of Asbab-e-Nazool (causes of revelation) of a given Injunction may at times be helpful in order to ascertain a) the relationship between Hukm (the Injunction) and Hikmat (reason behind the Injunction) and b) the scope of the Injunction sought to be interpreted or applied to a given contemporary situation. However if the Asbab-e-Nazool cannot be determined the object before a Judge, a legislative body or an Administrator should be the Magasad-e-Shariah because most of the permanent values are in fact the objectives of law. PART B -- THE INTERPRETATIVE FEATURE 173. After scanning through a number of Shariat Petitions moved in this Court, it has been observed that petitioners come out with proposals either to make fresh law in some uncovered field or they propose changes in existing legislative instruments to bring it in tune with the spirit 1574 of Islamic teachings as they understand it. It should be by now clear that the power, jurisdiction and function of the Federal Shariat Court under Article 203-D of the Constitution of Islamic Republic of Pakistan is to "examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and Sunnah of the Holy Prophet, hereinafter referred, to as Injunctions of Islam." The duty "to make recommendations as to the measures for bringing existing laws into conformity with the Injunctions of Islam and the stages by which such measures should be brought into effect;" or "to compile in suitable forms, for the guidance of Majlis-e-Shoora (Parliament) and Provincial Assemblies, such Injunctions of Islam as can be given legislative effect" vests exclusively in the Council of Islamic Ideology as contemplated by Article 230 of the Constitution of Pakistan. The other institution, which has the exclusive jurisdiction to enact laws in the uncovered field and to introduce amendments in existing laws in accordance with the spirit of Islamic teachings or injunctions, is of course the Parliament/Provincial Assemblies as mandated by the Constitution of Pakistan. 174. The Constitution, however, does not empower the Federal Shariat Court to initiatie legislation in conformity with the spirit of Islam. The Court cannot travel beyond its prescribed jurisdiction in view of the age-old maxim Actus Judicarious coram non judice irritus habetur de ministeriali autem a quocnnque provenit return esto = A judicial act without authority is void; not so a ministerial act. Legislation is the function of the Parliament. 175. Article 227(1) of the Constitution lays down that no law shall be enacted which is repugnant to the Injunctions of Islam and the authority to bring the existing laws in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah has been assigned to the legislative bodies and making of recommendations and tendering advice to legislative bodies on requisition is the exclusive preserve of the Council of Islamic Ideology. However we cannot loose sight of the fact that whenever a jurisdiction is conferred upon a court or authority to do a certain thing, it is presumed that the. power to do all those things without which the main jurisdiction cannot be exercised is also given. This is what the old Latin legal Maxim means: Cul Jurisdiction data est, ea quoque concessa csse videnture, sine quibus jurisdictio explcari non potest. 176. The Court is well within its rights to interpret or redefine the undefined words and terms contained in a provision of law and to suggest ways and means of giving effect to its declaration of repugnancy. 1575 It may not be possible for the Federal Shariat Court to initiate or undertake legislation but guidelines for better administration of justice and beneficial legislation can be given at this forum. Reliance may be placed on the case of R.S.N. Co: Ltd V. Commissioner, Chitagong Port reported as PLD 1961 Dacca 412 wherein the Division Bench of the Dacca High Court found support from the well-known legal maxim. Boni Judicis est Ampliare Jurisdictionem: It is the duty of a judge to extend his jurisdiction). Broom's Legal Maxims: 10th Edition, Chapter III Page 44 177. In this view of the matter our basic obligation in these Shariat Petitions and Miscellaneous Applications was to examine whether the impugned law or provision of the law was repugnant to any of the Injunctions of Islam which term also includes the Permanent Values and Guiding Principles enshrined in the Holy text. However, the Federal Shariat Court, without declaring any law to be repugnant to Injunctions of Islam, might as well expresses its opinion on any legal provision or may even approve certain suggestions in the larger interest of justice, fair play and preservation of human rights in the light of Islamic teachings as is clear from Ayaat 1-3 of Sura 103 referred to above. Such an opinion will, however be deemed to be obiter dictum. It will be received by the legislature or Executive as judicial opinion of the Federal Shariat Court in the light of Islamic teachings and in that capacity the obiter will have persuasive value for the relevant authorities which are engrossed in the task of redrafting the Prison Discipline on the basis of experience gained by the Prison Department and also in the light of various recommendations made by different Committees, Commission and Review Boards over the years at domestic level and the legal documents framed at International level. 178. In so far as the powers, jurisdiction and functions of the Federal Shariat Court as envisaged by Article 203 D of the Constitution of the Islamic Republic of Pakistan are concerned, the Federal Shariat Court has been charged with the duty of examining and deciding "question whether or not any law or provision of law is repugnant to the injunctions of Islam". These injunctions, according to Article 203D are only those injunctions which are contained in the "Holy Qur'an, and Sunnah of the Holy Prophet (p.b.u.h.)". The scope of the term Injunctions of Islam as used in Article 203D is therefore restrictive in the sense that the scope of the word Sunnah has been limited to the Sunnah of the Holy Prophet (p.b.u.h.) alone whereas the scope of the term "Injunctions of Islam" as used in Article 227 is comparatively wide because the term used there is Sunnah simplicitor. 1576 179. In this view of the matter we restricted the examination of the impugned laws to the prescribed touchstone and the resultant declaration of legality or otherwise of the various provisions of law was given strictly on the touchstone of (a) a Nass of Holy Qur'an or (b) a Nass from the Sunnah of the Holy Prophet (p.b.u.h.): The Sunnah of the Holy Prophet (p.b.u.h.) can be either Qauli, Failee or Taqriri. However if a law or a provision of law takes away or abridges a basic right of a human being, without reasonable cause, and thereby causes injury to an individual it can be struck down on the principle established in Ayat 31 Sura 17 of Holy Qur'an: "And do not kill any one whom Allah has forbidden except for a just cause ………". Man made law shall be deemed to be violative of Divine Decree if without assigning any reasonable cause it curtails the recognized rights of human beings or it gives unbridled powers to a mundane authority to exercise it against the interests of people. The ultimate authority vests in Allah Almighty alone which authority cannot be challenged. 180. Shariat Miscellaneous Application No.21/I of 1995 also seeks a general survey of laws relating to imprisonment. Roving enquiry into the rightfulness of legal instruments is not the function of this Court. The point of reference is the Injunction of Islam and not what a person feels. Reference in this matter may also be made to the case of House Building Finance Corporation v. Rana Muhammad Sharif and 4 others reported as PLD 2000 SC 760 at page 765 wherein the Court was pleased to observe:--- "It is painful to note that flagrant violation of law was allowed to be committed and perpetuated for all these years which manifests attitude of the people at the helm of affairs of Islamic values and their commitment to enforce Shariah. Such an attitude will have to be curbed if enforcement of Shariah is to be made a living reality. The concerned quarters will have to exhibit necessary vigilance to check and eliminate such flagrant violation of laws. The Shariat Appellate Bench of the Supreme Court of Pakistan can only examine the relevant law in the light of the Holy Qur'an and Sunnah". 181. Consequently Shariat Miscellaneous Application No.21/I of 1995 is hereby dismissed on account of vagueness and ambiguity of the contents of the said application. However this application made a reference to sections 382-B and 401 of the Code of Criminal Procedure which aspect has already been considered in this judgment. PART C LEGAL LITERATURE (ISSUE NO.X) 1577 182. The first notable step in British India, to amend and consolidate laws relating to prisons was taken with the passage of the Prison Act, No.IX of 1894 when it was thought "expedient to amend the law relating to prisons," as per Preamble of the said Act. This was a welcome measure because the Penal Code had already come into force on 6th October 1860 and a uniform legal code was needed to regulate the affairs of prison population. Over a period of time various enactments were enforced for the management of prisons. Commissions and Committee were appointed after the establishment of Pakistan to improve the prison discipline. The consensus rules were ultimately adopted in 19'78 which are known as Pakistan Prison Rules, 1978. 183. The legal literature in the form of books available in the market on Prisons Laws is neither upto date nor free from typing blunders. In order, therefore, to ascertain and find out the correct version of prison legislation we sought assistance of the Inspector General of Prisons, Punjab, to secure an amended upto date and duly corrected version of Pakistan Prison Rules. In this process we procured a comparatively authentic book on Prisons Code (Jail Manual) authored jointly by Dr. Abdul Majeed Aulakh, Retired Principal and Muhammad Masood Khan, Principal CJSTI, 2008 Edition published by Kausar Brothers, Lahore. This Manual was then sent to the Inspector General of Prisons with a desire that amendments, if any, made in the Rules after the publication of this book may also be incorporated and returned to us along with a short history of amended Rules. We received a reply from the Inspector General of Prisons, Punjab vide memo. No.Legal/FSC/2008/20963 dated 28th May, 2008 on the subject Pakistan Prison Code. The said letter is being reproduced as under:--- "Kindly refer to your letter No.F.1 (Addl)/2008-FSC-Lhr dated 24-5-2008 on the subject noted above. (1) It is submitted that subject Pakistan Prisons Code (Jail Manual) has been perused at length. It has been observed that the name/title of the said book i.e. Pakistan Prisons Code (Jail Manual) is not classified/approved by the Federal/Provincial Government. (2) Brief history of the prisons rules is that a Jail Reforms Conference was held in Islamabad in August 1972, under the Chairmanship of Mr. Mahmud Ali the then Minister of State for National Affairs, Overseas Pakistanis and Prisons, Government of Pakistan. It was resolved in that conference that in order to achieve uniformity of discipline and administration in Pakistan Jails a 1578 common Jail Manual be evolved for implementation in all the Provinces. As a result thereof, Mr. Nazir Ahmad Akhtar, the then Inspector General of Prison Punjab, was entrusted with the task of compilation of common Jail Manual in accordance with the recommendations of the Reforms Conference, vide Joint Secretary to Government of Pakistan, National Affairs, Overseas Pakistanis and Prisons Division, Islamabad vide letter No.PW/4/72, dated 19-8-1972. (3) That Mr. Nazir Ahmad Akhtar, the then I.-G. Prisons Punjab after a strenuous and laborious work of more than a year evolved a common Jail Manual for the Provinces. This common Jail Manual was duly discussed in the frequent meetings of Inspectors General of Prisons/Directors of Prisons of all the Provinces and after discussions and arguments certain modifications were included. The final draft was approved for publication by the Federal Government. As Prisons was the Provincial subject the Federal Government in a meeting of the Inspectors General of Prisons/Directors of Prisons of all the Provinces held on 12-4-1976 advised that the Provincial Governments should adopt the draft Manual as far as possible keeping in view their own special conditions and also keeping in mind the fact that there should be uniform treatment of prisoners in all the jails of the Provinces. A difference of treatment of prisoners in one Province affected law and order in the jails in other Provinces and such difference, if any, should be reduced to a minimum. (4) That the common Jail Manual is actually the Pakistan Prison Rules for the superintendence and management of the Prison. These Prison Rules have been approved by the Provincial Government, vide Home Department Memo No.Prs.1(M)15/72; dated 6-1-1977 and. the Jail Manual, 1955 was superseded by the Pakistan Prisons Rules, 1978 vide Home Department letter No. Prs-1(M)15/72 dated 1-10-1978. () It is further submitted .that under section 59 of the Prisons Act, 1894 (XI of 1894) the Provincial Government of the each Province has a prerogative to make amendments in the Pakistan Prisons Rules, 1978 from time to time. Moreover, the book in hand by Dr. Abdul Majeed Aulakh, (Rtd.) Principal Central Jail, Staff Training Institute Lahore is almost upto date except Rule 545-A, which has recently been inserted in the Pakistan Prisons Rules, 1978 to the extent of the Province of Punjab for the performance of Conjugal Rights to those convicted prisoners who's terms of sentence exceeding 05 years". It is on the basis of this duly corrected Jail Manual and constant touch with library of Federal Law 1579 Ministry that we have been able to examine the current Prison Discipline. Some mechanism should be evolved to ensure supply of correct version of laws to the Courts, pile legal community and the litigants as all of them are handicapped without books containing up to-date correct substance of the law. SEGMENT EIGHTEEN OFFENCES AND PUNISHMENTS (SUO MOTU) 184. We took up on our motion the issue of Prison Offences and the Penalties provided for the Prison Offence. Chapter 23 of the Prison Rules deals with Offences and Penalties. A bare perusal of some of these rules show that they are not only harsh in nature but are also humiliating and hence violative of the principle of human dignity espoused by Islamic tenets. We are given to understand that proposals for necessary amendments have been initiated but there is no progress in this respect so far. We are not sure by when the proposed amendments will be incorporated in the Jail Manual after necessary approval. We were not asked by representatives of Federal or Provincial Government to await the result of any amendments that might as well be under consideration of the Government. In this view of the matter we are proceeding' with examination of objectionable provisions contained in Chapter 24. The said disagreeable provisions are being reproduced as under: Rule 583: The following punishment provided in section 46 of the Act shall be considered minor:--- Minor Punishments (6) Cellular confinement for not more than seven days. Explanation 1. Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with but not from sight of other prisoners. 1580 (7) Separate confinement for not more than fourteen days. Explanation. Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour's exercise daily and to have his meals in association with one or more other prisoners. (8) Imposition of handcuffs. Explanation 1. -- Handcuffs which may be imposed by way of punishment for prison offences shall be iron handcuffs (swivel with spring-catch handcuffs) weighing not more than one Lb.. each. Explanation 2. -- Handcuffs may be imposed on the wrists in front by day or by night for a period of not more than twelve hours at a time, with intervals of not less than twelve hours between each period and for not more than four consecutive days or nights. Explanation 3. -- A women or civil prisoner is not liable to the imposition any forms of handcuffs; and (9) Imposition of link fetters will be for more than thirty days. Explanation 1.-- Link fetters shall be composed of a chain and ankle rings. The total weight of such fetters including the ankle rings shall not exceed (1Kgr. 365 Gr) and the chain shall not be less than 61 Cm. in length. Explanation 2.-- A period of at least ten days must elapse after removal of any kind of fetters 1581 imposed as punishment for a prison offences before these can be re-imposed as a punishment for another prison offence, whether of the same kind or not. Explanation 3.-- A women or civil prisoner is not liable to the imposition of any form of fetters. Major Punishments Rule 584.-- The following punishments provided in Section 46 of the Prisons Act, 1894, shall be considered major punishments:- (3) Cellular confinement for a period exceeding seven days. Explanation.-- The maximum period for this punishment is fourteen days and an interval of not less than during the period of confinement must elapse before prisoner is again sentenced to cellular confinement. (4) Separate confinement for a period exceeding fourteen days, but not exceeding three months. Explanation.-- The previous confirmation of the Inspector-General is required when the period exceeds one month.. (5) Link fetters if imposed for more than 30 days but not exceeding three months. (6) Bar fetters. 1582 Explanation 1.--- Bar fetters shall be composed of two iron bars joined together by a welded link and attached to ankle rings. The total weight of such fetters including the ankle rings shall not exceed five lbs. and each bar shall not be less than 50 Cm-8 Mm in length. Explanation 2.--- The maximum period for which bar fetters may be continuously imposed is three months. Note.--- Punishment fetters should be removed when a prisoner wearing the same is to be produced in Court. (7) Whipping. Restriction to whipping Rule 588.--- (i) The punishment of whipping shall be reserved for serious offences Islamic Hudood and, if inflicted, shall be severe enough to act as a real deterrent. The total number of stripes shall never be less than fifteen. In case the Medical Officer certifies that a prisoner is unable to bear this number, some other punishment shall be awarded. (ii) The punishment of whipping shall be inflicted only for mutiny or for conduct seriously affecting the discipline of the prison or for incitement thereto, for serious assaults on public servants or visitor or when other punishments have failed to deter him from commission of offences of specially grave nature. (iii) A record shall be maintained in the Punishment Register as required by Section 51 of the Prisons Act, 1894, of every case punished with whipping. The Superintendent shall promptly submit a special report about the facts of the case and the award of this punishment, to the Inspector-General. 1583 (iv) The punishment of whipping shall not be inflicted on special class prisoners except with the permission of Government. Medical Officer to certify fitness for whipping Rule 589.--- (i) The punishment of whipping shall not be inflicted unless the Medical Officer certifies that the prisoner is in a fit state of health to undergo such punishment. (ii) If during the execution of a sentence of whipping, the Medical Officer certifies that the prisoner is not in a fit state of health to undergo the remainder of the sentence, the whipping shall be finally stopped (Section 394 of the Code of Criminal Procedure, 1898). Mode of inflicting punishment of whipping Rule 590.--- (i) No punishment of whipping shall be inflicted in instalments, or except in the presence of the Superintendent and Medical Officer or Junior Medical Officer. (ii) Whipping shall be inflicted on the buttocks with a light rattan not less than half an inch in diameter, and in the case of prisoners under sixteen years of age, it shall be inflicted, in the way of school discipline , with a lighter rattan, (Section 53, Prisons Act, IX, 1894). Explanation 1.--- To prevent undue laceration of the skin, a piece of thin cloth soaked in some antiseptic solution shall be spread over the prisoner's buttocks during the operation. Such cloth shall be thoroughly washed and afterwards soaked in an antiseptic solution before being again brought into use, so as to obviate the possibility of disease of any kind being conveyed from one prisoner to another. 1584 Explanation 2.--- The drawing stroke which is calculated to lacerate the skin is prohibited. Limits of stripes Rule 591.--- In case of prisoners of over sixteen years of age, such punishment shall not exceed thirty stripes, and in case of prisoners under sixteen years of age, it shall not exceed fifteen stripes. Act VII of 1996 was introduced on 15 April 1996 to abolish and restrict the punishment of whipping. Sections 2 and 3 of the said Act read as follows:- "2. Definition.-- In this Act, unless there is anything repugnant in the subject or context, the expression "hadd" means the punishment of crimes laid down in the Holy Qur'an and Sunnah. 3. Abolition of punishment of whipping.-- Except in cases where the punishment of whipping is provided for as hadd, the sentence of whipping provided under any law, rule or regulation for the time being in force shall stand abolished: "Provided that where, on the commencement of this Act, the sentence of whipping awarded by any Court or Tribunal has not been executed, such sentence of whipping shall stand remitted." 185. It is therefore evident that rules permit the Superintendent to impose penalty by way of (a) cellular confinement, (b) imposition of link bars (c) imposition of handcuffs and (d) imposition of link fetters are part of existing Prison Discipline. If a prisoner is handcuffed or is in fetters within a cell as a consequence of the award of punishment by the Superintendent, for violating a prison offence, then he is precluded from performing ablution, offering compulsory prayers five times a day, recitation of Holy Qur'an, (c) reading and writing, (d) and is also handicapped in answering the call of nature apart from (e) facing undue difficulty in performing Tahaarat. This practice is violative of a large number of injunctions of Holy 1585 Qur'an and Sunnah which need not be cited as they are numerous and well known. 186. Imam Muslim quotes a tradition on the authority of Abu Huraira RA wherein it is stated that the Holy Prophet (p.b.u.h.) strictly prohibited the believers from transgressing or treating another person with contempt or dishonouring him. Even to consider another person to be insignificant is a sin according to this tradition. We have already referred to a tradition in this judgment wherein it is stated that every human being is answerable to Allah for the manner in which he treats those who are under his control and supervision. Ayat 11 of Sura 49 (Al-Hujurat) stipulate that addressing another human being, man or woman in a debasing manner should be scrupulously avoided. The translation of the Ayat is as follows:--- "(10) Surely the believers are none but brothers unto one another, so set things right between your brothers, and have fear of Allah that you may be shown mercy. (11) Believers, let not a group (of men) scoff at another group, it may well be that the latter ( a t whom they scoff) are better than they; nor let a group of women scoff at another group, it may well be that the latter are better than they. And do not taunt one another, nor revile one another by nicknames. It is an evil thing to gain notoriety for ungodliness after belief. In this background it is clear that the provisions in the Jail Manual, being contrary to the letter and spirit of the aforesaid Injunctions of Islam, have a debasing, demeaning and a negative effect on the prisoners. It violates human dignity. No right of appeal is granted against such an inhuman penalty. Consequently we declare sub-Rules (6), (7), (8), (9) of Rule 583; sub-Rules (3), (4), (5), (6) and (7) of Rule 584, Rules 588; 589, 590 and Rule 591 in entirety contained in chapter 23 of Prison v Rules to be violative of Ayat 43, 110 of Sura 2; Ayat 43 of Sura 4 and v Ayat 6 of Sura 5 as well as Ayat 1 Sura 58 (Al-Mujadalah) of the Holy Qur'an. This declaration will take effect from 1-12-2009. It is hoped that necessary provisions will be incorporated and a right of appeal before an independent tribunal will also be provided to the accused prisoner against major offences. The Inspector General' of Prisons of each Province shall intimate in writing, through the Registrar of this Court, by 31-12-2009, about the grant of right of appeal. In case right of appeal is not granted the case will be reviewed in February 2010 to examine the desirability of declaring the entire Chapter 23 of the Pakistan Prison Rules, 1978 as violative of Injunctions of Islam and the judicial precedents. 1586 187. We cannot help observing that the right of appeal against the penalty imposed upon a prisoner by Jail authorities for alleged violation of prison offence was intentionally not conceded to the prisoner even though the Federal Shariat Court in re The Civil Servants Act (LXXI of 1973) reported as PLD 1984 FSC 34 as well as in the case of Dr. Muhammad Aslam Khakhi and others v. Government of Punjab and others PLD 2005 FSC 3 had, over a period of two decades, held that right of appeal is inherent in Islamic system of administration of Justice. Another precedent of the Apex Court, Pakistan v. Public At Large reported as PLD 1987 SC 304 may also be perused on this point. This jaundiced and inane attitude of administration towards detenues is an instance of clear negation of Article 37 of the Constitution as well. 188. The Provincial Governments should therefore make provision for incorporating a right of appeal in Chapter 23 of the Pakistan Prison Rules as well in cases involving major penalties or where more than one penalty is sought' to be imposed. The forum of appeal should be the Sessions Judge of the District in whose territorial jurisdiction the penalty is imposed. The rule should also provide that the punishment will not be executed till the disposal of appeal. By providing a legal remedy by way of appeal, the authority awarding the penalty will be under an obligation to frame a charge, record evidence and write a well reasoned order after recording statement of the answering respondent. SEGMENT NINETEEN PRISONER'S PROPERTY 189. In this part we would take up, on our motion, examination of Rule 84 occurring in Chapter 4 entitled "Prisoners Property" in the Pakistan Prison Rules. The rule reads as follows:--- "Rule 84.-- Cheques may be issued by the prisoners while confined in prison on the following conditions:- (a) A cheque for not more than 5000 rupees will be allowed at one time once a week for maintenance of the dependents of the prisoner. 1587 (b) The signature of the prisoner will be duly attested by the Superintendent. (c) If a cheque for more than 5000 rupees is required at any time, the relatives of the prisoners should get a written permission from the [District Coordination Officer] (d) On no account a prisoner should be allowed to run a business by issuing cheques during his term of imprisonment. (e) The cheque book shall remain in the custody of the Deputy Superintendent. We consider these provisions to be violative of the various Injunctions of Islam as enumerated in Ayat 60, 168, 172 and 187 of Chapter 2; Ayaat 4 and 88 of Sura 5; Ayaat 141-142 of Sura 6; Ayat 160 Sura 7; Ayat 14 Sura 16; Ayat 81 Sura 20; ,Ayat 28 Sura 20 and Ayat 15 Sura 34 of Holy Qur'an which makes it abundantly clear that every person is entitled to use his income in any lawful pursuit /occupation/trade that he likes. It is also the legal responsibility of every believer to defray the expenses of his wife and children. No law or a provision of law can abridge or adversely affect the legal responsibility of a prisoner to maintain his family. The cheque book of a prisoner may be retained in safe custody and in order to ensure the genuineness of the cheque issued by a prisoner, the Superintendent or Deputy Superintendent of prison can be authorized to counter sign the cheque issued by the prisoner but the condition of seeking permission from District Co-ordination Officer for an amount exceeding Rs.5,000, as visualized by clause (c) of Rule 84, is an unwarranted clog on the exercise of a right which, according to the Holy Qur'an is an innate ingredient of the legal capacity of an adult. However it should be borne in mind that cheques can be issued as and when the prisoner wants provided the amount of money lying in the Bank is not subject-matter of any offence like cheating, theft, burglary or some other illicit means. An accused or a convict involved in other offences would be entitled to the concession of issuing cheques or giving advice to the financial Institution/Insurance Companies. 190. In this view of the. matter we declare- rule 84 to be violative of the Injunctions of Islam because this Rule, instead of providing facilities creates difficulties for the internees which hurdle in itself is violative also of the already quoted tradition of the Holy Prophet (p.b.u.h.) in which the Muslims have been directed to create conditions which make things easy for the people rather than difficult. It is 1588 violative of the Principle of Usar and Yusar as enunciated in Ayat 185 Sura 2 and Ayaat 5 and 6 of Sura 94 of the Holy Qur'an. This provision is an unnecessary obstacle in earning Rizk-e-Halal which is the fundamental right of every human being. The Holy Qur'an exhorts believers to earn livelihood through legitimate means. This provision shall cease to have effect from 1.12.2009 during which period necessary amendments or deletion may be made in Chapter 4 of the Prison Rules. SEGMENT TWENTY PART-A CLOSING REMARKS 191. In this segment we will consider the following issues. A. Deficiencies of Prison Manual B. Uncompensated Labour C. The Agreed Upon Matters. A. DEFICIENCIES OF PRISON MANUAL 192. Before we part with this case we cannot help observing, though painfully, that the prevailing prison discipline lacks some basic requirements. Drastic amendments are needed to make the existing Jail Manual a real human friendly document. We have noticed inter-alia the following aberrations in the 1589 prevalent prison discipline:--- 1. Absence of Reformatory, Correctional and Rehabilitative schedule; 2. Malnutrition of prisoners. 3. Continuous exposure of the prisoner to hot and cold weather throughout the period of detention. 4. The detenue has no option but to live in unhygienic atmosphere without adequate medical aid during the entire detention period. 5. Indifference of Prison Staff towards the religious obligations of prisoners; 6. Uncompensated labour and that too beyond eight hours as contemplated by Rule 812 (barring the Province of Sindh and - N.-W.F.P.). 7. Ardous parole system; 8. Tardy remission system; 9. Complete denial of conjugal visits; 10. Absence of judicial supervision over prisons; 11. Humiliating procedure of interviews; 12. Delayed disposal of trials as well as appeals and mercy petitions. 13. Highly controlled and restricted communication with outer world even during emergencies; 14. Inability to seek judicial remedy against punishments awarded by prison authorities; 15. Denial of facility to regulate private business through cheques. 16. Exploitation of prisoners at every step; 17. Humiliation of the prisoner from the time a prisoner enters the prison house; 18. Insulting Parade system; 1590 19. Corrupt practices. 193. Efforts should therefore be made by policy makers to rationalize the penal system with particular reference to prisons, prisoners, and prison discipline. Prisons are being used only for the purpose of awarding physical pain and punishment in addition to mental torture. The theory that prison regime should be punitive and humiliating must surrender now in favour of a human friendly system where prison should be developed into institutions for shaping prisoners into responsible and responsive citizens. Mechanical infliction of imprisonment as a mode of standardized punishment irrespective of the socio-economic conditions of an offender has for sure, been a completely unsuccessful experience in South Asia during the last 115 years of the prison history starting from the first prison legislative instrument, namely: The Prisons Act, 1894. It is also a disturbing experience that a vast majority of prisoners belongs to the poor section of our society. This hard reality of our social life poses a challenge to the administration of justice in Pakistan. B. UNCOMPENSATED LABOUR 194. The element of uncompensated labour is an extremely regrettable feature of Prison history in the sub-continent. Over a period of decades the prison population has been continually exploited by the white rulers who had virtually converted the local prisons into concentration camps. All huge projects like digging of a complicated canal system spread over hundreds of kilometers, the raising of jungles; constructing secretariats and other structures for official use was the un-compensated contribution of generations of prisoners. If the working hours put in by succeeding generation of detenues are converted into wages payable in cash .extending over these long decades, it will reveal a staggering figure. The same unfair trend and high handedness is persisting unabated notwithstanding the fact that this practice violates the Injunction of Islam. The Prison officialdom must realize that compensation for labour is as vital as is the monthly salary of any government servant. Steps should therefore be taken to initiate a judicious system in this neglected field. Concern must substitute apathy. 195. Section 53 of Pakistan Penal Code, 1860 contemplates ten types of punishments to which offenders are liable. The Eighth category is imprisonment which is of two descriptions, namely: (i) Rigorous i.e. with hard labour; 1591 (ii) Simple; According to Appendix-A of the Pakistan Prisons Rules 1978 rigorous imprisonment is further classified as under:- (i) Hard labour; (ii) Medium labour; (iii) Light labour Each classification contains a list of various kinds of labour to be undertaken by a prisoner in that category. Under rule 812 of Pakistan Prisons Rules 1978 read with section 35 of the Prisons Act, 1894 no prisoner shall be asked to undergo labour for more than nine hours on any day except in emergencies with the written sanction of the Central Jail Superintendent. It is worth noticing that the concept of monetary compensation for hard, medium or soft labour undertaken by prisoners during imprisonment is alien to prison discipline. However under Rule 199'a prisoner, sentenced for a period of four months or more may by good conduct and industry, become eligible for release when a portion of his sentence ordinarily not exceeding one-third of the whole sentence has yet to run. 196. Ordinarily remission to be awarded to prisoners is on the following scales. (a) Two days per month for thorough good conduct and scrupulous attention to all prison regulation. 1592 (b) Three days per month for industry and due performance of the prescribed daily task. Ordinary remission may also be awarded to a prisoner, other than a prisoner employed on prison service, as specified in the table. Compensation in cash is never paid to any convicted prisoner in lieu of the hard labour put in by him. Prisoners are at best entitled to paltry remissions alone. However, in cases where Prison industry is leased out to private sector/contractor, the compensation in cash can be given to a prisoner for the hard labour which however does not exceed Rs. 15/- per day. However in the case of carpet weaving fields, a sum of Rs.40/- per prisoner per day may be sanctioned for Central Jail Faisalabad. Payment of this meager amount is clear exploitation. This sort of treatment is violative of: (i) Ayat 188 Sura 2, (ii) Ayaat 29, 161 Sura 4 (iii) Ayat 34, Sura 9 (iv) Ayat 70, Sura 39 (v) Ayat 9, Sura 53 and (vi) Ayat 90, Sura 16. Reference to Sunnah would also be useful. In section No.826 Chapter 533 Book of Ijara, Sahih Bukhari, it is reported on the strength of Abu Huraira R.A. that the Holy Prophet (p.b.u.h.) will oppose three categories of persons firstly those who, while making a promise, used his name as a surety, secondly those who sell a free man as a slave and thirdly those who exacted work from a worker but did not pay him his wages. 197. It will not be enough to abolish the system of uncompensated labour but steps will have to be taken to devise a methodology whereby uninterrupted work is provided to the prisoners and payments for the work done is also made regularly. 198. Such an exercise would not be without a policy decision at Government level and its incorporation in the Prison Rules. It could be a three pronged strategy. The first step would be to make a table of various types of jobs that could be undertaken by prisoners within the prison precincts. The purpose of this table would be to allocate work to each according to his proclivity. The wages of each category of 1593 work to be fixed according to, prevailing market rates. The second step would consist of dividing the wages into three parts. One portion, not more than ten percent of monthly income, could be deposited in his name with the Prison Canteen, to enable him to defray expenses of personal nature. Forty percent of the monthly income could be paid to the wife or children of the accused and in case he has no dependent then the ninety percent of the monthly income could be invested in the Islamic Insurance so that the prisoner gets a handsome amount at the time of his release to help him enter the mundane lifecycle with confidence. The third step could be a scheme wherein the Government compensates the complainant or aggrieved person, at the time of the verdict of the last Court and then recover the same amount from the amount of money accumulated with the Insurance company. C. THE AGREED UPON ISSUES 199. A general discussion during the course of arguments took place on 21-5-2008 on the ten consensus issues framed by this Court on 8-2-2008. These issues have already been noted in the earlier part of this Judgment. The general agreement of the learned counsel of all the parties on these issues is reflected in the following terms:- (i) Facilities be provided to married prisoners to perform conjugal rights within and without the prison precincts depending upon the nature and type of convict/prisoner and/or his capacity to provide satisfactory sureties for his return. The representative of Prison Department brought to our notice an amendment effected in the Pakistan Prison Rule by Government of the Punjab with effect from 03 May 2007. Rule 545-A Special Meetings was added. Similarly the Government of NWFP vide Notification printed in Gazette on 5.5.2005. (ii) The general superintendence of the prison precincts should, from the administrative point of view, be under the control of male staff while female staff should perform general duties in the prison cells where female prisoners are lodged. This is in fact the prevalent practice. However extra care should be taken in so far as female and juvenile prisoners are concerned. (iii) The question of classification of prisoners into A, B and C class will be determined in this judgment after a detailed discussion in the light of Islamic Injunctions and judicial decisions. 1594 (iv) Grant of remissions of sentence on special occasions is a prerogative of the Government which discretion cannot be controlled by judicial decisions. The Courts can only make observations and identify certain guiding principles for the ad 1595 P L D 2010 Federal Shariat Court 229 Present: Agha Rafiq Ahmed Khan, C. J., Syed Afzal Haider and Shahzado Shaikh, JJ MOHTARMA BENAZIR BHUTTO and another---Petitioners Versus FEDERATION OF PAKISTAN through Secretary Finance Islamabad--Respondent 1596 Shariat Petition No.1/K of 2002, decided on 15th April, 2010. (a) Constitution of Pakistan (1973)------Arts. 203-D & 270-A---Power and jurisdiction of Federal Shariat Court--Scope---Fact that certain instruments were mentioned in Seventh Schedule of the Constitution in terms of Art. 270-A of the Constitution would not preclude the determination of the List on the touchstone of Art. 203-D of the Constitution to examine and decide the question whether or not the provisions under challenge were repugnant to the Injunctions of Islam as laid down in the Holy Quran and Sunnah---Such a proposition was also ascertainable from the Preamble of the Constitution. 1597 (b) Constitution of Pakistan (1973)------Preamble---Oath under the Constitution--Significance---Ruling elite takes oath under the Constitution to preserve its sanctity--One who takes oath to preserve and protect the Constitution cannot break it to the detriment of entire nation; it is not like breaking the oath of an individual whose atonement is made possible by Islamic Injunctions---Constitution does not provide any expiation for the transgressors who were under oath to preserve it ; Constitution declares it to be a very serious offence. (c) Constitution of Pakistan (1973)--- 1598 ----Arts. 4 & 5---Interpretation of Arts. 4 & 5 of the Constitution---Articles 4 & 5 of the Constitution make it clear that deviation from law has not to be countenanced; this is an assurance to the people of Pakistan that people in authority shall treat them in accordance with law and each one is bound by these stipulations of the Constitution. (d) Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) Order [P.O. 4 of 1978]------Preamble---Zulifqar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) (Amendment) Order [P.O. 6 of 1979], Preamble---Martial Law Order, 1979 [By Martial Law Administrator Zone No.26---Martial Law Order, 1977 [By Chief 1599 Martial Law Administrator] No.21--Constitution of Pakistan (1973), Arts. 2-A, 4, 12, 23, 24, 25 & 203-D---Trusts Act (II of 1882), Chapters III & IV---Civil Procedure Code (V of 1908), S.92---Repugnancy to Injunctions of Islam---Stipulated Presidential Orders/Martial Law Orders were violative of the Injunctions of Islam five Maqasid-eShariah and various Articles including Arts. 2A, 4, 23 & 25 of the Constitution; because the name of the Trust was altered; the objectives underwent a change; the administrative machinery was substituted for the original trustees; all the trustees, who were affected by the Martial Law Orders were at the time of promulgation of such Orders were women folk; the intrinsic rights of the appropriator were hacked without lawful authority and the wishes of the dedicators as regards the appointment of a Mutwalli i.e. Managing Trustee had 1600 altogether been altered and that impugned Martial Law Orders, put into effect by force, denied to the trustees, the rights and privileges available to them under Chapters III & IV of the Trusts Act, 1882 and S.92, C.P.C. without following the principles of natural justice or principles of legality-Impugned Martial Orders were consequently of no legal effect as these instruments suffered on account of infirmities---Held, all the steps taken, actions suffered, and all orders passed by any court, tribunal or any authority including Martial Law Establishment, under any of the impugned Orders were declared repugnant to the Injunctions of Islam, and thus never to have existed in the eyes of law and resultantly of no legal effect---Presumption would be that the situation that prevailed immediately before 17th October, 1977 i.e. the date of issuance of Martial Law Order No.21 of 1601 1977 was still continuing---Martial Law Order No.21 dated 17th October, 1977; Martial Law Order No.26 dated 28th September, 1977 issued by Martial Law Administrator Zone "C"; President's Order No.4 of 1978, dated 26th March, 1978 and President's Order 6 of 1979, dated 28th February, 1979 were in entirety repugnant to the Injunctions of Islam---Present decision regarding the afore-mentioned impugned Martial Law Orders shall take effect from the date of announcement of the judgment/decision i.e. 15-4-2010. Holy Qur'an Ayat 251 Sura 2, Al-Baqra; Ayat 38 of Sura 42 Ash Shoora); Ayat 159,Sura 3 Ale Imran, Ayat 1 through 5 Sura 55,Ar-Rahman; Ayat 83 Sura 2 AlBaqra; Ayat 110 Sura 3 Ale Imran; Ayat 67 Sura 9 Al-Tawbah; Ayat 1 through 4 Sura 1602 96 Al-Alaq; Ayat 149 Sura 4 Al-Nisa; Ayat 1 Sura 58 Al-Mujadalah; Ayat 71 Sura 17 Bani Israel; Ayat 29 of Sura 4; Ayat 286 Sura 2 Al-Baqra; Ayat No.233 Sura 2 Al Baqra; Ayat 152 Sura 6 Al-An'am; Ayat 42 Sura 7 Al-Al'raf; Ayat 38 Sura8, Al-Anfal; Ayat 15 Sura 17, Bani Israel; Ayat 59 Sura 28 Al-Qasas;; Ayat 17 Sura 13 Al-Ra'd; Ayat 4. Sura 48 Muhammad; Muhammad Aslam Khaki v. State PLD 2010 FSC 1 and Ayat 220 Sura 2 Al-Baqra ref. (e) Islamic Jurisprudence------Administration of justice---Appeal, right of---Scope---Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest---Every such a person has a right of representation; he is 1603 free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent Tribunal---Such person under no circumstances be stopped from exercising his basic rights---Principles. Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest. Every aggrieved person has a right of representation. He is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent tribunal. He can, under no circumstances be stopped from exercising his basic right. 1604 There exists in the aggrieved person the unfettered right to lodge a protest or prefer an appeal before a higher authority with the object of seeking redressal of grievance. The authority hearing the appeal is under obligation to decide the same. The arbiter is required to give due weight to violation of human rights and human dignity. The authority may, where necessary, impose a penalty upon the violator of human rights. (reference Ayat No.4 of Sura 58 AlMujadilah). Even a law can be amended/repealed on account of a protest. The right of an individual to initiate proceedings cannot be circumscribed. The reference to Divine attribute of Hearing and Seeing for well over four score times in Holy Qur'an shows that the right of an aggrieved person to lodge protest, appeal or 1605 representation against the wrong doer before a higher tribunal, i.e. a person other than the one whose order is to be challenged has Divine sanction. The repeated reminders by Holy Qur'an that Allah is Hearing and Seeing is, on one hand, a permission to an injured soul to initiate proceedings and on the other hand a warning to the adjudicator that Allah constantly watches the way matters are being adjudicated upon. These oft-repeated attributes of Alllah i.e. Seeing and Hearing, mentioned in the Holy Quran are designed to act as guarantees. In other words the rights and freedoms are justiciable. The Constitution as well as legal instruments in force in Pakistan, provide ample remedies to aggrieved persons by way of appeals, revisions, reviews. The Constitution 1606 mandates that the Supreme Court, Federal Shariat Court and the High Courts shall have power to exercise original and Suo Motu jurisdiction, and thereby provide relief to aggrieved persons. The superior judiciary has, while interpreting various provisions of law held that right of appeal, representation, show-cause notice is inherent 'in Islamic teachings. An instrument, having the force of law, which purportedly denies the right of appeal etc. or which does not provide for a show-cause notice will be deemed to be violative of the Injunctions of Islam. Islam has conferred upon human beings the freedom of expression. Grievances have to be redressed. Any bar on this right is negation of the Divine principle of human dignity. 1607 Human freedom has thus been guaranteed by the Creator Himself for all times to come. Jamay Tirmazi Vol. 1, Tradition No.1363; Holy Quran Ayat 9 of Sura 33, AlMu'minun; Ayat 148 Sura 4 Al-Nisa, Ayat 1 Sura 58 Al-Mujadilah; Pakistan and others v. Public at Large and others PLD 1987 Supreme Court 304; Pakistan through Secretary Ministry of Defence v. the General Public PLD 1989 SC 6; In re: The Civil Servants Act, (LXXI of 1973) PLD 1984 FSC 34; Messrs Sadiq Brothers vs. Appellate Additional Commissioner, Income Tax/Wealth Tax, Rawalpindi and another 2004 PTD 122; Dr. Muhammad Aslam Khaki and others vs. Government of Punjab and others PLD 2005 FSC 3; Nahjul Balega as Khutba No.86 by Imam Ali R.A. the Forth Caliph and Ayat 257 of Sura 2, Al1608 Baqra ref. (f) Islamic Jurisprudence------Fundamental rights---Freedom of expression---Islam has conferred upon human beings the freedom of expression--Grievances have to be redressed---Any bar on such right is negation of Divine principle of human dignity---Human freedom has thus been guaranteed by the Creator Himself for all times to come. (g) Islamic jurisprudence-----Administration of justice---Superamacy of rule of law---Quran contains stern 1609 warning for all those who are charged with the onerous duty of regulating the affairs of State or administering justice among people--Arbiter cannot deviate from the principles laid down in the revelations; his decisions must be in accord with the revealed rules--People should be judged by means of precepts and values ordained by Quran for human guidance. Holy Qur'an Ayaat 44, 45, 47 of Sura 5, AlMaida; Ayat 42 Sura 5; Ayat 105 of Sura 4 Al-Nisa, Ayat 135, Sura 4 Al-Nisa; Ayat 90 Sura 16 Al-Nahl; Ayat 8 Sura 5 Al-Maida; Ayat 152 Sura 6 Al-Anaam; Ayat 26; Sura 38, Suad; Ayat 15 Sura 42, Al-Shura; Ayat 29 Sura 7, Al-Aaraf; Ayat 42 Sura 5, AlMaida; Ayat 9, Sura 49, Al-Hujraat; Ayat 9, Sura 55 al-Rehman; Ayat 126 Sura 16, AlNahl; Tradition 1962 Vol. 3, Bukhari; 1610 Khutba Hujjatual Wida; Ayat 153 Sura 6; Ayat 29 Sura 7; Ayat 135 Sura 4 and Hadith No.1363 Vol. 1,Jame Tirmazi and Ayat 50 Sura 5 Al-Maida ref. (h) Islamic jurisprudence------Acquisition of property---Acquiring assets, interests, properties of others without lawful means---Mandate---Modes of acquisition of property other than the accepted customary or legally permissible methods is termed as batil which is antonym of Haq i.e. truth---Thing which causes mischief would be batil. Al-Qur'an Ayat 188 Sura 2 Al-Baqra and Ayat 29, Sura 4, Al-Nisa ref. 1611 (i) Islamic Jurisprudence-----Legal capacity of an adult---Scope. According to Islamic Jurisprudence the legal capacity of an adult is complete after he/she has attained puberty as well as Rushd. This capacity is the ability or fitness to acquire and exercise rights and to accept and perform corresponding duties and obligations. Both the capacities i.e., acceptance or acquisition of rights and the performance of duties is termed in Islamic Law as Ahliyyat al wajub and Ahliyyat al ada respectively. This legal capacity or Dhimma, is complete and has legal effect. It means the capacity to sue and be sued. It means the capacity to lodge protest or file an 1612 appeal as well the capacity of being called upon to answer a charge. It is a status without which an individual cannot be treated as a legal, responsible entity. It is a Divine gift and it cannot be limited by a unilateral order of any mundane authoritywithout recourse to Injunctions of Islam. Any such attempt would be a challenge to the Creator who conferred not only dignity upon human beings but also clothed them with legal capacity. It is on account of this legal capacity that a human being becomes a Mukallif i.e. an obligee and thus a subject of Khitab i.e. communication from his Lord. A person having legal capacity is answerable to God and no one has the authority to deny a person of the status conferred upon him by his Creator. The action of Chief Martial Administrator 1613 whereby he denied through a special Order the petitioners their rights to supervise and control the Trust without recourse to the provisions of law, and thus the act of issuance of Martial Law Order debarring the courts of Pakistan from providing legal remedy to the petitioners is violative of the principle of Legal Capacity. Extraordinary Power of an individual is death knell of human freedom. Absolute power vests in Allah Almighty alone. (j) Islamic Jurisprudence------Principle of Adam Harj i.e. removal of hardship---Avoidance of hardship is a salient feature of the Islamic teachings. 1614 Al-Qur'an Ayat 6 Sura 5 al-Ma'idah and Ayat 78, Sura 22 Al-Hajj ref. (k) Islamic Jurisprudence------Principle of Taiseer i.e. ease has provided necessary means to encourage flexibility and development of law for the solution of ever increasing human problems. Al-Qur'an Ayat 184 Sura 2 Al-Baqra; Ayat 185, Sura 2, Al-Baqra; Ayat 196, Sura 2, Al-Baqra; Ayat 280 Sura 2, Al-Baqra; Ayat 92, Sura 4,Al-Nisa; Ayat 157,Sura 7,AlA'raf; Ayat 4 Sura 58, Al-Mujadalah; Ayaat 19, 20, Sura 80, Abasa; Ayat 55 Sura 39, Al-Zumr. 1615 (l) Islamic Jurisprudence------Principle of Takhfeef i.e. reduction of burden---Allah wants to lighten your burdens, for man was created weak. Al-Qur'an Ayat 28, Sura 4, Al-Nisa and Tradition No.630 Vol.5, Bukhari ref. (m) Islamic Jurisprudence------Trust---Even a revolutionary change of government will not alter the existing right of a trustee to continue retaining the legal office of trusteeship which office shall remain with the progeny of the trustee till eternity. 1616 (n) Constitution of Pakistan (1973)------Art. 203 & Seventh Schedule--Jurisdiction of Federal Shariat Court--Scope---Federal Shariat Court has the jurisdiction to examine any legal instrument on the touchstone of Injunctions of Islam--Principles. (o) Islamic Jurisprudence------Legislation---Beneficent legislation---No legislation or even an executive order which is not for the benefit of people can hold field---Principles. 1617 Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref. (p) Islamic Jurisprudence------Administration of justice---Legislation--If the law giver or the arbiter happens to be a person who is either personally aggrieved by the opposite party or who has played a successful part in bringing about a change in the government through revolution or conquest to the determent of the opposite party, he shall then neither be an arbiter in the cause of his opponents nor shall he pass any order to the detriment of his adversaries. Al-Qur'an Ayat 17 Sura 13, Al-Ra'd and Ayat 4, Sura 48 Muhammad ref. 1618 (q) Constitution of Pakistan (1973)------Part. VII, Ch.3-A [Arts. 203-A to 203-J]--Shariat Appellate Bench of the Supreme Court and the Federal Shariat Court have the jurisdiction and powers to examine Martial Law Regulations and to decide whether or not the provisions thereof are repugnant to the Injunctions of Islam. Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others reported as PLD 1990 SC 99 ref. (r) Constitution of Pakistan (1973)--- 1619 ----Art. 203-D---Repugnancy to Injunctions of Islam---Powers of Federal Shariat Court--Scope---Law of limitation---Applicability--Significant feature of the jurisdiction of Federal Shariat Court in that law of limitation does no apply to such proceedings. Al-Qur'an Ayaat 62 and 63 fo Sura 4, AlNisa and Ayat 114 of Sura 11 Hud ref. (s) Constitution of Pakistan (1973)------Art. 203-D---Examination of laws by the Federal Shariat Court--Primary object illustrated. 1620 Barrister Kamal Azfar, Syed Riaz-ul-Hassan Gillani, Advocate, Sardar Zulqarnain, Advocate and Rafey Altaf, Advocate for Petitioners. Rizwan Ahmed Siddiqui, Deputy AttorneyGeneal, Aamir Raza Naqvi, Deputy Attorney-General, Muhammad Ashraf Khan Mughal, Deputy Attorney-General, Sardar Abdul Majeed, Advocate, Muhammad Nazir Abbasi, Standing Counsel, Tariq Ali, Advocate, Fareed-ul-Hassan, A.A.G, Sindh, Syed Sajid Ali, Joint Admn Officer Pak P.W.D. Ministry of Housing and Works, Karachi, Khalid Tepu Rana, Solicitor, Muhammad Arif Chaudhary, Federal Inspector of Drugs, M/o Health, Muhammad Aslam Shaikh, Joint Admn Officer M/O Housing and Works and Ihsan Karim, Audit Officer, Auditor General Office for Federal 1621 Government. Dr. Sajid-ur-Rehman Jurisconsult. Siddiqui for Dates of hearing: 23-10-2007, 12-2-2008, 26-3-2008, 9-4-208, 22-10-2008, 20-11-208, 6-1-2009, 13-1-2009, 11-3-2009, 10-4-2009, 7-4-2010. JUDGMENT SYED AFZAL HAIDER, J. - This petition was moved in this Court in March, 2002. It remained dormant till pre-admission notice was issued to the Federal Government on 1622 23-10-2007. The petition was heard at Karachi and Islamabad on 11 occasions. Lastly it was heard at the principle seat of this Court on 15-4-2010 when a short order allowing the petition was announced after the contending parties had concluded their arguments. This judgment proceeds to give reasons for the said short order whereby the instant petition was accepted and the impugned Martial Law Orders were declared repugnant to the Injunctions of Islam. FACTUAL BACKGROUND 2. Begum Nusrat Bhutto, widow of late Prime Minister Zulfiqar Ali Bhutto along with her daughter Mohtarama Benazir Bhutto, the twice elected Prime Minister of 1623 Pakistan and her son Mir Murtaza Bhutto founded a Trust with the name and title of "Peoples Foundation" on 8th August, 1974. It was duly registered as required by law. The three founders were the trustees while petitioner No.1 was also Chairperson of the Trust. 3. The said Trust was established with clearcut objectives as indicated in the Deed attached to the petition. The affairs of the Trust were being managed smoothly by the Trustees who were performing their stipulated rights and obligation in accordance with the procedure laid down in the Deed. The Trustees in due course received donations including a contribution from the Head of State of United Arab Emirates to advance the purposes of the trust. 1624 4. The petitioners, in paragraphs 06 through 14 of the Shariat Petition have detailed the background of the misery that befell them and their Trust on account of promulgation of Martial Law Orders and the consequents efforts they undertook to seek redress from 1977 October onwards. The said paragraphs are being reproduced verbatim:"6. That the Trustees were exercising their obligations freely and correctly. With untiring efforts the Trustees succeeded in building a People's Foundation building from the funds donated from time to time. A modern press known as the Peoples Foundation Trust was established. One newspaper and one periodical was being printed in the said press for the Trust and countless 1625 other publications also availed of the said press. The accounts of the Trust were duly audited to the satisfaction of the concerned authorities. All payments were made by cheque and received by cheque with supporting vouchers. The CBR extended the annual permission under section 15-D of the Income Tax Act, 1922 being satisfied with the correctness of the accounts and operations of the Trust. No allegation of breach of Trust on the part of the Trustees was ever made nor could have been made. 7. That the petitioners have certain statutory duties and obligations as are prescribed in the Trust Act, 1882 with regard to the Trust. The manner of discharge is also prescribed in the Trust 1626 Deed. Furthermore, in case any person wishes to proceed against the Trust with regard to inquiries into its accounts or the removal of Trustees the procedure prescribed in section 92 of the Code of Civil Procedure has to be followed and the permission of the Advocate-General obtained. 8. General Zia-ul-Haq led a coup dated on 5th July, 1977. The Bank accounts of the Trust and its associates with UBL and National Bank of Pakistan were frozen under MLO 26 issued by the MLA Zone C, on 28th September, 1977. "Copies of MLO 21 of CMLA and MLO 26 of Zone C are annexed hereto and marked as Annexure "C & D". 1627 9. That a petition was filed in the Honourable High Court of Sindh bearing No. 501- of 1977 which was heard and disposed of on 27th February, 1985. Copy of the said amended petition alongwith judgment passed thereon are enclosed hereto and marked as Annexure "E & F". 10. That while the said petition was pending hearing before this Honourable Court, the Chief Martial Law Administrator respondent No.4 on 17401977 issued Martial Law Order 21 which runs as follows:- 1628 "1. The Board of Trustees of the People's Foundation Trust and the Board of Directors of every institution connected therewith shall stand suspended forthwith and every member of the said Board of Directors of every such institution shall cease to function as such. 2. All powers and functions of the Board of Trustees and of the Board of Directors of every institution referred to in paragraph 1 shall vest in and be exercised and performed by the Chief Martial Law Administrator by such other person or body of persons as may be appointed by him in this behalf." 11. That during the pendency of the said 1629 petition before the Honourable High Court of Sindh, General Zia-ul-Haq, issued President's Order No.4 titled as Zulfiqar Ali Bhutto Trust and People's Foundation Trust (Re-naming and Administration) Order 1978, which runs as under: "In pursuance of the proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order 1977 (CMLA Order No.1 of 1977), and in exercise of all powers enabling him in that behalf the President is pleased to make the following Order: 1. Short title and commencement.--(1) This Order may be called the Zulfikar Ali Bhutto Trust and Peoples Foundation 1630 Trust (Re-naming and Administration) Order 1978. (2) It shall come into force at once. 2. Order to override other laws etc:This order shall have effect notwithstanding anything contained in any other law for the time being in force or in Zulfikar Ali Bhutto Trust Deed of the sixth day of November, 1973, or the Peoples Foundation Trust Deed of the ninth day of August, 1974. 3. Re-naming etc. of Zulfikar Ali Bhutto Trust: 1631 i). The Zulfikar Ali Bhutto Trust shall be known as the "Sheikh Zayed Bin Sultan Al-Nahyn Trust" and the deed of the said trust dated the sixth day of November, 1973, shall stand amended accordingly. ii). All the powers and functions of the Board of Trustees of the aforesaid trust and of the Board of Directors of every institution connected therewith shall vest in and be exercised or performed by a Board of Trustees composed of such persons as the President may from time to time appoint. 4. Re-naming, etc. of Peoples Foundation Trust1632 (i) The Peoples Foundation Trust shall be known as the "Sheikh Sultan Trust" and the deed of the said trust dated the 9th day of August, 1974, shall stand amended accordingly. (ii) All the powers and functions of the Board of Trustees of the aforesaid trust and of the Board of Directors of every institution connected therewith shall vest in and be exercised or performed by a Board of Trustees composed of such persons as the President may from time to time appoint. A copy of the P.O. No.4 of 1978 is annexed and marked as Annexure "G". 1633 12. That thereafter the President's Order No.6 of 1979 was issued altering the objects of the Trust which is contrary to the injunctions of Islam as also the Trust Act 1882. A copy of the P.O. No.6 of 1979 is annexed and marked as Annexure "H". 13. That the MLO 21 of 1977 of CMLA and MLO 26 of Zone C and P.O. No.4 of 1978 and P.O. No.6 of 1977 and the abovesaid action of the Martial Law Authorities are mala fide in fact and in law and are repugnant to the Injunctions of Islam Law as per the law enunciated by the Shariat Appellate Bench of the Honourable Supreme Court of Pakistan 1634 in the case of Qazalbash Waqf v. Chief Land Commissioner Punjab, PLD 1990 SC 99. 14. That the respondent has destroyed the entity of the Peoples Foundation Trust and its allied institutions and confiscated the properties and assets of the Trust. The respondent is missing, misappropriating the funds and the assets of the Trust and applying its income for purposes other than those stipulated in the Trust Deed." PETITIONER'S PLEA 5. The learned counsel for the petitioners inter alia contended that: 1635 i. Martial Law Order No 21 issued by Chief Martial Law Administrator dated 17th October, 1977 (printed on page 453 of PLD 1977 volume 5 Statutes Part); ii. Martial Law Order issued by Martial Law Administrator Zone "C" (Province of Sindh) dated 28th September, 1977 (printed on page 122 of PLD 1977 volume 6 Provincial Statutes): iii. President's Order No.4 of 1978 entitled Zulfiqar Ali Bhutto Trust and Peoples Foundation Trust (Re-naming and Administration) Order, 1978 dated 26th March, 1978, (printed on pages 7778 of Volume 5 Statutes Part PLD 1977) and 1636 iv. President's Order 6 of 1979 entitled Zulfikar Ali Bhutto Trust and Peoples Foundation Trust (Re-Naming and Administration) (Amendment) Order, 1979 dated 28th February, 1979. (Printed on pages 69-70 of PLD 1979 volume 5 Statutes Part). are repugnant to the Injunctions of Islam and should resultantly be declared as such and consequently of no legal effect. It is also prayed that the respondents be directed to hand over the properties and assets of the Trust to the petitioners forthwith. 6. In support of his contention that the impugned Martial Law Orders are void and of no legal effect, Barrister Kamal Azfar 1637 learned counsel for the petitioner, proceeded to elaborate the points for consideration of this Court as under: (The contentions raised by learned counsel are mentioned in Part A while the points urged by the religious scholar on behalf of the petitioners are mentioned in Part-B. below). PART-A i. That the four Martial Law Orders under examination are violative of the Injunctions of Islam and consequently of no legal effect; ii. That the impugned Orders are contrary to 1638 the principles of law enunciated by the Shariat Appellate Bench of the Supreme Court of Pakistan in the case of Qazalbash Waqf v. Chief Land Commissioner, Punjab reported as PLD 1990 Supreme Court 99; iii. That the Orders under examination are colourable and motivated by personal malice of General Muhammad Zia-ul-Haq who having deposed Zulfiqar Ali Bhutto, the duly elected Prime Minister of Pakistan, confiscated the properties, assets and records of the Peoples Foundation Trust founded by his family members. iv. That although the Trust Act, 1882 and section 92 of the Code of Civil Procedure, 1908 provide adequate remedies for inquiring into the affairs of any Trust; yet 1639 the Chief Martial Law Administrator in utter violation of the existing and operative laws on the subject circumscribed, the legal provisions without lawful authority and suspended the Board of Trustees and appropriated powers and functions of the Board. Hence his action under the impugned Orders was ultra vires the Constitution and law. v. That the procedure adopted by Chief Martial Law Administrator for taking over the Trust and its assets was violative of the principles of Natural Justice. vi. That the step taken by Chief Martial Administrator was motivated by a desire to harm, harass and ultimately exterminate the petitioners. 1640 vii. That there was not a single complaint lodged by any one with any authority against the petitioners in relation to the affairs of the Trust. viii. That the malice of Chief Martial Law Administrator was so intense that after the promulgation of MLO 21 in October, 1977 he caused even the name of the Trust to be altered through President's Order No.4 of 1978. ix. That the actions of General Muhammad Zia-ul-Haq in removing the Trustees and seizing the properties of the trust without due process of law was ultra vires of Articles 23 and 24 of the Constitution. 1641 x. Relying on the time-honoured book Muhammadan Law by Syed Ameer Ali, Barrister Kamal Azfar urged that dedication of property was known in Islam and the law of Waqf had its origin with the Prophet p.b.u.h. himself who declared that all human actions come to an end with the death of an individual except such benefactions as are perpetual in their character. It was therefore submitted that Trusts or Waqfs were frequent during and after the lifetime of the Prophet p.b.u.h. and consequently a Trust cannot be acquired without compensation. Reference was made to the Waqfs created by Hazrat Umar R.A, Zubair bin Awwam R.A, Hazrat Abu Bakr R.A and Saad bin Abi Waqas. It was stated that the doctrine of Waqf is interwoven with the entire religious life and social economy of the Muslims. Learned counsel for the petitioner, in 1642 support of his contentions stated that Fidak was returned to the Ahl-e-Bait ultimately by the Ummayad Caliph Umar bin Abdul Aziz. It was therefore urged that the suit trust has to be restored to the petitioners. xi. Reference was also made to another oftquoted- book entitled Principles of Muhammadan Law by D.F. Mulla as well as Rule 890 of the Mejelle which states that "If the property taken without leave is corporeally existing, it must be returned, and delivered to its owner, at the place where it was taken." PART-B xii. Learned counsel for the petitioners then 1643 asked Maulana Sajid ur Rahman Siddiqui of Jam Dar-ul-Uloom Karachi to address the Court on the question that the impugned Martial Law Orders are violative of the Injunctions of Islam. The following points were raised by the religious scholar: a. Ayat No.58 of Sura 04 of Holy Quran enjoins that trusts should be handed over to its owners; b. Ayat No.27 Sura 08 of Holy Quran proclaims:"O you who believe, do not be faithless to God and His Apostle, nor 1644 violate you trusts knowingly". c. Ayat No.08 of Sura 23 is appreciative of those persons who fulfil their trusts and honour their promises; d. Ayaat 32 through 35 of Sura 70, of Holy Quran recounts the attributes of those persons who will be spared the torture in Hell and amongst them are the people who are faithful to their trusts and covenant. e. Ayat No.29 of Sura 04, Al-Nisa, of Holy Quran enjoins not to devour the property of others by unlawful means. It was urged that except trade, inheritance and gift all other modes of acquisition of property are against the Injunctions of Islam. Since the properties 1645 of the petitioners were misappropriated so the action was violative of this Injunction as well. f. It was urged on the basis of Ayat 128 of Sura 07, of Holy Qur'an that the entire land belongs to Allah. He gives to when He pleases and hence it is unlawful to deprive the owner of the property. g. Ayat No.08 of Sura 05, of Holy Quran was also relied upon to urge that Allah commands the believers to be upright for His sake and that the believers should be bearer of witness with justice and the hatred of a party should not incite you to act inequitably. Be always just for such a course is nearer to piety. It is a duty imposed by Allah. This duty, it was maintained, was not 1646 fulfilled. RIPOSTE 7. Learned Standing Counsel for the Federal Government in a short reply to the points urged on behalf of the petitioners stated that he was unable to controvert the Injunctions of Holy Quran relied upon by the religious scholar on behalf of petitioner. On a Court question whether the impugned Martial Law Orders could be justified on the touchstone of any Injunctions of Islam, the learned counsel for Federal Government stated that he could neither quote any Ayat from Holy Qur'an nor any NASS from the plethora of traditions of the Holy Prophet (p.b.u.h.) 1647 8. The following Ministries/Division in response to notices issued by this Court submitted para-wise statements/comments which were duly verified and cleared by concerned authority:1. Finance Division 2. Auditor General of Pakistan 3. Ministry of Religious Affairs 4. Ministry of Population Welfare 5. Ministry of Social Welfare & Special Education 6. Ministry of Health 7. Ministry of Housing & Works 8. Ministry Broadcasting of Information and 1648 All the above Ministries/Divisions, inter alia, stated that: Ever since the promulgation of MLO 21 of 1997 by the CMLA, MLO 26 of Zone `C' PO No.1 of 1978 and PO No.6 of 1979 the said trust is under the 7th Schedule of the Constitution in terms of Article 270-A of the Constitution. However, this does not preclude the determination of the list on the touchstone of Article 203-D of the Constitution to examine and decide the question whether or not the provisions under challenge are repugnant to the injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). Such a proposition is also ascertainable from the Preamble of the Constitution. It was also stated that Article 2-A of the Constitution makes the Objectives Resolution a substantive part of the Constitution. Reference in this context to Articles 3, 4, 5, 1649 6, 20, 23, 24, 31, 37 and 38 was also made. The above-mentioned Ministries/Divisions further submitted following grounds in support of their statements:"The averments herein do infringe upon the provisions relating to "Trusts' as ordained under the Injunctions of Islam. The public welfare trust constituted by late Zulfiqar Ali Bhutto, Prime Minister of Pakistan was taken over by General Zia-ul-Haq who had removed the elected premier and embarked upon retracing the act and steps taken by him for motivations other than promoting the legal and constitutional doctrines germane to the welfare of the people of Pakistan or Mohammadan law regulating 1650 trust properties stand violated. Reference to Qazilbash Trust case reported as PLD 1990 SC 99 which clearly states that taking over trust under MLO 21 of CMLA 1997 and rule 26 MLA Zone C and P.O. 4 of 1978 and P.O. 6 of 1979 are contrary to the Injunctions of Islam." The above mentioned Ministries/Divisions unanimously supported the prayer of the' petitioner, in following terms:"The claim of the petitioner is manifestly just and proper and the declaration sought legally sustainable as MLO's 21 of CMLA, 26 of MLA Zone `C' P.O. 4 of 1978 and P.O. of 1979 are ostensibly repugnant to the Injunctions of Islam. Consequently, the Peoples Foundation 1651 Trust as originally registered with the substitution of legal heirs of the deceased trustees merits to be restored along with properties and assets of the trust seize taken over and controlled under afore referred instruments. This Court has no objection to return assets/trust property etc. to the original/founder trustees or their legal heirs of the deceased trustees." THE JUDICIAL VIEW 9. The Hon'ble Chief Justice of Pakistan Mr. Justice Iftikhar Muhammad Chaudhry, while delivering his key note address in the inaugural session of the National Judicial Conference, 2010, held at the Supreme Court Auditorium Islamabad, on 16th April, 2010, in his personal capacity as well as on 1652 behalf of the Superior Judiciary declared as follows: i. Each of the two components of the profession of law, i.e. the Judges and the lawyers is a very busy community. The cycle of their engagements goes on and on. Both the professions are noble and respectable. All the Judges, and all the lawyers, who work with a passion for justice; who work with a passion to ameliorate the sufferings of the litigant public; who work to ameliorate the suffering of women, the juveniles and other prisoners in jails; who work to ameliorate the suffering of the litigants whose cases linger on for generations; who work to ameliorate the suffering of the litigants who travel from far-off distances to reach courts; who work to 1653 ameliorate the suffering of the litigants whose, may be, lifetime earnings are at stake on account of scrupulous maneuverings of their opponents; and who work to ameliorate the suffering of the litigants whose, may be, lifetime earnings are at stake on account of scrupulous maneuverings of their opponents; and who work to ameliorate the suffering of the families of the poor litigants--all such Judges and lawyers earn for themselves a reward in this world, and still a greater reward in the world hereafter. ii. The aim of formulating a National Judicial Policy is to ensure adherence to the Constitutional principles of equality before law and equal protection of law. It also aims at strengthening the role of 1654 Judiciary as an organ independent of the Executive and Legislature. iii. Article 2-A of the Constitution of Pakistan envisages that the independence of the judiciary shall be fully secured. It also speaks of a democratic form of Government guaranteeing all the freedoms, equality, tolerance and social justice in lines with the Islamic tenets. The superior courts under the Constitutional powers may strike down any law inconsistent with the Injunctions of Islam as laid down in the Holy Quran and the Sunnah and the fundamental rights as enshrined in the Constitution. The Constitution invests the superior courts with the power of judicial review and inherent powers that may be exercised to smooth away the inter1655 institutional/governmental irritants. iv. The role of Judiciary is not that of an opposition to the Legislature and the Executive but that of a custodian and a bastion of the Constitutional rights and liberties of the citizens. An independent judiciary sets and declares the constitutional limits on the powers of the State organs including the executive, legislature and the courts. It supervises a regime of the rule of law and not the rule of men. The judiciary acts as a guardian of the Constitution; therefore, it is described as a citadel of justice. In a democratic system, none of the three organs i.e. the Executive, legislature and the Judiciary is empowered to assume/exercise unbridled powers. An independent judicial system is a 1656 prerequisite of a democratic society. The independence of judiciary guarantees improved law and order standards, strengthened national security, better economic development and social wellbeing of the people." This Conference was attended by the Hon'ble Judges of the Supreme Court, Hon'ble Chief Justice and Hon'ble Judges of the Federal Shariat Court, Chief Justices and Hon'ble Judges of the provincial High Courts, members of the District Judiciary and learned members of the Bar including elected representatives of Bar Associations and Bar Councils. 10. This speech reminds us of Ayat No.251 Sura 2, Al-Baqra, of Holy Quran, which, 1657 after recalling the story of defeat of Jalud (the Midianites) at the hand of Talut (Gideon) during the times of Syedna Daud (David) A.S, proclaims as under: So they routed them by the command of Allah, and Daud slew Jalut, and Allah gave him sovereignty and wisdom and taught him of what He pleased. And had not Allah repelled some people by other people, the earth would indeed be full of mischief, but Allah is the Lord of Grace to all people. EXAMINATION OF LAWS 11. We now take up examination of the impugned instruments on the touchstone of 1658 Injunctions of Islam as visualized by Article 203D of the Constitution of Islamic Republic of Pakistan. We propose examining these provisions initially in the light of various principles of legal import enunciated in Holy Quran and Sunnah. PRINCIPLE OF SHOORA 12. Ayat 38 of Sura 42 (Ash-Shoora) of Holy Quran reads as follows:-"And those who respond to their Lord and keep up prayer, and their rule is to take counsel among themselves, and who spend out of what We have given them. " 1659 This is an early Meccan revelation. At that point of time when administration of the affairs of State was not within sight, the Muslims were being mandated, as usual, to observe prayer and to spend from what Allah had given them. Yet between these two injunctions, which always go together in the Holy Quran, is placed a third; and their rule is to take counsel among themselves. It is clear that even at that early period when the Muslims had no important matter to decide for which they might have stood in need of counsel, yet between two injunctions, which are the basis of Islamic life, a third is inserted enjoining that, as a rule, counsel should be taken. The wisdom behind this injunction indicates that the believers were being prepared for transacting the momentous affairs of State through Counsel in all matters connected with national weal or woe. The use of the 1660 word AMR in this verse refers certainly to the Islamic Kingdom, the affairs of which must be transacted by Counsel. In this Islam laid the basis of government by parliament, and this God-given idea found a clear practical expression in the early days of the Caliphate, when Khalifa had to refer every important affair to a Majli-e-Shoora. The important questions whether the traditions of the Holy Prophet (p.b.u.h.) have to be recorded and whether the conquered agricultural land was to be distributed among the combatants or retained by State for public welfare were referred to the Council for debate and decision. ii. Ayat 159, Sura 03 Ale-Imran, of Holy Quran contains another Injunction about Counsel-(SHOORA) Thus it is due to mercy from Allah that you deal with them gently, 1661 and had you been rough, hard-hearted, they would have dispersed from around you; pardon them therefore and ask protection for them, and take counsel with them in the affair; so when you have (thus) determined, then place your trust in Allah; Surely Allah loves those who trust. iii. In support of the above mentioned Ayaat relating to mutual consultation we find that Holy Quran at a number of places, mentioned below, prompts the believers to express themselves freely and fairly because human beings have been invested with the power of speech. a. Ayaat 01 through 05 Sura 55, ArRahman: 1662 The Beneficent God, Taught the Quran, He created human beings, Taught them the mode of expression. The word Bayan, used in Holy Quran, has a broad significance. It includes the meanings: to express, unravel the hidden realities etc. b. Ayat 83 Sura 02 Al-Baqra: And recall when We made a covenant with the Children of Israel: "You shall serve none but Allah and do good to parents, kinsmen, orphans and the needy; you shall speak kindly to people, and 1663 establish Prayer and give Zakah (Purifying alms). And yet, except for a few, you turned back on this covenant, and you are still backsliders. c. Ayat 110 Sura 03 Ale-Imran of Holy Quran: You are now the best nation brought forth for mankind. You enjoin what is right and forbid what is wrong and believe in Allah. Had the people of the Book believed, it were better for them. Some of them are believers but most of them are transgressors. d. Ayat 67 Sura 09 Al-Tawbah: 1664 The hypocrites, be they men or women, are all alike. They enjoin what is evil, and forbid what is good, and withhold their hands from doing good. They forgot Allah, so Allah also forgot them. Surely the hypocrites are wicked. e. Ayat 01 through 04 Sura 96 Al-Alaq of Holy Quran: Read in the name of your Lord who created; He created human being from a clot, Read and you Lord is Most Honourable, Who taught (to write) with pen, taugh the human being what he knew not. f. Ayat 149 Sura 04, Al-Nisa concedes 1665 the right of protest (speech in public) to every aggrieved person. This right of expression is extremely important freedom recognized by Divine commandment. To the same effect is Ayat 01 Sura 58 Al-Mujadalah of Holy Quran. It opens with the words: "Allah has, indeed, heard the talk of her who pleads with there concerning her husband." The Holy Quran at innumerable places prompted its readers to think, ponder and exert mental faculties for appreciation of things and events around him. This process is indeed a vehicle for advancement of knowledge. At the same time Holy Quran declares in Ayat 71 Sura 17, Bani Israel of 1666 Holy Quran that Allah has conferred dignity on children of Adam. Dignity, freedom to choose, empowerment and freedom to express, freedom to lodge protest signify that the affairs of people shall be governed by consensus, consultation, debate and dialogue. The Martial Law Orders issued by an adventurer, without taking the vicegerent (people) into confidence is blatant violation of a number of Injunctions of Islam. THE OBJECTIVES RESOLUTION 13. The Preamble of the Constitution of Islamic Republic of Pakistan enshrines the Objectives Resolution. It was moved by Nawabzada Liquat Ali Khan, the first Prime Minister of Pakistan and passed by the first Constituent Assembly on 7th March, 1949. 1667 The third clause of this resolution reads as follows:"Wherein the State shall exercise its power and authority through the chosen representatives of the people" The opening clause of this resolution declares:"Whereas sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust". (Emphasis Added) 1668 The impugned Martial Law Order is a clear violation of the Objectives Resolution. TRUSTS REVERT TO THE OWNERS 14. It is worth-noticing that Ayat 58 of Chapters 4 Al-Nisa of Holy Quran makes a pointed reference to the trusts in the following terms : "Surely Allah commands you to make over trust to those worthy of them (those who are entitled to it) and that when you judge between people, you judge them with justice, surely excellent is that with which Allah admonishes you. Allah is All-hearing, All - seeing." 1669 This Ayat is a clear pointer to the fact that: a. the trust property/assets (and public offices) must be restored to the real owners; b. the affairs of government must be assigned to those worthy of handling the authority; c. such recipients of power should adjudicate matters between people with justice; d. those entrusted with authority should be free from bias, and 1670 e. that these commandments are from Allah who is Seeing and Hearing. Reference to the two Divine attributes i.e. Seeing and Observing in this Ayat indicates the importance attached to this very commandment. He sees every one in authority and He is listening to what they say or what is being said to them by the supplicant or is being said about them. This Ayat is an instance where the governors are being warned of their duties to the governed and the verse that follows (obey Allah, His Apostle and those in authority) mentions the obligation of the governed toward the governors. The word trust as used in this Ayat includes covenants. People are enjoined to be true to their trusts. f. Maulana Mufti Muhammad Shafi, in his 1671 voluminous work Maaraful Quran, a commentary of the Holy Book (volume 2 pages 444-445 first edition while commenting upon Ayat 58 of Sura Al-Nisa) has narrated the historic event of conquest of Macca. He recounts the story of Usman bin Talha who was trustee - custodian of Holy Kaaba. He used to open the door of House of God on Mondays and Thursdays during the Ayyaam-Jahiliya. Once, before Hijrat, the Holy Prophet (p.b.u.h.) along with his companions expressed the desire to enter the House which wish was spurned by Usman. The latter recalled that the Holy Prophet (p.b.u.h.) on that occasion told him that a day will come when you will see the key of the House of God in my hand and I will hand over the same to whom I desire. Thereupon Usman retorted that in that case it will be all doom, gloom and degradation for the Quraish whereupon the Holy Prophet 1672 (p.b.u.h.) said No: that will be the day when Quraish will become honourable and shall flourish. Time passed and the Muslims conquered Macca. Usman bin Talha was summoned' by the Holy Prophet (p.b.u.h.) when he presented the key of the House of God to the Holy Prophet (p.b.u.h.) The merciful conqueror while returning the key to Usman proclaimed that this key shall remain with Usman and his progeny till eternity and he will enjoy the benefit of all the gifts and presents that he or his progeny receives in consideration of the service of the House of God. Hazrat Umar R.A. reported that this very Ayat was being recited by the Holy Prophet (p.b.u.h.) on that day which he had not heard before. It is also reported that when Usman received back the key the Holy Prophet (p.b.u.h.) reminded him of that day when the had refused to open the door for him and it was said that a 1673 day will come when this key will be in his hand. g. Learned counsel had also relied upon the historical incident of the return of Fidk to the action of Hazrat Umar bin Abdul Aziz undoubtedly established the principle that properties dedicated to a cause must be restored even though considerable period has elapsed. Rights of owners in the properties do not die when the property is confiscated, usurped or taken over by the government. Rights descend upon the progeny of the original beneficiary and may be honoured by a successor government. COVENANTS ARE SACRED 1674 15. Our Constitution is a social contract. It enshrines certain conditions which people have accepted and adopted. The ruling elite takes oath under the Constitution to preserve its sanctity. One who takes oath to preserve and protect it cannot break it to the detriment of entire nation. It is not like breaking the oath of an individual whose atonement is made possible by Islamic Injunctions. Constitution does not provide any expiation for the transgressors who were under oath to preserve it. On the contrary Constitution declares it to be a very serious offence. In this background let us examine Articles 4 and 5 of Constitution which mandate as follows:4. (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, 1675 wherever he may be, and of every other person for the time being within Pakistan. (2) In particular-(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him 1676 to do. 5. (1) Loyalty to the State is the basic duty of every citizen. (2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan. These Articles make it abundantly clear that deviation from law has not to be countenanced. This is an assurance to the people of Pakistan that people in authority shall treat them in accordance with law. Each one is bound by these stipulations. 1677 16. In this view of the matter the following tradition of the Holy Prophet PBUH assumes significance:The Muslims are bound by the conditions they accept a condition which forbids what is lawful and permits what has been made unlawful. Jamay Tirmazi Volume 1, Tradition No.1363 Resultantly the impugned Martial Orders are clearly violative of the provisions of the Constitution which could not have been suspended. The Constitution does not authorize even an adventurer to undertake legislation. The principle enunciated by the 1678 Nass is that the conditions once stipulated cannot be altered unilaterally through extraneous intervention. The change of conditions involves consent of both the parties. 17. Ayat 9 of Sura 33, al-Mu'minun of Holy Quran says:"Successful indeed are the believers who are watchful of their trusts and covenants." 18. The stipulated Martial Law Orders are violative of the above mentioned Injunctions of Islam because: 1679 a. The name of the Trust was altered; b. The objectives underwent a change; c. The administrative machinery was substituted for the original trustees; d. The intrinsic rights of the appropriator were hacked without lawful authority; and e. The wishes of the Dedicators as regards the appointment of a Mutwalli i.e., Managing Trustee have altogether been altered. 1680 RIGHT OF APPEAL/REPRESENTATION 19. Islamic Injunctions and teachings grant to every aggrieved person the freedom to lodge protest. Every aggrieved person has a right of representation. He is free to lodge an appeal against an order affecting him adversely and it is his right that his appeal will be adjudicated upon without inordinate delay by an independent tribunal. He can, under no circumstances be stopped from exercising his basic right. Reference may be made to the following two Ayaats of Holy Quran:-i. Ayat No.148 Sura 4 Al-Nisa of Holy Quran: 1681 "Allah does not love the public utterance of hurtful speech, unless (it be) by one to whom injustice has been done." ii. Ayat No.1 Sura 58 Al-Mujadilah (The Pleading one) of Holy Quran: "Allah indeed knows the plea of the woman who pleads with you about her husband and complains to Allah, and Allah knows the contentions of both of you; Surely Allah is Hearing, Seeing." Ayat No.1 of Sura Mujadilah, quoted above, has a reference to one Khaula, wife of Aus bin Samit, who had been separated by her husband on account of an old but a degrading custom whereby the husband 1682 could, with impunity, exercise Zihar i.e. he would compare the wife to the back of his mother and thereby succeed in denuding her of her marital status. The consequence of this declaration was a total estrangement between the spouses. The aggrieved women henceforth was neither a wife nor a divorcee. Her rights were held in abeyance. Khaula, a genuinely aggrieved spouse, injured on account of the prevailing but inhuman custom, appeared before the Holy Prophet (p.b.u.h.) and lodged her protest. Her legal entity was as stake. Who was she? Neither a wife nor a divorcee. She could not withstand such a humiliating situation. In fact she demanded review of the custom which had the force of law. This is probably the only instance in human history when a time-honoured custom, having the force of law, was reviewed by Almighty Allah on the protest of a lady. Quick came the response 1683 through the medium of revelation. It is significant that Quran, which is a source of guidance till eternity, preserves this particular incident of violation of human right for the benefit of future generations. This episode brings into prominence interalia the following principles: a. There exists in the aggrieved person the unfettered right to lodge a protest or prefer an appeal before a higher authority with the object of seeking redressal of grievance; b. The authority hearing the appeal is under obligation to decide the same; c. The arbiter is required to give due 1684 weight to violation of human rights and human dignity; d. The authority may, where necessary, impose a penalty upon the violator of human rights (reference Ayat No.4 of same Sura), and e. Even a law can be amended/repealed on account of a protest and f. The right of an individual to initiate proceedings cannot be circumscribed. SAMEE AND BASEER 1685 20. The reference to Divine attribute of Hearing and Seeing for well over four score times in Holy Quran shows that the right of an aggrieved person to lodge protest, appeal or representation against the wrong doer before a higher tribunal i.e., a person other than the one whose order is to be challenged has Divine sanction. The repeated reminders by Holy Qur'an that Allah is Hearing and Seeing is, on one hand, a permission to an injured soul to initiate proceedings and on the other hand a warning to the adjudicator that Allah constantly watches the way matters are being adjudicated upon. These oft-repeated attributes of Allah i.e., Seeing and Hearing, mentioned in the Holy Quran are designed to act as guarantees. In other words the rights and freedoms are justiciable. 1686 21. The Constitution as well as legal instruments in force in Pakistan, provide ample remedies to aggrieved persons by way of appeals, revisions, reviews. The Constitution mandates that the Supreme Court, Federal Shariat Court and the High Courts shall have power to exercise original and Suo Motu jurisdiction, and thereby provide relief to aggrieved persons. The superior Judiciary has, while interpreting various provisions of law held that right of appeal, representation, showcause notice is inherent in Islamic teachings. An instrument, having the force of law, which purportedly denies the right of appeal etc. or which does not provide for a show cause notice will be deemed to be violative of the Injunctions of Islam. Reliance is placed on the following precedents:- 1687 a. Pakistan and others v. Public at Large and others PLD 1987 Supreme Court 304 b. Pakistan through Secretary Ministry of Defence v. The General Public PLD 1989 Supreme Court 6. c. In re: The Civil Servants Act, (LXXI of 1973) PLD 1984 Federal Shariat Court 34. d. Messrs Sadiq Brothers v. Appellate Additional Commissioner, Income Tax/Wealth Tax, Rawalpindi and another 2004 PTD 122. (Appeal ....Barring a right of appeal offends against Injunctions of Islam. 1688 e. Dr. Muhammad Aslam Khaki and others v. Government of Punjab and others PLD 2005 Federal Shariat Court 3 22. Islam has conferred upon human beings the freedom of expression. Grievances have to be redressed. Any bar on this right is negation of the Divine principle of human dignity. A portion of the famous Khutba known as Khutba-e-Ajeeba (a wonderful sermon) and Khutba-e-Ghurra (an eminent sermon) mentioned in Nahjul Balega as Khutba No.86, delivered by Imam Ali R.A. the fourth Caliph, is illustrative of this point: "He has given ears to you so that you may hear and preserve in. mind things useful to you. He has given eyes to you so that you may acquire such knowledge 1689 which will bring you out of the darkness of ignorance and make you see the light of reasoning and wisdom. He has also given to you so many useful organs of body, each of which is composed of many parts, their functioning depends upon their interdependence and their symmetry; their forms and periods of their utility, their co-ordinated action to serve the body, their connection with a heart which is properly fed (with blood) and nourished, in fact this perfectly expedient body and mind are the blessings bestowed upon you besides so many other bounties and thank-worthy boons and protections. He then fixed a limit of life for everyone of you and has kept it a secret from you. In the histories of the past nations and 1690 lives of individuals, He provided opportunities for you to study the footprints on the sands of time and to be warned of the consequences of evil deeds. Lives of men, who were enjoying themselves to their hearts' contents and had perfect freedom of action, have such useful lessons in them to teach. Just read them over and over again and see how quickly death overtook them. They did not get time to satisfy their desires fully before death put an end to their lives and placed them beyond and further possibility of fulfillment of those wishes." This sermon appears to be a commentary upon the Ayat No.257 of Sura 2, Al-Baqra which declares as follows: 1691 "Allah is the Guardian of those who believe, He brings them out of every darkness into light. And those who disbelieve, their guardians are the evil ones; they bring them out of light into all kinds of darkness. These are destined for the Fire, and there shall they abide." Human freedom has thus been guaranteed by the Creator Himself for all times to come. SUPREMACY OF RULE OF LAW 23. Holy Quran contains stern warning for all those who are charged with the onerous duty of regulating the affairs of State or administering justice among people. The arbiter cannot deviate from the principles 1692 laid down in the revelation. His decisions must be in accord with the revealed rules. Ayaat 44, 45 and 47 of Sura 5, Al-Maida of Holy Quran declare such persons as Kafir (unbeliever), Zalim (unjust) and Fasiq (transgressor) who decide cases without reference to principles laid down by reveled text. Ayat 42 of this very Sura declares further that Allah loves those who judge people equitably. 24. Ayat 105 of. Sura 04, Al-Nisa of Holy Quran reiterates the commandment that the purpose of revealing the Book with truth was that people should be judged by means of precepts and values ordained by Allah for human guidance. This verse closes with a warning that the balance of justice must be held equal irrespective of the fact that parties are friends or foes. The following 1693 Ayaat of Holy Quran will illustrate the point further: i. Ayat No.135 Sura 04 Al-Nisa of Holy Quran: "O you who believe! Be upholders of justice, and bearers of witness to Truth for the sake of Allah, even though it may be against yourselves or against your parents and kinsmen, or the rich or the poor, for Allah is more concerned with their well-being than you are. Do not, then, follow your own desires lest you keep away from justice. If you twist or turn away from (the Truth), know that Allah is well aware of all that you do." 1694 ii. Ayat No.90 Sura 16 Al-Nahl of Holy Quran "Surely Allah enjoins justice, kindness and the doing of good to kith and kin, and forbids all that is shameful, evil and oppressive. He exhorts you so that you may be mindful." iii. Ayat No.08 Sura 05, Al-Maida, of Holy Quran: "O you who believe! Be upright, bearers of witness for Allah, and do not let the enmity of any people move you to deviate from justice. Act justly, that is nearer to God-fearing. And fear Allah. Surely Allah is well aware of what you 1695 do." iv. Ayat No.152 Sura 06, Al Anaam, of Holy Quran: "And do not even draw near to the property of the orphan in his minority except in the best manner; and give full measures and weight with justice, We do not burden anyone beyond his capacity; when you speak, be just, even-though it concerns a near of kin; and fulfil the covenant of Allah. That is what He has enjoined upon you so that you may take heed." v. Ayat No.26 Sura 38, Suad, of Holy Quran: 1696 "(We said to him): "0 David, We have appointed you vicegerent on earth. Therefore, rule among people and do not follow (your) desire lest it should lead you astray from Allah's path. Allah's severe chastisement awaits those who stray away from Allah's path, for they had forgotten the Day of Reckoning." vi. Ayat No.15 Sura 42, Al-Shura, of Holy Quran: "(This being so, O Muhammad), call people to the same religion and be steadfast about it as you were commanded, and do not follow their desires, and say (to them): "I believe in the Book Allah has sent down. I have 1697 been commanded to establish justice among you. Allah is our Lord and your Lord. We have our deeds and you have your deeds. There is no contention between us and you. Allah will bring us altogether. To Him all are destined to return." vii. Ayat No.29 Sura 07, Al-Aaraf, of Holy Quran: "Say to them (O Muhammad): "My lord enjoins justice; and that you set your faces aright at the time of every Prayer; and that you call upon Him, exclusively dedicating your faith to Him. You shall return to' Him as you were created." 1698 viii. Ayat No.42 Sura 05, Al-Maida, of Holy Quran: "They are listeners of falsehood and greedy devourers of unlawful earnings. If they come to you (for your judgment), you may either judge between them or turn away from them. And were you to turn away from them they shall not be able to harm you". ix. Ayat No.09 Sura 49, Al-Hujraat, of Holy Quran: "If two parties of the believers happen to fight, make peace between them. But then, if one of them transgresses against the other, fight the one that transgresses 1699 until it reverts to Allah's command. And if it does revert, make peace between them with justice, and be equitable for Allah loves the equitable." x. Ayat No.09 Sura 55, Al-Rehman, of Holy Quran: "But weigh things equitably and skimp not in the balance." xi. Ayat No.126 Sura 16, Al-Nahl, of Holy Quran: "If you take retribution, then do so in proportion to the wrong done to you. But if you can bear such conduct with 1700 patience, indeed that is best for the steadfast." xii. The well-known tradition quoted by Imam Bukhari shows that the Holy Prophet p.b.u.h. stated that earlier nations suffered fall because punishments were not awarded to rich and influential persons but poor people alone would be convicted and sentenced. The principle of Discrimination/Pick and Choose in dispensing justice must be eschewed. This rule, of universal nature, has been emphatically asserted in this tradition: (Tradition No.1962 Vol. 3, Bukhari) 1701 xiii. The Khutba Hujjatul Wida contains a specific injunction that the things (assets, properties) lying in your custody must be returned to their rightful owners. The sermon also contains a warning that Allah will certainly reckon your deedsRelevant portion of the Khutba reads as under: O people! Just as you regard this month, this day, this city as sacred, so regard the life and property of every Muslim as a sacred trust. Return the goods lying with you to the rightful owners. Hurt no one so that no one may hurt you. Remember that you will indeed meet you Lord and that He will certainly reckon your deeds. 1702 xiv. Justice must prevail. Justice is an absolute value. It cannot be circumscribed by conditionalities. This principle is evident from a careful perusal of Ayat 153 Sura 06, Ayat 29 Sura 07 and Ayat 135 Sura 04. Muslim are under an obligation to honour the stipulated the covenant except when a condition which converts a Halal (permissible) in Haram (forbidden) or vice versa. Hadith No.1363 Volume 1 Jame Tirmazi, ILLEGAL ACQUISITIONS ARE OF NO LEGAL EFFECT 25. Ayat No.188 Sura 02, Al-Baqra and 1703 Ayat No.29 Sura 04, Al-Nisa of Holy Quran forbid in very stern terms from acquiring assets, interests, properties of others without lawful means. Modes of acquisition of property other than the accepted customary or legally permissible methods have been termed as Batil by Holy Quran. The word Batil is antonym of Haq i.e. truth. A thing which causes mischief would be batil. It is significant to note that Ayat No.29 of Sura 04, though of general import, finds mention in that part of the Sura which deals with protection of the rights of women. And it so happened that all the petitioner trustees, who were affected by the impugned Martial Law Orders, were at the time of promulgation of such Orders, womenfolk. 26. Ayat 50 Sura 05, Al-Maida, of Holy 1704 Quran directs that people should be judged according to the principles enunciated in the revelation. A departure from this rule has been termed repressible act of the times of Ignorance. LEGAL CAPACITY 27. According to Islamic Jurisprudence the legal capacity of an adult is complete after he/she has attained puberty as well as Rushd. This capacity is the ability or fitness to acquire and exercise rights and to accept and perform corresponding duties and obligations. Both the capacities i.e, acceptance or acquisition of rights and the performance of duties is termed in Islamic Law as Ahliyyat al wajub and Ahliyyat al ada respectively. This legal capacity or 1705 Dhimma, is complete and has legal effect. It means the capacity to sue and be sued. It means the capacity to lodge protest or file an appeal as well the capacity of being called upon to answer a charge. It is a status without which an individual cannot be treated as a legal, responsible entity. It is a Divine gift and it cannot be limited by a unilateral Order of any mundane authority without recourse to Injunctions of Islam. Any such attempt would be a challenge to the Creator who conferred not only dignity upon human beings but also clothed them with legal capacity. It is on account of this legal capacity that a human being becomes a Mukallif i.e. an Obligee and thus a subject of Khitab i.e. communication from his Lord. A person having legal capacity is answerable to God and no one has the authority to deny a person of the status conferred upon him by 1706 his Creator. The action of Chief Martial Administrator whereby he denied through a special Order the petitioners their rights to supervise and control the Trust without of course recourse to the provisions of law, and thus the act of issuance of Martial Law Order debarring the Courts of Pakistan from providing legal remedy to the petitioners is also violative of the principle of Legal Capacity as well. Extraordinary Power of an individual is death knell of human freedom. Absolute power vests in Allah Almighty alone. PRINCIPLE OF WUSAAT 28. The impugned instruments are violative of the following principles enunciated in Holy Quran:-1707 That no one shall be burdened beyond his capacity. It is mentioned at four following places:a. Ayat No.286 Sura 02 Al-Baqra: "Allah does not lay a responsibility on anyone beyond his capacity." b. Ayat No.233 Sura 02 Al-Baqra: "If they (i.e. the fathers) wish that the period of suckling for their children be completed, mothers may suckle their 1708 children for two whole years. (In such a case) it is incumbent upon him who has begotten the child to provide them (i.e. divorced women) their sustenance and clothing in a fair manner. But none shall be burdened with more than he is able to ear; neither shall a mother suffer because of her child nor shall the father be made to suffer because he has begotten him. The same duty towards the suckling mother rests upon the heir as upon him (i.e. the father). And if both (the parents) decide, by mutual consent and consultation, to wean the child, there is no blame on them; if you decide to have other women suckle your children there is no blame upon you, provided you hand over its compensation in a fair manner. Fear Allah and know well that Allah sees all that you do." 1709 c. Ayat No.152 Sura 06 Al-An'am: "And do not even draw near to the property of the orphan in his minority except in the manner; and give full measures and weight with justice, We do not burden anyone beyond his capacity; when you speak, be just, even though it concerns a near of kin; and fulfil the covenant of Allah. That is what He has enjoined upon you so that you may take heed." d. Ayat No.42 Sura 07 Al-A `raf: "As for those who believe and do good, We do not impose upon any of them a 1710 burden beyond his capacity. They are the people of Paradise. And there they shall abide." PRINCIPLE OF ADAM HARJ 29. The Holy Qur'an lays down the principle of Adam Harj i.e. Removal of Hardship in the following Ayaat:a. Ayat No.06 Sura 05, Al Ma `idah: "Believers! When you stand up for Prayer wash your faces and your hands up to the elbows, and wipe your heads, and wash your feet up to the ankles. And if you are in the state of ritual impurity, 1711 purify yourselves (by taking a bath). But if you are either ill, or travelling, or have satisfied a want of nature or have had (intimate) contact with women and find no water, then have recourse to clean earth and wipe your faces and your hands therewith. Allah does not want to lay any hardship upon you; rather He wants to purify you and complete His favours upon you so that you may give thanks." b. Ayat No.78 Sura 22, Al-Hajj: "Strive in the cause of Allah in a manner worthy of that striving. He has chosen you (for His task), and He has not laid upon you any hardship in religion. Keep to the faith of your father Abraham. 1712 Allah named you Muslims earlier and even in this (Book), that the Messenger may be a witness over you, and that you may be witnesses over all mankind. So establish Prayer, and pay Zakah, and hold fast to Allah. He is your Protector. What an excellent Protector; what an excellent Helper!" PRINCIPLE OF TAISEER 30. The Principle of Ease i.e., Taiseer has been enunciated by Holy Quran in the following Suras:a. Ayat No.184 Sura 02, Al-Baqra: 1713 "Fasting is for a fixed number of days, and if one of you be sick, or if one of you be on a journey, you will fast the same number of other days later on. For those who are capable of fasting (but still do not fast) there is a redemption: feeding a needy man for each day missed. Whoever voluntarily does more good than is required, will find it better for him; and that you should fast is better for you, if you only know." b. Ayat No.185 Sura 02, Al-Baqra: "During the month of Ramadan the Quran was sent down as a guidance to the people with Clear Sings of the true guidance and as the Criterion (between right and wrong). So those of you who 1714 live to see that month should fast it, and whoever is sick or on a journey should fast the same number of other days instead. Allah wants ease and not hardship for you so that you may complete the number of days required, magnify Allah for what He has guided you to, and give thanks to Him." c. Ayat No.196, Sura 02, Al-Baqra: "Complete Hajj and Umrah for Allah. And if you are prevented from doing so, then make the offering which is available to you, and do not shave your heads until the offering reaches its appointed place. If any of you should have to shave your head before that because of illness, or injury to the head, then you should make 1715 redemption by fasting, or alms-giving, or ritual sacrifice. And when you are secure, then he who avails of Umrah before the time of Hajj shall give the offering he can A afford; and if he cannot afford the offering, he shall fast for three days during. Hajj and for seven days after he returns home; that is, ten days in all. This privilege is for those whose families do not live near the Holy Mosque. Guard against violating these ordinances of Allah and be mindful that Allah is severe in chastisement." d. Ayat No.280 Sura 02, Al-Baqra: "But if the debtor is in straitened circumstance, let him have respite until the time of ease and whatever you remit 1716 by way of charity is better for you, if only you know." e. Ayat No.92 Sura 04, Al-Nisa: "It is not for a believer to slay another believer unless by mistake. And he who has slain a believer by mistake, his atonement is to set free from bondage a believing person and to pay bloodmoney to his (that is, the slain person's) heirs, unless they forgo it by way of charity. And if the slain belonged to a hostile people, but was a believer, then the atonement is to set free from bondage a believing person. And if the slain belonged to a (non-Muslim) people with whom you have a covenant, then the atonement is to pay the blood-money to 1717 his heirs, and to set free from bondage a believing person. But he who cannot (free a slave) should fast for two consecutive months. This is the penance ordained by Allah. Allah is All-knowing, All-Wise ". f. Ayat No. 157 Sura 07, Al-A `raf: "(Today this Mercy is for) those who follow the ummi Prophet, whom they find mentioned in the Torah and the Gospel that they have. He enjoins upon them what is good and forbids them what is evil. He makes the clean things lawful to them and prohibits all corrupt things and removes from them their burdens and the shackles that were upon them. So those who believe in him and assist him, 1718 and succor him and follow the Light which has been sent down with him, it is they who shall prosper." g. Ayat No.04 Sura 58, Al-Mujadalah: "And he who does not find a slave (to free), shall fast for two months consecutively before they may touch each other, and he who is unable to do so shall feed sixty needy people. All this is in order that you may truly believe in Allah and His Messenger. These are the bounds set by Allah; and a grievous chastisement awaits the unbelievers." h. Ayaat 19, 20 Sura 80, Abasa of Holy Quran: 1719 "Of a small life-germ; He created him, them empowered him; Then (as for) the way--He has made it easy for him." i. The principle of Taiseer may be illustrated from a ruling of the second caliph when he did not enforce the had penalty of amputation of hand for theft during a widespread famine. He is also reported to have imposed a ban on the sale of slave-mother (ummal-walad). Principle of Taiseer partakes of the principle of Istehsan which is not only an integral part of Shariah but an important branch of Ijtehad. It is inspired by the values and principles of Shariah. This principle can also be deduced from the following verses of Holy Quran: 1720 j. Ayat No.55, Sura 39. Al-Zumr: "And follow the best of what has been sent down to you from your Lord." The following traditions of the Holy Prophet p.b.u.h. can be referred with convenience in this regard: k. What the Muslims deem to be good is good also in the sight of Allah l. Harm is neither inflicted nor tolerated in Islam 1721 m Allah loves to see that His concessions are observed in the same way that His strict laws (Azaim) are obeyed n. The Prophet (p.b.u.h.) did not choose but the easier of the two alternatives so long as it did not amount to sin (Reported by Hazrat Aisha R.A) o. The best of your Deen is that which brings ease to the people These principles have provided for the Islamic Law necessary means to encourage flexibility and development of law for the solution of ever increasing human problems. 1722 Avoidance of hardship is a salient feature of the Islamic teachings. PRINCIPLE OF TAKHFEEF 31. The Principle of Reduction of Burden commonly known as Takhfeef finds mention in Ayat 28 Sura 4, Al-Nisa: "Allah wants to lighten your burdens, for man was created weak." This principle finds support from the following tradition of the Holy Prophit: Make thing easy; Do not create 1723 difficulties; Give good tiding; Do not incite hatred. (Tradition No.630 volume 5, Bukhari) PRINCIPLE OF LEGALITY 32. The Orders under examination also violate the Principle of legality. The principle of legality is in fact supremacy of rule of law. Supremacy of law has two clearcut objectives: al protection of human freedoms, b/ limitation on the power of persons who exercise authority on behalf of the State. This concept pre-supposes the existence of a legal rule before its violation 1724 can generalized. The rule has to be upheld in all circumstances. This age old principle is expressed in Latin as Nulla Crime Nulla Poena Sine legs. The consequences of this rule are that penal statutes have to be followed strictly and that penal provisions cannot become retroactive. In other words a penalty can be imposed only if the impugned action had been declared an offence before the proposed action and proceedings are initiated. Muslim Jurists discovered this principle from the following Ayaat of Holy Quran:a. Ayat No.38 Sura 08, Al-Anfal: "(O Prophet), tell the unbelievers that if they desist from evil, their past deeds shall be forgiven and if they revert to 1725 their past ways, then it is well-known what happened with the people of the past. b. Ayat No.15 Sura 17, Bani Israel: "He who follows the Right Way shall do so to his own advantage; and he who strays shall incur his own loss. No one shall bear another's burden. And never do We send a Messenger (to make the Truth distinct from falsehood)." c. Ayat No.59 Sura 28, Al-Qasas: "Your Lord would not destroy a town until He had sent to its centre a 1726 Messenger who would recite to them Our verses. Nor would We destroy any town unless its inhabitants were iniquitous." On the basis of these Injunctions the Muslim Jurists deduced the principles that an impugned action cannot be termed as crime unless it has legal sanction: This is by now a universally acknowledged principle. The American Jurisprudence has introduced the "due process clause". No criminal liability can be imposed without fair notice in advance. Every arbitrary and discriminatory action by state authority has to be avoided. The Constitution of Pakistan in Article 12 recognizes this principle in the following words: 1727 "(1) No law shall punishment of a person- authorize the (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. (2) Nothing in clause (1) or in Article 270 shall apply to any law making acts of abrogation or subversion of a Constitution in force in Pakistan at any time since the twenty-third day of 1728 March, one thousand nine hundred and fifty-six, an offence." It is therefore clear that the impugned Martial Law Orders, put into effect by force, denied to the petitioners, the rights and privileges available to them under the Trusts Act, 1882, without following the principles of Natural Justice or Principle of legality action adverse to the interest of the petitioner was taken. There was no legal trial and the properties of the petitioners were confiscated. The Impugned Orders are therefore violative of the injunctions of Islam referred to above. REVOLUTIONS DONOT ALTER TRUSTS 1729 33. The conquest of Mecca in January, 630 AD corresponding to Ramzan 08 A.H, is a historic event. It has also established certain principles of law. On the Political side a silent bloodless revolution had effected a change in the administrations. At this point of time the restoration of key of the House of Allah to Usman bin Talha established a new principle in the Islamic Jurisprudence that even a revolutionary change of government will not alter the existing right of a trustee to continue retaining the legal office of trustee-ship which office shall remain with the progeny of the trustee till eternity. The said Usman was the custodian and trustee of the Holy Kaaba and had on one occasion" contumaciously denied to the Holy Prophet (p.b.u.h.) the opportunity of entering the Kaaba when he was in Mecca and had not migrated yet to Yasreb. On the event of conquest of Mecca, when Usman 1730 surrendered the keys of the House of God to the Prophet of God (p.b.u.h.), a few senior companions coveted the opportunity to be entrusted with the sacred key and thus become custodian or trustees of the house of God. The Holy Prophet (p.b.u.h.) however, restored the key to the said Usman. In this view of the matter we are obliged to restore the Trust to its rightful owners. THE SEVENTH SCHEDULE 34. Learned counsel for the petitioner very candidly stated that an objection could be taken against him that since the Presidential Order No.04 of 1978 finds mention in the 7th Schedule of the Constitution of Pakistan so it is not amenable to the jurisdiction of this Court. We are conscious of the fact that 1731 certain laws were mentioned in the 7th Schedule and it was stated therein that these law could be amended in the manner provided for amendment of the Constitution. This 7th Schedule' has nexus with Article 271A (Clause 6). It is abundantly clear that only the procedure for amendment of these laws has been mentioned in the 7th schedule but these laws are not part of the Constitution. In this view of the matter the Federal Shariat Court has the jurisdiction to examine any legal instrument On the touchstone of Injunctions of Islam. Moreover the recently promulgated Constitution (Eighteenth Amendment) Act, 2010 has, by virtue of section 91 (b) substituted clause 6 of Article 271A of the Constitution with the following new clause:"(6) The laws referred to in clause (1) 1732 may be amended by the appropriate Legislature in the manner provided for amendment of such laws". This clearly means that the laws referred to in clause (1) may be amended by appropriate Legislature in the manner provided for amendment of such laws. The jurisdiction of this Court is not restricted to the manner in which the laws under examination are amended. The jurisdiction vests in this court to examine every instrument having the force of law on the touch stone of Injunctions of Islam. STATUS OF IMPUGNED ORDERS 35. The impugned Martial Law Orders are 1733 consequently of no legal effect as these instruments suffer on account of following legal infirmities: i. The impugned Orders, when examined on the touchstone of above mentioned Injunctions of Islam are found utterly deficient. The Orders under survey are repugnant to a number of Injunctions of Islam. ii Action adverse to the interests of petitioners was taken against the petitioner trustees and they were penalized and forced to run from pillar to post when there was neither any irregularity nor any complaint nor breach of any legal provision whatsoever. 1734 iii. Neither any show-cause notice was served upon the petitioner trustees nor were the petitioners asked to submit explanation to one or more specific charges before the action of confiscation of property by Chief Martial Law Administrator. A penalty can be imposed only if an action is covered by the mischief of a offence which has been declared an offence before the action complained of was committed. iv. The petitioners were denied the right of appeal or representation before any independent tribunal. The lawfully established Constitutional Courts were debarred, by naked force, from adjudicating upon petitions moved by petitioners against Martial Law Orders and Authorities, though the Courts 1735 continued functioning throughout the country and dispensed justice in accordance with law. The Martial Law Orders proceeded to usurp the lawful jurisdiction of Courts in the case of a legal person. v. During the pendency of Constitution Petition No. 501 of 1977 of the petitioner-trustees in the High Court of Sindh at Karachi, the Chief Martial Law Administrator through an arbitrary executive fiat issued Martial Law Order No.21 on 17-10-1977 against the fundamental principles of Islam. The lawfully constituted court was stopped from calling in question the decree of the Martial Law Administrator. Clause 3 of the impugned Order proclaimed as under: 1736 "This order shall have effect notwithstanding anything contained in the Peoples Foundation Trust Deed of 9th day of August, 1974 as amended from time to time, or in any law including a Martial Law Regulation or a Martial Law Order or other instrument having the force of law or in any contract or an agreement and shall not be called in question in or before any Court including the Supreme Court and a High Court. " vi. The four impugned Martial Law Regulations were neither promulgated by chosen representatives of the people nor were these instruments issues under the umbrella of the Constitution. The 1737 Constitution is the only legal document which determines the forum as well as the procedure for the promulgation of laws; vii. There was consequently no debate, consultation, counsel or consensus by constitutionally recognized institutions before issuance of the Orders under examination; viii. The impugned Martial Law Order were promulgated without recourse to she provisions of section 92 of the Code of Civil Procedure, 1908 and Chapter 2 and 4 of the Trust Act 1882 which were existing laws in terms of constitutional provisions. The Constitution and laws of land do not authorize an adventurer to 1738 override the provisions of the Code of Civil Procedure, 1908 and or Trust Act. 1882 and take punitive action against a legal entity over and above the prescribed course. These laws were in existence and fully operative in 1977 when the impugned Orders were promulgated ix. The impugned orders were promulgated only to punish one particular person and no other Trust, duly registered under the Trust Act, in Pakistan was either taken over or its nomenclature changed. x. The element of Bias and bad faith cannot be ruled out in this case. The person issuing the impugned regulations 1739 was also the person responsible for the over throw of the Government of Zulfikar Ali Bhutto and order his immediate arrest. General Muhammad Zia-ul-Haq himself decided unilaterally to take over the trust property of the family of Zulfikar Ali Bhutto. So long as General Zia-ul-Haq lived he saw to it that the petitioners are denied every possible remedy to challenge his arbitrary and unilateral action of take over of the trust. As a matter of last resort the General Muhammad Zia-ulHaq amended the Constitution and added 7th Schedule which declared that the Zulfikar Ali Bhutto Trust and Peoples Foundation Trust (Renaming and Administration) Order, 1978 (P.O. No.4 of 1978) could be amended in the manner provided for the amendment of Constitution. There was thus an 1740 intentional act to create insurmountable hurdle in the way of petitioners. This is against the principle of Taiseer of Islamic Jurisprudence. It has also been urged that that venom of General Muhammad Zia-ul-Haq was so intense that he did not permit the petitioners even to attend burial ritual of Zulfikar Ali Bhutto, whose dead body was secretly flown to Larkana while the petitioners were kept in confinement elsewhere. In this view of the matter the only inference is that the Martial Law Regulations were not motivated with fair intentions. Bias is the paralysis, complete or partial, of judicious faculties and a person who is personally interested cannot be arbitrator according to Islamic provision. The law demands transparency Justice should not only be done but seen to be done. The aggrieved 1741 parties and people should be satisfied that the action taken did not lack bona fides. Justice and laws weld the broken ties. They do not cut asunder human freedoms. Justice is a Divine attribute. It is always pro-people. Laws and justice cannot be anti-people. xi. The initial action of the Chief Martial Law Administrator in issuing Martial Law Order No.21 dated 17th October, 1977 whereby the Peoples Foundation Trust created by late Zulfiqar Ali Bhutto, the elected Prime Minister of Pakistan, was taken over after deposing him through a Military coup and the subsequent actions by way of issuance of three other impugned Orders to carry out the errand mentioned in MLA Order 21 whereby the lawful trustees, by show of 1742 naked force were debarred from exercising their rightful statutory and religions duties, obligations and functions, which were otherwise safeguarded by The Trust Act, 1882 and the Code of Civil Procedure 1908 and further the act of seizing all the assets, records and moneys of the Trust was taken in utter violation of the Injunctions of Islam. xii. Section 92 of the Code of Civil Procedure, 1908 read with Chapters 3 and 4 of The Trusts Act, 1882 provide a forum for enquiring into and taking action against the trustees. The Martial Law Order bye-passed these legal provisions which, under Article 227 of the Constitution, are presumed to be not violative of the Injunctions of Islam. 1743 Neither the Council of Islamic Ideology nor the Federal Shariat Court had ever held the said provisions of the Code of Civil Procedure or the Trusts Act, 1882 to be repugnant to the Injunctions of Islam. Unless these two institutions, created by the Constitution, declare any law or a provision of Law to be averse to the Injunctions of Islam, the presumption is that all existing laws are in conformity with Islamic principles. The laws have to be obeyed, observed and implemented. No one is above law. xiii. Article 24 of the Constitution of Islamic Republic of Pakistan mandates in unambiguous terms that no person shall be deprived of his property save in accordance with law. The property of the petitioners was not taken over for a 1744 limited period to exclude it from the protection contemplated by Article 24 ibid. The action of Chief Martial Law Administrative was clearly violative of Article 24 of the Constitution. xiv. Promulgation of Martial Law Order No. 21 dated 17-10-1977 by Chief Martial Law Administrator targeted only one Trust out of innumerable Trust operating in the Country. It therefore created a divide amongst the various Trusts functioning all over Pakistan. Such an instrument which discriminates among the equals is void ab initio as it offends various provisions of Constitution and law. Hence it is ultra Vires of various provisions of Constitution and law including Articles 4, 23 and 25 of the Constitution. 1745 xv. The procedure of take over of the Trust adopted by General Muhammad Zia-ul-Haq was alien to the domain of law. One man cannot combine in himself the status of a complainant, a grabber as well as an arbitrator and an executor. Such an act has no sanction in Islamic teachings. No Jurisprudence from any Jurisdiction in this globe approves such a unilateral action. Ayat 115 of Sura 04, Al-Nisa, forbids following a path other than the path of believers. The path of believers is paved with consensus, mercy and accommodation. This aspect of the case is violative of the Injunctions of Islam which vouch-saves transparency in the administration of justice. xvi. General Assembly of the United 1746 States had proclaimed Universal Declaration of Human Rights which was accepted by the Members State. Article 8 of this declaration declares: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 17 of the' declaration declares as under:"1. Everyone has the right to own property alone as well as in association with others. 1747 2. No one shall be arbitrarily deprived of his property. Article 19 of the declaration is in. the following words: "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." (Emphasis Added) These three above mentioned principles form part of Universal Jurisprudence and have to be kept in view by the Legislature Executive and Judiciary of any State. 1748 xvii. The following tradition of are Holy Prophet (p.b.u.h.) makes it incumbent upon every Judge must declare every wrong a illegal action as of the no legal effect: "It has been narrated on the authority of Umm Salama that the Messenger of Allah (may peace be upon him) said: In the near future there will be Amirs and you will like their good deeds and dislike their bad deeds. One who sees through their bad deeds (and tries to prevent their repletion by his hand or through his speech), is absolved from blame, but one who hates their bad deeds (in the heart of his heart, being unable to prevent their recurrence by his hand or his 1749 tongue), is (also) safe (so far as God's wrath is concerned). But one who approves of their bad deeds and imitates them is spiritually ruined. People asked (the Holy Prophet): Should not we fight against them? He replied: No, as long as they say their prayers. (Sahih Muslim (English Translation) Vol.III, Pages 1032-1033, Hadith No. 4569)." xviii. In this view of the matter, the four impugned Martial Law Orders are void, ineffective, without lawful authority being repugnant to the above-mentioned Injunctions of Islam. BENEFICIENT LEGISLATION 1750 36. (a) The impugned .Martial Law Orders are also violative of the principle enunciated in Ayat No.17 Sura 13, Al-Ra'd of Holy Quran which states: "Allah sends down water from the heavens and the river-beds flow, each according to its measure, and the torrent carries along a swelling scum. In like manner, from that metal which they smelt in the fire to make ornaments and utensils, there arises scum like it. Thus does Allah depict truth and falsehood. As for the scum, it passes away as dross; but that which benefits mankind abides on the earth. Thus does Allah explain (the truth) through examples. The principle of beneficent legislation 1751 is thus clearly enunciated in this Ayat. No legislation or even an Executive Order which is not for the benefit of people can hold field according to this injunction. (b) The impugned orders are also violative of the following principles established at the time of the conquest of Mecca. Another principle in the domain of legislation and administration of justice is that if the lawgiver or the arbiter happens to be a person who is either personally aggrieved by the opposite party or who has played a successful part in bringing about a change in the government through revolution or conquest to the detriment of the opposite party he shall then neither be an arbiter in the cause of his opponents nor shall he pass any order to the detriment of his 1752 adversaries. This principle also finds support from Ayat No.04 Sura 48, Muhammad, wherein only two options are given as regards the fate of the defeated foe i.e. the prisoners of war should either be freed as an act of grace or released after payment of ransom. The option of social, political, economic or physical murder is not available at all. PRECEDENT LAW 37. In the famous case of Nusrat Bhutto, which was also initiated by petitioner No.1 and is reported as PLD 1977 Supreme Court 657 the Supreme Court of Pakistan, it was held as under: 1753 "That, accordingly, the superior Courts continue to have the power of judicial review to judge the validity of any act or action of the Martial Law Authorities if challenged in the light of the principles underlying the law of necessity as set out in this judgment. Their powers under Article 199 of the Constitution thus remain available to their full extent, and may be exercised as heretofore, notwithstanding anything to the contrary contained in any Martial Law Regulation or Order, Presidential Order or Ordinance; and 38. In the case of Sindh High Court Bar Association v. Federation of Pakistan, PLD 2009 Supreme Court 879, this very finding was reaffirmed at page 1001. 1754 39. Martial Law Regulation No. 115 known as Land Reforms Regulation was the subject-matter of examination by the Federal Shariat Court in the case of Qazalbash Waqf and others vs. Chief Land Commissioner, Punjab, Lahore and others reported as PLD 1990 Supreme Court 99. It was held by the Shariat Appellate Bench of the Supreme Court that the Federal Shariat Court as well as the Shariat Appellate Bench of the Supreme Court have the jurisdiction and the powers under Chapter 3-A of Part VII of the Constitution to examine Martial Law Regulation and to decide whether or not the provisions thereof are repugnant to the Injunctions of Islam. In that case certain provisions of the regulation were in fact held to be violative of the Injunctions of Islam. We are therefore in no doubt as regards our jurisdiction to examine Martial Law Orders 1755 impugned in this petition. 40. The essence of Ayaat Nos.62 and 63 of Sura 4, Al-Nisa and Ayat No.114 of Sura 11- Hud, of Holy Quran, is that there is no use referring the matter to a tyrant for its resolution. The petitioners having been debarred by an absolute ruler through specially implemented Orders from seeking redress from the High Court of Sindh, ultimately decided to make a petition in this court. The significant feature of the jurisdiction of this Court is that law of limitation does not apply to these proceedings. Any citizen can challenge any provision at any time on the touchstone of Injunctions of Islam. 41. It would be advantageous to refer to 1756 some of the articles of Cairo Declaration on Human Rights in Islam at this juncture as they are relevant to the subject under consideration. This Declaration was adopted and issued at the Nineteenth Islamic Conference of Foreign Ministers of the Member States of the Organization of Islamic Conference on 5th August, 1990: "Article 8: Every human being has the right to enjoy his legal capacity in terms of both obligation and commitment. Should this capacity be lost or impaired, he shall be represented by his guardian. Article 15: 1757 (a) Everyone shall have the right to own property acquired in a legitimate way, and shall be entitled to the rights of ownership, without prejudice to oneself, others or to society in general. Expropriation is not permissible except for the requirements of public interest and upon payment of immediate and fair compensation. (b) Confiscation and seizure of property is prohibited except for a necessity dictated by law. Article 16: Everyone shall have the right to enjoy 1758 the fruits of his scientific, literary, artistic or technical production and the right to protect the moral and material interests stemming therefrom, provided that such production is not contrary to the principles of Shari'ah. Article 19: a) All individuals are equal before the law, without distinction between the ruler and the ruled. b) The right to resort to justice is guaranteed to everyone. c) Liability is in essence personal. 1759 d) There shall be no crime or punishment except as provided for in the Shari'ah. e) A defendant is innocent until his guilt is proven in a fair in which he shall be given all the guarantees of defence. Article 22: a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah. 1760 b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah. c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith. d) It is not permitted to arouse nationalistic or doctrinal hatred or to do anything that may be an incitement to any form of racial discrimination. 1761 Article 23: a) Authority is a trust; and abuse or malicious exploitation thereof is absolutely prohibited, so that fundamental human rights may be guaranteed. b) Everyone shall have the right to participate, directly or indirectly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah. 42. The impugned Martial Law Orders are also repugnant to the five basic values of Islam which are commonly known as 1762 Maqasid-e-Shariah. Reference Muhammad Aslam Khaki versus State PLD 2010 FSC 1 at page 106 wherein paragraph 85K reads as follows: K. "Another reason that has weighed with us is that according to Islamic teachings the Divine revelation is purpose-oriented. Muslim Jurists have recognized a few Objectives of Shariah, known as Maqasid-e-Shariah. These objectives are in fact guarantees for the betterment of humanity. The five basic principles or the five values/five Maqasid-e-Shariah are as follows:(i) Preservation of Deen (Religion) 1763 (ii) Preservation of Intellect (iii) Preservation of Life (iv) Preservation of Property and (v) Preservation of Progeny The second value i.e. preservation of Intellect (Tahafaz-e-Aql) is not possible without education for which reading and writing is the minimum requirement. Consequently any prohibition on reading and writing material would be tantamount to the basic philosophy of Islam. It is a Deen wherein the first word of the first revelation is IQRA i.e, 1764 READ, Denial of reading and wring could be a denial of a fundamental injunction of Islam: "Thus does Allah make His commandments manifest and clear for you that you may reflect" Ayat 220 Sura 2 (Al-Baqra) The fourth guarantee mentioned therein is the preservation of property of individuals. It is therefore abundantly clear that without recourse to legal provisions no one can be deprived of his property nor can he/she be restrained from pursuing remedies from the Courts duly established under law. Any attempt to deny a rightful owner from the 1765 exercise of his right over the property or denial to pursue remedies would be struck down as being repugnant to the Injunctions of Islam. 43. The primary object of examination of laws by the Federal Shariat Court under Article 203D of the Constitution is to uphold the Injunctions of Islam as enunciated in Holy Quran and Sunnah of the Holy Prophet (p.b.u.h.). The meaning and scope of the term Islam is establishment of peace which is possible only if Justice prevails in the society. Justice is a permanent value according to a number of Injunctions of Holy Quran. Adl is an attribute of Allah and He loves justice. The interests of the nation are best served when the Executive, Legislative and Judicial machinery of the State adheres to the principles of Justice and 1766 fair play i.e. Adl and Ehsan. More particularly when the rights of citizens are involved. The rights and freedoms of individuals are guarded by law, the Constitution and above all the Injunctions of Islam. Justice among people, though a purely mundane activity, has been declared an act of piety in the estimation the Lord Creator. The question of non-adherence to the legal provision under the garb of impugned Martial Law Orders which resulted in the mutilation of basic rights of petitioners has arisen in this petition which calls for a verdict of the Federal Shariat Court in the light of teachings of Islam. We are constrained to observe that notwithstanding God gifted rights, duly guaranteed by law and Constitution, the petitioners were denied their share by Martial Law Authority with the result that the aggrieved persons had to suffer 1767 additional agony of protracted litigation. It is not the first time that Martial Law Orders mutilated rights of individuals in the Islamic Republic of Pakistan. It is time the judicial organ of the State refuse to accept such arbitrary provisions which are promulgated by adventurers under the garb of Martial Law. 44. Before parting with the discussion undertaken in this judgment we would take this opportunity of referring to a few passages from the historic letter of Imam Ali R.A. addressed to Malik-e-Ashter, the Governor of Egypt. This letter is a statement of principles of good governance and administration of justice as established by different Injunctions of Islam: 1768 "Malik! you must never forget that if you are a ruler over them then the Caliph is the ruler over you and God is the Supreme Lord over the Caliph. And the reality is that the Caliph has appointed you the Governor and tried and tested you through the responsibility of this rulership over them. Never think of raising yourself to such a false prestige that you dare declaring war against God. Because you cannot ward off His Punishment and Revenge and you can never be free from the need-of His Mercy and Compassion: "Do not feel ashamed to forgive and to forget. Do not hurry over punishments and do not be pleased and proud of your power to punish: Do not get angry and lose your temper quickly ovey the 1769 mistakes and failures of those over whom you rule. On the contrary, be patient and sympathetic with them. Anger and desire of vengeance are not going to be of much help to you in your administration. "Never say to yourself "I am their Lord, their ruler and all in all over them and that I must be obeyed submissively and humbly ". Because such a thought will unbalance your mind, will make you vain and arrogant, will weaken your faith in religion and will make you seek support of any power other than that of God (perhaps that of your party or of your Government). If you ever feel any pride or vanity on account of your sway and rule over your subjects then think of the supreme sway and rule of the Lord 1770 over the Universe, the extent of His creations, the supremacy of His Might and His Control over you which is more dominating than you can ever achieve yourself over anything around you. Such thoughts will cure your mental weakness, will keep you away from vanity and rebellion (against God), will reduce your arrogance and haughtiness and will take you back to the sanity which you arrogance and haughtiness and will take you back to the sanity which you had foolishly deserted. "Take care, never think of bringing yourself in level to God, never think of matching our power with Him and contesting His, Glory, and never pretend that you possess might and power like Him, because the Mighty Lord will 1771 always humble pitiless tyrants and will degrade all pretenders of His Power and Might." Lastly we would be relying on Ayat No.1 Sura 14, Ibrahim of Holy Quran which addresses, in particular, all those who administer the affairs of State including judiciary. "Alif. Lam. Ra. This is a Book which We have revealed to you that you may bring forth mankind from every kind of darkness into light, and direct them, with the leave of their Lord, to the Way of the Mighty, the Innately Praiseworthy." CONCLUSION 1772 45. As a consequence thereof, all the steps taken, actions suffered, and all orders passed by any court, tribunal or any authority including Martial Law Establishment, under any of the impugned Orders, are also declared repugnant to the aforementioned Injunctions of Islam, and thus never to have existed in the eyes of law and resultantly of no legal effect. The presumption would be that the situation that prevailed immediately before 17th October, 1977 i.e. the date of issuance of Martial Law Order No. 21 of 1977 is still continuing. VERDICT OF COURT 46. As a result of examination of the four impugned Martial Law II Orders we hereby 1773 declare that: (i) Martial Law Order NO.21 dated 17th October 1977; (ii) Martial Law Order No.26 dated 28th September, 1977 issued by Martial Law Administrator Zone "C". (iii) President's Order No.4 of 1978 dated 26th March, 1978; (iv) President's Order 6 of 1979 dated 28th February, 1979 are in entirety repugnant to the above mentioned Injunctions of Islam. The decision of this Court regarding the afore-mentioned 1774 impugned Martial Law Orders shall take effect from the date of announcement of this judgment/decision. M.A.K./16/FSC accordingly Order 1775 PAKISTANI PROVINCIAL HIGH COURTS ON HUMAN RIGHTS IN ISLAM 1776 2011 P L C (C.S.) 1259 [Islamabad High Court] Before Muhammad Anwar Khan Kasi, J Ms. FARAH NAZ, ASSISTANT REGISTRAR, QUAID-I-AZAM UNIVERSITY, ISLAMABAD Versus QUAID-I-AZAM UNIVERSITY, ISLAMABAD through Registrar and 2 others Writ Petition No.675 of 2011, decided on 14th March, 2011. (a) Constitution of Pakistan (1973)------Art. 199---Constitutional petition--Promotion---Statutory body---Petitioner was Assistant Registrar in the University 1777 which was a statutory body---Grievance of petitioner was that despite her being senior to respondent, she had been ignored for selection against the post of Deputy Registrar in next higher grade---Validity--Policy of statutory body should not be in conflict with fundamental rights for ulterior motives or mala fide---Competent authority was under obligation to determine eligibility of employees for grant of higher grade---It was also prime obligation of the functionaries to redress grievance of their subordinates and efforts should be made to bring out an egalitarian society based on Islamic concept of fairplay and social justice and authorities should never be a reason to create unnecessary hardships or unrest among the employees---Post in question was to be filled on promotion basis out of the existing employees and, therefore, selection of respondent was 1778 arbitrary---High Court declared the placing of name of respondent for promotion against the post of Deputy Registrar in supersession of petitioner, as illegal, unjurisdictional and against the principles of promotion policy---Petition was allowed accordingly. (b) Constitution of Pakistan------Art. 199---Constitutional jurisdiction, exercise of---Scope---Promotion--Principles---Whenever there is a mala fide or discriminatory action leading to violation of constitutional guarantees, the constitutional courts have ample authority to interfere for redressal of such grievance--Law in any case has to be geared properly and injustice in the form of supersession has to be curbed, so that people may not 1779 have a general sense of deprivation or discomfort otherwise there has to be a chaos in the society and people lose confidence in all institutions---Like all other modern Constitutions, the Constitution of Pakistan emphasizes upon fundamental rights and such rights in any case have to be provided by the courts as guardians of citizens---Provision of Art.199 of the Constitution empowers the court to exercise jurisdiction in matters where merit is being ignored---In any case merit-cumseniority has to be recognized. Sheikh Riaz-ul-Haq for Petitioner. Muhammad Munir Preacha along with Samiullah Khan and Humayun Khan, Assistant Registrar, Quaid-i-Azam University, Islamabad for Respondents. Date of hearing: 11th of March, 2011. 1780 JUDGMENT MUHAMMAD ANWAR KHAN KASI, J.--- Through this writ petition, the petitioner challenges her supersession by the respondents Nos.1 and 2 as she being the senior most Assistant Registrar has been ignored for selection against the post of Deputy Registrar in BPS-18. 2. It is her case that in response to an advertisement by the Quaid-i-Azam University, she applied for the post of Assistant Registrar as she had the required qualification of master's degree and four years teaching/administrative experience of the education department. Her qualification and experience was considered and she was selected on merit vide order dated 28-82006, while she joined the university on 4-9-2006. Since then her performance had been up to the mark and there had never been any complaint or inquiry against her 1781 and, therefore, she is promotion against the Deputy Registrar as qualification of master's years experience. entitled for the vacant post of she fulfils the degree and eight 3. Her grievance is that the respondent No.3, being junior to her is being considered for the post of Deputy Registrar and the management has decided to place his name in the forthcoming meeting of syndicate. She has, therefore, prayed for the issuance of a writ against the selection of respondent No.3 for appointment as Deputy Registrar and an action in accordance with law with respect to appointment of Deputy Registrar. 4. The respondents Nos.1 and 2 contested the petition by filing parawise comments, wherein maintainability of the petition was challenged on the point of jurisdiction and being premature as no decision has yet been 1782 taken about the appointment of respondent No.3 as Deputy Registrar. 5. On merits, it is stated that the respondent No.3 and the petitioner both were selected in the same Selection Board and the requisite qualification for promotion is master's degree with at least eight years teaching or administrative experience in responsible position at a university or education department. According to the respondents she lacks eight years experience and her period of posting in a school cannot be taken into consideration for counting the requisite experience. 6. The respondent No.3 despite service, neither submitted any counter affidavit nor appeared before the Court. 7. Since the parties have addressed their arguments at full length and also submitted 1783 their respective documents, which were perused learned counsel. Therefore, the petition in hand is being decided as Admitted Case. 8. The admitted fact of the case is that the petitioner applied for the post of Assistant Registrar which requires master's degree and four years teaching or administrative experience. Here degree and experience were considered as fulfilling the requirement and, therefore, she was appointed by the Selection Board. It is also admitted position that she joined the university on 4-9-2006 and has got 4-1/2 year experience at her credit as Assistant Registrar, while there is no document on record to show the joining report of the respondent No.3. 9. The respondents Nos.1 and 2 seem to have concealed the facts by not producing any document in this regard. It is obvious 1784 from the conduct of the respondents that they are not contesting the petition with clean hands and somewhere at some place there seems to be some pick and choose policy to benefit some favourite person instead of making the promotion on the basis of merit and seniority. The university cannot take a stand by stating that the lady lacks eight years experience because the university had accepted her previous four years teaching/administrative experience by appointing her as Assistant Registrar and now they cannot take a hot and cold breath at the same time. The law of estoppel is fully attracted in the present case and after considering her previous four years experience with that of present 4-1/2 year experience, she becomes entitled for appointment against the post of Deputy Registrar in PBS-18 10. Article 27 of the Constitution 1785 very specifically states that there shall be no discrimination in service on the basis of sex alone while Article 25 also states that all the citizens are equal in the eyes of law and there shall be no discrimination on the basis of sex, creed or religion. 11. The respondents Nos.1 and 2 in their parawise comments have not questioned the performance of petitioner and have not made any allegation about the quality of her work. 12. According to the university service statute, the seniority in each cadre shall be determined on the basis of date of joining in each cadre. The respondents have failed to show the joining date of respondent No.3 and, therefore, by no stretch of imagination he can be considered senior to the petitioner. 1786 13. The policy of a statutory body should not be in conflict with fundamental rights or ulterior motives or mala fide. The competent authority is under obligation to determine eligibility of the employees for grant of higher grade. It is also the prime obligation of the functionaries to redress grievances of their subordinates and the efforts should be made to bring out an egalitarian society based on Islamic concept of fair-play and social justice and the authorities should never be a reason to create unnecessary hardships or unrest among the employees. 14. The said post is to be filled on promotion basis out of the present employees and, therefore, the selection of respondent No.3 seems to be arbitrary. The stand taken by the university about the prematurity of the petition is not accepted because, the factual position is that the 1787 name of respondent No.3 is going to be placed before the syndicate while the name of petitioner has been ignored. The petition, therefore, cannot be considered as premature. 15. As far as the point of jurisdiction is concerned, it is suffice to say that whenever there is a mala fide or discriminatory action leading to the violation of constitutional guarantees, the constitutional courts have ample authority to interfere for the redressal of grievance. The law in any case has to be geared properly and the injustice in the form of super-session has to be curbed, so that people may not have a general sense of deprivation or discomfort otherwise there will be a chaos in the society and people would lose confidence in all the institutions. 16. The Constitution of Pakistan like all other modern constitutions emphasizes 1788 upon fundamental rights and such rights in any case has to be provided by the courts as guardians of the citizens and Article 199 of the Constitution empowers the court to exercise jurisdiction in matters where merit is being ignored. In any case merit-cumseniority has to be recognized. 17. In view of the above, the petition is accepted. The placing of respondent No.3's name for promotion against the post of Deputy Registrar in super-session of petitioner is declared illegal, unjurisdictional and against the principles of promotion policy. There shall be no order as to costs. M.H./28/Isl Petition allowed. 1789 2010 Y L R 1647 [Karachi] Before Muhammad Ali Mazhar, J Flt. Lt. (Dr) SHARIQ SAEED---Plaintiff Versus MANSOOB ALI KHAN and 5 others--Defendants Suit No. 1774 of 2008, decided on 19th April, 2010. (a) Civil Procedure Code (V of 1908)------S.11---Res judicata, doctrine of--Essential principles---Essential principles of 1790 res judicata are that a relief which is or which can be claimed and prayed for by a litigant, through one recourse to law, cannot be claimed or prayed for again by the sane litigant before same forum---Principle of res judicata aims to save the court from being vexed repeatedly by a litigant for the same relief or for a relief which could have been claimed or prayed for by him in earlier action---In order to support plea of res judicata, former decision must have been on merits of question in issue in subsequent litigation and it should be inter se parties having same cause of action, subject-matter and claim---If anyone of such elements is missing, provisions of S.11 C.P.C. would not be applicable---Principle of doctrine of res judicata is that judgments and decrees bind only the parties. 1791 Malik Gul Hassan and Co v. Federation of Pakistan through the Secretary, Ministry of Health Islamabad and 9 others 1995 CLC 1662 ref. (b) Civil Procedure Code (V of 1908)------O. VII, R.11---Rejection of plaint--Disputed questions of fact or law---Effect--In case of controversial questions of fact or law, provisions of O. VII, R.11, C.P.C. cannot be invoked---Proper course for court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with law---Court may, in exceptional cases, consider legal objection in the light of averment of written statement but pleadings as a whole cannot be taken into 1792 consideration for rejection of plaint under O. VII, R. 11, C.P.C. Karachi Transport Corpn, and another v. Muhammad Hanif and others 2009 SCMR 1005; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board PCB and 2 others PLD 2008 SC 650 ref. (c) Defamation Ordinance (LVI of 2002)-----S.3---Constitution of Pakistan (1973), Arts. 14 & 19---Defamation---Dignity of man---Freedom of speech---Principles--Freedom of expression is one of those 1793 fundamental rights which are considered to be the corner stone of democratic institutions---Right of free speech extends to all subjects which affects way of life without limitation of any particular fact of human interest and includes in the main term `freedom of expression'---Right of freedom of speech and expression carries with it the right to publish and circulate one's idea, opinion and views with complete freedom and by resorting to any available means of publication---Right of freedom of speech and expression is not unfettered and unbridled---Absolute and unrestricted such individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty---While allowing freedom of speech and expression as a fundamental right, it is also provided under Art. 14 of the Constitution, that dignity of man, subject to law, the privacy of home are 1794 inviolable---Such principle is required to be extended further to the case where any defamation is caused, because human dignity, honour and respect is more important than comforts and necessities--No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace other person, thereby diminishing, decreasing and degrading dignity, respect, reputation and value of life---Provisions of Art. 14 of the Constitution, providing for dignity of man as a fundamental right, is the most valuable right---Dignity of man is not only provided by Constitution of Pakistan, but according to history and under Islam, great value has been attached to dignity of man and privacy of home---While exercising right of freedom of speech and expression, one has to keep in his mind that he has also a corresponding responsibility and duty to 1795 ensure that his freedom of expression or speech may not transgress limits of freedom beyond the boundaries of Art.14 of the Constitution. Plato Films Ltd. v. Speidal 1961 A.C. 1090 and 1961 and 1 All. E.R. 876 ref. (d) Defamation Ordinance (LVI of 2002)-----Ss.3 & 9---Civil Procedure Code (V of1908), S.11 & O.VII, R.11---Rejection of plaint---Res judicata, principle of--Plaintiff was aggrieved of allegations made by one of the defendants in her suit for dissolution of marriage and filed suit for recovery of damages---Defendants sought rejection of 1796 plaint on the principle of res judicata as matter had already been decided in earlier suit for dissolution of marriage---Validity--Suit was not hit by res judicata as in criminal proceedings no F.I.R. was lodged by plaintiff or his aunt on account of any defamation under Ss. 500 or 501 P.P.C.---In fact, F.I.R. was lodged by aunt of plaintiff but plaintiff was not complainant in that case---Case of plaintiff was for recovery of damages on account of libel and main cause of action was against allegations levelled in the suit filed for dissolution of marriage by way of Khula, therefore, suit was not hit by principle of res judicata---Question regarding entitlement of plaintiff to claim any damages on account of his alleged defamation could only be decided once the appropriate issues were framed and evidence was recorded in the suit---Defendants had already filed their written statements and 1797 they would also be at liberty to raise their defence in accordance with Defamation Ordinance, 2002---High Court declined to reject plaint under O. VII, R.11 C.P.C.--Application was dismissed in circumstances. Malik Gul Hassan and Co. v. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others 1995 CLC 1662; Province of Sindh and another v. Shams-ul-Hassan and others; 2009 MLD 1093 Karachi Transport Corpn, and another v. Muhammad Hanif and others 2009 SCMR 1005; Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others 1994 SCMR 826 and Saleem Malik v. Pakistan Cricket Board PCB and 2 others PLD 2008 SC 650 ref. 1798 Nasir Maqsood for Plaintiff. Syed Ansar Hussain for the Defendants Nos.1 to 6. ORDER MUHAMMAD ALI MAZHAR, J.---By this order, I will dispose of C.M.A. No.11433 of 2009 filed by the defendant under Order VII, Rule 11, C.P.C. The Suit pertains to the Recovery of Damages on account of alleged Defamation, Wrongful Assault and Battery, Trespass, Illegal restraint and wrongful confinement. 1799 Brief facts of the case are that the plaintiff had married to defendant No.2 but Rukhsati was kept in abeyance for some time with the mutual consent of the elders. The defendant No.1 being father of defendant No.2, after some time of Nikah, started finding fault with the said marriage and creating obstacles on one pretext or the other to wind up the wedlock arrangement and therefore, the idea of Rukhsati appeared to be dropped. The attempts were made for reconciliation by the Aunt of the plaintiff Ms. Fareeda Zeab, but the defendants decided not to honour the contract of Nikah and therefore they abandoned the obligation of Rukhsati. It is further alleged in the plaint that since the plaintiff and his family was not happy with such move of breaking the marriage, the plaintiff came from Peshawar to resolve the issue in an amicable manner with the defendant No.2 without any intervention of 1800 others. A meeting was proposed to be held on 1st May, 2008 at the house of defendant 1Vo.3 at Karachi. In the said meeting, the plaintiff along with his Aunt Ms. Fareeda Zeab went to the house of defendant No.3 and the moment they entered into the drawing room, the defendant No.6 stepped in after couple of minutes and started beating the plaintiff. It is further stated in the plaint that subsequently, it transpired to the plaintiff that the defendant No.2 filed a Family Suit No.375 of 2008 against the plaintiff in the Court of Xth Civil and Family Judge, Karachi-West for Khula. In paragraphs (4), (5) and (6) of the memo of plaint, following false and baseless allegations were levelled against the plaintiff:-"That after Nikah, it has been established 1801 that the defendant is the vagabondish person and has suspicious character". "That the defendant having illicit involvement with the bad character women and with so called own noble/prestigious relation". "That the defendant is having liberal immoral mental approach upto the unlimited negativity and the plaintiff belongs to a noble and religious family and she cannot even think of it". The Family Suit was fixed for pre-trial on 810-2008, since the defendant No.1 declined to join the plaintiff and exhibited extreme hatred against him, the pre-trial failed and 1802 Khula was granted. The plaintiff after having come to know that consequent upon the decree granted in the aforesaid Family Suit, the defendant No.1 in collusion with other defendants is communicating to other relatives, friends and colleagues of the plaintiff regarding the offending contents of the plaint containing scurrilous allegations of scandalous nature, hence a legal notice dated 18-11-2008 was sent to the defendants Nos.1 and 2 which was returned unserved. The plaintiff had mentioned all the above facts in the legal notice and also claimed that the plaintiff is defaming, injuring the reputation and causing enormous loss to the plaintiff. The plaintiff again sent a notice of action through registered post A/D on 2811-2008 which was duly received and replied on behalf of the defendants No.1 and 2 through their learned counsel vide reply dated 16-12-2008, wherein the defendants 1803 Nos. 1 and 2 had not denied the averments of notice but they rather endorsed and affirmed the allegations against the plaintiff and further asserted that it was good-luck of the plaintiff that the evidence was not recorded before the Court of law as in such eventuality, the plaintiff would have been held answerable for the same. The plaintiff further alleged that cause of action arose initially on 1-5-2008 when the plaintiff kept in wrongful custody and illegal confinement and was subjected to assault and further cause of action accrued on 8th October, 2008 when the defendants Nos.1 and 2, after the decree was passed in the Family Suit, managed to falsely represent before the public at large and amongst the known circle of the plaintiff by communicating the slanderous remarks as contained in the memo of plaint filed in the Family Suit and also thereafter, by distributing the copies of 1804 the said plaint amongst the colleagues, friends, and other persons to the entire detriment of the plaintiff's reputation and continuously doing propaganda by spoken words and by showing the copies of the plaint containing scandalous allegations with false representation that the decree had been granted as the allegations were proved. It is further alleged in the plaint that cause of action further arose on 18-11-2008 when the notice of action was sent to the defendant and subsequently when the defendants sent their reply on 16-12-2008 in which the defendants proceeded to further affirm and endorse the scandalous allegations. In the application filed under Order VII, Rule 11 read with section 151, C.P.C. the defendants have stated that the plaintiffs has placed his case upon an incident in which 1805 the plaintiff and his Aunt were subjected to criminal harassment and in that respect, an F.I.R. was registered. The case was investigated by the police several times and a report was submitted to the Court that no such incident has occurred and a minor incident of "Tu Tu Mai Mai" was glorified. It is further submitted in the application that in any case, the police submitted a charge sheet on the orders of the learned Magistrate which was considered by this Court and criminal proceedings were quashed. It is further stated that against the order, the plaintiff and her Aunt preferred a petition before Supreme Court of Pakistan, which petition was dismissed. The defendants in the application prayed that the plaint be rejected at this stage instead of pending the same, which amount to the harassment. 1806 Along with the application, the learned counsel for the defendants has also filed copies of F.I.R. No.210 of 2008 lodged by Ms. Farida Zaed and order of this Court passed in Cr. Miscellaneous. Application No.114 of 2009, whereby the F.I.R. No.210 of 2009 registered at Police Station Saudabad was quashed. The learned counsel also attached a copy of order passed by the honourable Supreme Court on 17th September, 2009, whereby the order passed by this Court in Cr. Miscellaneous Application No.114/2009 was affirmed. The learned counsel for the defendants in support of his application also filed an additional statement in which he asserted that Suit is barred under sections 11, C.P.C. In response to the application, the plaintiff filed his counter-affidavit in which he totally 1807 denied the averments made in the application under Order VII, Rule 11, C.P.C. and stated that he never lodged any F.I.R. nor his present case is wholly based on the incident mentioned therein. The F.I.R. was lodged by his Aunt Ms. Farida Zaeb. The plaintiff further stated that he has filed the present Suit for claiming damages on account of actionable wrong of the defendants in defaming him and causing undue restraint of his liberty and other omissions and commissions which formed the part of pleadings. In the nutshell, the plaintiff wants to place that his Suit is based on actionable wrong and in the criminal proceedings, he was not the complainant and no F.I.R. was lodged for libel and slander but in the present Suit, he has claimed the damages on account of defamation. 1808 I have heard the learned counsel for the parties. The main thrust of the arguments of the learned counsel for the defendants was that the F.I.R. lodged by Ms. Farida Zaeb has been quashed and, therefore, the present Suit is hit by res judicata. In support of his arguments, he relied upon a judgment reported in 1995 CLC 1662 Malik Gul Hassan and Co. v. Federation of Pakistan through the Secretary, Ministry of Health, Islamabad and 9 others in which the learned Balochistan High Court in a Constitutional Petition held that whenever there is a judgment by a competent Court having jurisdiction, inter parties, it will prevent a fresh Suit or proceedings between them regarding the same matter. It has been further held in the same judgment that doctrine of res judicata is of universal application and in fact a fundamental concept in the organization of every judicial 1809 system. If a cause has been definitely determined by a competent Court or Tribunal, it shall be accepted as "irrefragable legal truth". The learned counsel further argued that the judgment passed by this Court in quashment petition may be considered in this Suit as solid evidence against the plaintiff, hence the present Suit is hit by principle of res judicata. In the above judgment cited by the learned counsel the facts of the case were that a Constitutional Petition came up for preliminary hearing and notices were issued to the Advocate-General and Standing Counsel. However, the petition was dismissed by the Division Bench of Balochistan High Court. Feeling aggrieved, the petitioner had approached the honourable Supreme Court in which the counsel appearing for the petitioner candidly submitted that the petitioner will have to file some other legal proceedings, inter alia, for 1810 impugning the Ordinance and, therefore, he did not press petition for leave to appeal with the clarification that the observation made by the High Court on factual aspects will not be considered as res judicata. On this statement, the learned counsel for the parties agreed that both the parties will be at liberty to raise whatever factual and legal pleas as may be available to them in any future proceedings which may be initiated by either of the parties and that any observation in the impugned order of the High Court will not prejudice either of the parties. On this firm statement, the petition in the Supreme Court was disposed of as withdrawn. The facts and circumstances mentioned in the aforesaid reported judgment are highly distinguishable to the facts of the present case. 1811 In order to press the provisions of section 11, C.P.C. five conditions are very important: (i) The matter directly and substantially in issue in the subsequent Suit must be the same matter, which was directly and substantially in issue actually or constructively in former Suit; (ii) The former Suit must have been a Suit between the same parties or between the parties under whom they or any of them claim; (iii) The parties as aforesaid must have litigated under the same title in the former Suit; 1812 (iv) The Court which decided the former Suit must have been a Court competent to try the subsequent Suit in which such issue is subsequently raised; and (v) The matter directly or substantially in issue in subsequent Suit must have been heard and finally decided by the Court. The essential principles of res judicata are that a relief which is or which can be claimed and prayed for by a litigant through one recourse to law cannot be claimed or prayed for again by the same litigant before the same forum. The principle of res judicata aims to save the Court from being vaxed repeatedly by a litigant for the same relief or for a relief which could have been claimed 1813 or prayed for by him in earlier action. In order to support a plea of res judicata, the former decision must have been on merits of the question in issue in the subsequent litigation and it should be inter se parties having same cause of action, subject-matter and claim. If anyone of these elements is missing, this section would not be applicable. The principle of this doctrine is that the judgment and decrees bind only parties. The learned counsel for the plaintiff argued that though the plaintiff was not the complainant in the F.I.R, even otherwise the defendants cannot claim res judicata. He has referred to the cause of action and averments of the plaint wherein the main cause of action is based on account of alleged defamation made by the defendant No.1 in 1814 her plaint for Dissolution of Marriage. The learned counsel for the plaintiff states that after failure of pre-trial and passing of decree for dissolution of marriage by way of Khula, the defendant No.1 along with other defendants circulated the copy of plaint to show that Khula was granted on the basis of alleged libelous averments made in the plaint. He further argued that for the purpose of rejection of a plaint under Order VII, Rule 11, C.P.C, only the averments of the plaint should be looked into and even the documents filed in defence are not liable to be considered. He further argued that judgment passed by the Court in criminal cases cannot be considered as the criminal case has no relevance for the determination of civil liability. The standard of appraisements of evidence in criminal and civil cases are altogether different and findings of criminal Courts would not be 1815 binding on civil Court. In support of his contention he relied upon judgment reported in 2009 MLD 1093 Province of Sindh and another v. Shams-ul-Hassan and others in which the main defence of the defendant was that one of the defendants had been acquitted by the trial Court from the criminal case. In response to this plea the learned Division Bench of this Court observed that fate of criminal proceedings had no relevance for the purpose of determination of the civil liability as in civil case judge of facts must find for the party in whose favour there was preponderance of probability, though evidence be not entirely free from doubts while in criminal cases, the factum of incident should be proved beyond any reasonable doubt. Even the acquittal findings of guilt in criminal case did not carry bearing for adjudication of civil cases in any manner. In the same line of 1816 arguments, he further relied upon judgment reported in 2009 SCMR 1005 Karachi Transport Corpn. and another v. Muhammad Hanif and others in which it has been held that standards of appraisement of evidence in criminal and civil cases are altogether different and findings of criminal Court would not be binding on civil Court. As regards the basic principle of Order VII, Rule 11, C.P.C. is concerned, it is clear that while deciding such application only the contents of the plaint are to be looked into without any extraneous consideration. In support of this plea, the learned counsel for the plaintiff relied upon a judgment reported in 1994 SCMR 826 Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others in which it has been held that the rejection of plaint under Order VII, Rule 11, C.P.C. is contemplated at a stage when the Court has 1817 not recorded evidence in the Suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the Suit being barred under some provision of law. The Court while taking action for rejection for plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendants in the Suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. The learned counsel further relied upon another judgment reported in PLD 2008 SC 650 Saleem Malik v. Pakistan Cricket Board PCB and 2 others in which the Honourable Supreme Court has held that the plaint in the Suit cannot be rejected on the basis of defence plea or material 1818 supplied by the opposite party with the written statement. This is settled law that in case of controversial questions of fact or law, the provision of Order VII, Rule 11, C.P.C. cannot be invoked rather the proper course for the Court in such cases is to frame issue on such question and decide the same on merits in the light of evidence in accordance with the law. The Court may in exceptional cases, consider legal objection in the light of averment of the written statement but the pleadings as a whole cannot be taken into consideration for rejection of plaint under Order VII, Rule 11, C.P.C. From the aforesaid judgment of the honourable Supreme Court, it is clear that while deciding an application under Order VII, Rule 11, C.P.C. only contents of the plaint are to be seen and defence cannot be considered. While deciding the civil cases, the judgments passed in criminal cases have 1819 no relevance and standard of proof of evidence are altogether different in both species of litigation. It is advantageous to point out that before promulgation of Defamation Ordinance 2002, the suits based on law of Torts/Libel or Slander of recovery of damages were being filed under the common law. However, in the year 2002 a special law has been promulgated in which certain provisions have been incorporated relating to law of defamation. In this Ordinance, publication means the communication of the words to at least one person other than the person defamed and to include a newspaper or broadcast through the Internet or other media. Communicating defamatory matter to some person other than the person of whom it is written is publication in its legal 1820 sense. If the statement is sent straight to the person of whom it is written, there is no publication of it. The words "complained of" should be communicated to some person other than the plaintiff. Section 3 of the Ordinance provides that any wrongful act or publication or circulation of a false statement or representation made orally or in written or visual from which injures the reputation of a person, tends to lower him in the estimation of others or tends to reduce him to ridicule, unjust criticism, dislike, contempt or hatred shall be actionable as defamation. The same section further provides that defamation is of two forms namely (i) slander and (ii) libel. Any words will be deemed defamatory which expose the plaintiff to hatred, contempt, ridicule, or obloquy, or tend to injure him in his profession or trade, and cause him to be shunned or avoided by his neighbours. 1821 Everyman has an absolute right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent personal right of everyman and a man's reputation is his property and, if possible more valuable than other property. The concept of defamation is as old as the hills and the Pakistan Penal Code makes no distinction between written and spoken defamation and the term "defamation" includes both libel and slander. "Denigratio alienate framae", in the Latin of the medieval schoolman. A good name is better than great riches. According to Shakespeare in Othello, Act II, Scene 3165: "Good name in man and woman, dear my lord, 1822 Is the immediate jewel of their souls; Who steals my purse, steals trash; tis something nothing; T was mine, 'tis his, and has been slave to thousands; But he that filches from me my good name, Robs me of that which not enriches him, And makes me poor indeed." The speech of Lord Denning in Plato Films 1823 Ltd. v. Speidal 1961 A.C. 1090 and 1961, 1 All. E.R. 876 provides helpful guidance as to the kind of evidence, which is admissible to show bad or good reputation, as the case may be. The defendant may mitigate damages by giving evidence to prove that the plaintiff is a man of bad general reputation and the plaintiff may rebut it by coming prepared with friends who have known him to prove his reputation has been good. Lord Denning in his speech states that in order to arrive at a man's character and reputation, you should call those who know him and have had dealings with him, for they provide the only sound foundation on which to build, if it is evidence of good character, a witness of good standing is called such as a clergyman, schoolmaster or an employer and is asked such questions as these: "What are you? How long have you known him? Have you known him well? 1824 Have you had an opportunity of observing his conduct? What character has he borne during that time for honestly, morality or loyalty?"... Defamation may be broadly defined as a false statement of which tendency is to disparage the good name or reputation of another person. Section 4 of the Defamation Ordinance 2002 further provides that publication of defamatory matter is actionable wrong without proof of special damage to the person defamed and where defamation is proved, damage shall be presumed. In section 5 of the same Ordinance, certain lines of defence have also been provided for the defendant to prove that he was not the author, editor, publisher 1825 or printer of the statement complained of; the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith; it is based on truth and was made for public good; assent was given for the publication by the plaintiff; offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff; an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff; the matter complained of was privileged communication such as between the lawyer and client or between having fiduciary relations; and the matter is covered by absolute or qualified privilege. The legislature has also provided two kinds of privileges, one is absolute privilege and another is qualified privilege. Any 1826 publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government shall have the protection of absolute privilege while any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievance shall have the protection of qualified privilege. Before taking action under this Ordinance, notice of action is mandatory. Section 8 of the Ordinance provides that no action lies unless the plaintiff has, within two months after the publication of the defamatory matter has 1827 come to his notice or knowledge, given to the defendant, fourteen days' notice in writing of his intention to bring an action, specifying the defamatory matter complained of. The remedies are available under section 9 of the Ordinance which says that where defamation shall proved to have occurred, the Court may pass order directing the defendant to tender any apology, if acceptable to the plaintiff, and publish the same in similar manner and with the same prominence as the defamatory statement made and pay reasonable compensatory damages as general damages with a minimum of Rs.50,000 and in addition thereto, any special damage incurred that is proved by the plaintiff to the satisfaction of the Court. Award of general damages is comprised on three conditions such as (a) vindication, (b) injury to reputation, (c) injury to feelings. The amount of damages 1828 awarded in respect of vindication and injury to reputation and feelings depends on number of factors such as (a) the gravity of the allegation (b) the size and influence of the circulation (c) the effect of the publication (d) the extend and nature of the claimant's reputation (e) the behaviour of the defendant (f) the behaviour of the claimant. The standard of proof is the normal civil standards of the balance probabilities. However, in common with a plea of justification to serious charges, the evidence must be clear and cogent. Proof of a state of mind can only be inferred from the facts. Section 11 of the Ordinance clearly stipulates that Ordinance not to prejudice any action for criminal defamation which means that the Ordinance does not prejudice any action for criminal libel or slander under any law for the time being in force which makes clear that both remedies are available 1829 to an aggrieved person and he is at liberty to file both, civil and criminal proceedings against the actionable wrong simultaneously and there is no bar imposed under the Ordinance. Though under Article 19 of the Constitution of Islamic Republic of Pakistan freedom of speech and expression is a fundamental right which provides that every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court (commission of) or incitement of an offence, Freedom of expression is one of those fundamental rights which are considered to be the corner stone of democratic 1830 institutions. The right of free speech extends to all subjects which affect ways of life without limitation of any particular fact of human interest and c include in the main term "freedom of expression". Moreover the right of freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication. However, the right of freedom of speech and expression is not unfettered and unbridled. Absolute and un-restricted individual rights do not exist in any modern State and there is no such thing as absolute and uncontrolled liberty. While allowing freedom of speech and expression as a fundamental right, our Constitution also provides under Article 14 that the dignity of man and, subject to law, the privacy of home shall be inviolable. The principle is required to be extended further 1831 to the cases where any defamation is caused, because the human dignity, honour and respect is more important than physical comforts and necessities. No attempt on the part of any person individually, jointly or collectively to detract, defame or disgrace another person, thereby diminishing, decreasing and degrading the dignity, respect, reputation and value of life. This provision providing for the dignity of man as a fundamental right is the most valuable right. Dignity of man is not only provided by Constitution of Pakistan, but according to history and belief under Islam great value has been attached to the dignity of man and the privacy of home. So in all fairness, while exercising the right of freedom of speech and expression, one has to keep in his mind that he has also a corresponding responsibility and duty to ensure that his freedom of expression or speech may not 1832 transgress the limits of freedom beyond the boundaries of Article 14 of the Constitution. Reverting back to present case, I am of the view that the assertion of the learned counsel for the defendant that present Suit is hit by res judicata is not correct as in the criminal proceedings no F.I.R. was lodged by the plaintiff or his Aunt on account of any defamation under section 500 or 501, P.P.C. In fact, F.I.R. was lodged by the Aunt of the plaintiff but the plaintiff was not complainant in the case. The present case of the plaintiff is for the recovery of damages on account of libel and main cause of action is against the allegations levelled in the Suit filed for the Dissolution of Marriage by way of Khula, therefore I am of the view that the present Suit is not hit by the principle of res judicata. 1833 From the contents of the plaint, it is clear that the main claim of the plaintiff is against the libelous allegations levelled against him in the Family Suit. The plaintiff further claims that a notice of action was tendered upon the defendant No.1 in which the defendant No.1 aggravated the situation. All these questions whether the plaintiff is entitled to claim any damages on account of his alleged defamation can only be decided once the appropriate issues are framed and evidence is recorded in the Suit. The defendant have already filed their written statement and they will be also at liberty to rise their defence in accordance with Defamation Ordinance 2002. The present application under Order VII, Rule 11, C.P.C. is not maintainable which is dismissed accordingly. 1834 M.H./S-30/K Application dismissed. 1835 P L D 2007 Karachi 405 Before Muhammad Moosa K. Leghari, J MUHAMMAD YOUSUF and 2 others---Applicants Versus THE STATE---Respondent Criminal Bail Applications Nos.365, 397 and 403 of 2006, decided on 9th October, 2006. (a) Criminal Procedure Code (V of 1898)--- ----Ss. 497, 156-B & 103---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.13, 14 & 18---Bail, grant of---State Counsel opposed the grant of bail to accused in a routine manner and was utterly unable to advance any rational and/or plausible argument to support the case of prosecution---Prosecution had attempted in vain to establish that accused, being male and female were found indulging in immoral acts, the acts constituting sexual intercourse---Neither any allegation was mentioned in the F.I.R. nor any evidence had been collected by the Investigating Agency to allege that any of the accused had sold, purchased, hired, disposed of or taken possession of any said person for prostitution, which was the basic element of Ss.13, 14 & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Such basic element being missing in the whole story there was thus absolutely no evidence to show that some person was selling any person or for that matter buying any person with the intent of using such person for the purpose of prostitution---Prosecution story was absolutely improbable and utterly unbelievable and militated against common sense---Even if it was believed that accused were in objectionable position as alleged, it would not mean that they were involved in the act of commission of Zina---Proof of Zina required hard and solid evidence and not the imagination of a petty police official---Investigation of the case was conducted by an A.S.-I. and women accused were arrested without permission of the court---Provisions of S.156-B, Cr.P.C. in circumstances were flagrantly violated by the police and command of law was practically rendered null and void---Complainant police officer along with police party entered the premises without any search warrants---Despite spy information, complainant did not take any step to associate any private person of the locality to watch the proceedings---Provisions of S.103, Cr.P.C. had been violated in circumstances, which was not condonable---Police officer not only conducted search in flagrant violation of provisions of law, but had breached the Injunctions of Islam, violated provisions of the Constitution, flouted law and acted in contravention of Police 1836 Rules/Order---Magistrate accepted the challan and took cognizance of offence in a mechanical manner, in disregard of provisions of law, without examining the material produced by the prosecution and without proper application of mind---Accused as well as any other person in the custody in consequence of registration of said F.I.R., would thus be released forthwith. (b) Constitution of Pakistan (1973)--- ----Art. 14--Dignity of man---Article 14 of the Constitution provided inviolable right to dignity of the man---Injunctions of Islam and the law of land, were intended to protect and preserve fundamental rights of dignity of man and privacy of home---Violation of privacy of home through arbitrary intrusion by the police, without authority of law was absolutely unwarranted being repugnant to the concept of human rights relatable to the dignity of man and privacy of home. (c) Criminal Procedure Code (V of 1898)--- ----S. 190---Cognizance of offences by Magistrate---Cognizance---Concept---Under provisions of S.190, Cr.P.C. Magistrate could take cognizance; upon receiving the complaint of facts which constituted offence; upon report in writing of such facts made by any police officer; and upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence had been committed---Magistrate, only after taking cognizance of a case was to determine whether the matter before him was exclusively triable by a court of Session---Once the Magistrate arrived at the conclusion that it was so triable, his own jurisdiction to try same would cease and in such event he must send the case to the Court of Session for trial---Word `Cognizance' would not mean merely preparation to deal with the matter without application of one's mind. Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314 and Mehar Khan v. Yakub Khan and another 1981 SCMR 267 ref. (d) Administration of justice--- 1837 ----Duty and function of Judicial Officer---Judicial Officer was not only expected and supposed to know the law, but was required to continue updating his knowledge of law---District and Sessions Judges being the Head of District/Sessions Division in their position as Team Leader, were further expected to act as Role Model and must impart legal knowledge to the Judicial Officers subordinate to them---Ignorant Judicial Officer could never, be able to deliver and dispense even-handed justice, more particularly to the downtrodden and least privileged classes of the society. (e) Criminal Procedure Code (V of 1898)--- ----S. 561-A---Wrong caused by police---Remedy---Inherent powers of High Court---Wrong caused by the police needed to be remedied at the earliest occasion---High Court had been bestowed with very wide, unbridled and indefinite inherent powers under S.561-A, Cr.P.C. to prevent the abuse of process of the court or otherwise to secure the ends of justice. M. Shafi Khan, Iftikhar Ali Hashmi and M.A. Qadir for Applicants. Ms. Shahida Jatoi, State, Counsel for Respondent. ORDER MUHAMMAD MOOSA K. LEGHARI, J.---The applicants/accused have been entangled by Shahrah-e-Faisal Police in Crime No.163 of 2006 registered on 28-3-2006 at the aforementioned Police Station on the complaint of S.I.P. Mumtaz Abro, for the offences punishable under sections 13/14/18 Offence of Zina (Enforcement of Hudood) Ordinance, 1979. 2. Brief facts of the case as narrated in the above cited F.I.R. are that on 28-3-2006, while the complainant was patrolling in the area in a private vehicle, along with police party he received a spy information that some male and female persons were indulging in prostitution in Flat No.A11/28 Jauhar Square Gulistan-e-Jauhar Karachi. On reaching at the pointed flat at 1740 hours he 1838 knocked the door of the flat which was opened. The complainant entered the premises and found the inmate male and female persons in objectionable position. They were made to put on their clothes. Since the accused named in the F.I.R. were found to have committed the offences punishable under sections 13/14 and 18 of Offence of Zina (Enforcement of Hudood) Ordinance, they were arrested, and the F.I.R. was registered against them. 3. It appears that after completing the investigation which was conducted by one A.S.I. Muhammad Akram charge sheet was submitted, which was accepted by the Magistrate concerned and R & Ps. were ordered to be transmitted to the Sessions Court. 4. Having failed to get bail from the trial Court, the applicants approached this Court. Arguments were heard and with the assistance of learned counsel material available on record was examined in context of the provisions of relevant law. Learned counsel for State however, opposed the grant of bail, in a routine manner, but was utterly unable to advance any rational and/or plausible arguments to support the case of the prosecution. 5. The applicants have been booked for offences under sections 13, 14 & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 it will be appropriate to reproduce hereunder, the relevant sections:- "13. Selling person for purposes of prostitution, etc.--Whoever sells lets to hire, or otherwise disposes of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine. 14. Buying person for purposes of prostitution, etc.--Whoever buys, hires or otherwise obtains possession of any person with intent that such person shall at any time be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose or knowing it to be likely that such person will at any time be employed or used for any such purpose, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes, and shall also be liable to fine. 1839 18. Punishment for attempting to commit an offence.--Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or whipping, or to cause such an offence to be committed and in such attempt does any act towards the commission of the offence, shall be punished with imprisonment for a term which may extend to one half or the longest term provided for that offence, or with whipping not exceeding thirty stripes or with such fine as is provided for the offence, or with any two of or all, the punishments." 6. The bare perusal of the above provisions of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 would demonstrate that section 13 provides for punishment to be inflicted on person(s), who sell(s), let(s) to hire, or otherwise dispose(s) of any person with intent that such person shall at any time be employed or used for the purpose of prostitution, or illicit intercourse or for any unlawful and immoral purpose. Whereas section 14 ibid provides for the similar punishment against person(s) who buy(s) hire(s) or otherwise obtain(s) possession of any person, with the same intention, while section 18 provides for the punishment for making attempt to commit such offence. Thus it would be obviously clear that the above sections provide for the punishment against the person or persons who indulge themselves in the business of selling and or purchasing, letting hire and/or hiring, or disposing of/taking possession of other person(s) with the intent that such person(s) shall be used for the purpose of prostitution, illicit intercourse or for any unlawful and immoral purpose. 7. It will be seen that on the basis of the allegations in the F.I.R. registered against the accused persons and the evidence so collected, the prosecution has attempted in vain to establish that the accused persons, being male and female were found indulging in immoral acts, the acts constituting sexual intercourse to be precise. Neither there is any allegation in the F.I.R. nor any evidence has been collected by the investigating agency to allege that any of the accused persons has sold, purchased, hired, disposed of or taken possession of any such person for prostitution. The basic element, which may attract the punishment against any of the accused persons, as stipulated under the aforementioned sections of the Ordinance is thus conspicuously missing in the whole story. 8. As observed above, there is absolutely no evidence to show that there was some person who was selling any person, or for that matter buying any person with the intent of using such person for the purpose of prostitution. The prosecution story is absolutely improbable and utterly unbelievable. It militates against the common sense. To say and believe that even after the inmates opened the door on the knock, of the police party still they could be without their clothings and that too in an objectionable position. Though it is hard to comprehend yet even if it is believed that the accused were in objectionable position as alleged, it would not mean that they were involved in the act of commission of Zina. Needless to say that the proof of Zina requires hard and solid evidence and not the imagination of a petty police official. 1840 9. It may not be out of place to state here that in order to protect innocent citizens from the miseries of petty police officials, and to avert false, malicious and dishonest investigation, the legislature in its own wisdom has suitably amended the Code of Criminal Procedure. Sections 156-A and 156-B have been inserted in the Code by promulgating Act No.I/2005 on 10-1-2005. The newly inserted amendment reads as under:-- "S. 156-A. Investigation of offence under section 295C, Pakistan Penal Code.--Notwithstanding anything contained in this Code, no police officer below the rank of a Superintendent of Police shall investigate the offence against any person alleged to have been committed by him under section 295-C of the Pakistan Penal Code, 1860 (Act XLV of 1860) S.156-B. Investigation against a woman accused of the offence of Zina.--Notwithstanding anything contained in this Code, where a person is accused of offence of Zina under the Offence of Zina (Enforcement of Huddood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested 'without permission of the Court". 10. It will be seen that according to provision contained in section 156-B where a person is accused of Offence of Zina under the Offence of Zina (Enforcement of Huddood), Ordinance 1979, no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court. Purpose of this amendment understandably seems to prevent unwarranted accusation and mala fide arrests on the charge of Zina. 11. It is sufficiently evident from the record that the investigation of the case was conducted by an ASI and the women accused were arrested without permission of the Court. Thus the provisions of section 156-B, Cr.P.C. were flagrantly violated by the police and stipulation and command of law was practically rendered null and void. 12. It is manifestly clear from the contents of the F.I.R. itself that complainant police officer 1841 along with police party entered the premises without any search warrants. Though he received spy information yet he did not take any step to co-opt. any private person of the locality to watch the proceedings as he did not deem it necessary. Needless to point out that for entering any place to be searched a police officer is required to call upon two or more respectable inhabitants of the locality to act as witness as stipulated under section 103, Cr.P.C. violation of the above provision of law is not condonable. 13. The Holy Quran has prohibited the act of intrusion into any ones house to only find out commission of offence of Zina. Unlike some other special laws, there is no provision in the Offence of Zina (Enforcement of Hudood) Ordinance (VII) of 1979 to permit the conduct of raid in a house for the purpose of discovery and unearthing the commission of Zina therein. As per true interpretation of Sura An-Nur Verses 27 and 28 of the Holy Qur'an right of privacy of home is inviolable and absolute. The translation of the abovenoted Verses by Abdullah Yousif Ali reads as under:- "27. O ye who believe: Enter not houses other than your own, until ye have asked permission and saluted those in them: that is best for you, in order that ye may heed (what is seemly). 28. If ye find none in the house, enter not until permission is given to you; if ye are asked to go back, go back: That makes for greater purity". 14. Article 14 of the Constitution of Islamic Republic of Pakistan provides inviolable right to dignity of the man. Indeed injunctions of Islam and law of the land, are intended to protect and preserve fundamental right of dignity of man and privacy of home. Violation of privacy of home through arbitrary intrusion by the police, without authority of law is absolutely unwarranted being repugnant to the concept of human rights relatable to the dignity of man and privacy of home. 15. But clandestine and spurious manner in. which the complainant police officer and the members of his party behaved and acted, adequately reveals that they egregiously encroached upon and invaded the privacy of home as ordained by Holy Qur'an and grossly infringed the dignity of man as enshrined in the Constitution of Islamic Republic of Pakistan by ruthlessly 1842 abusing their authority. In the case in hand, the police officer conducted search, in flagrant violation of the provisions of law, and undoubtedly acted in highly subversive, extremely arrogant and conspicuously callous and reprehensible and unlawful manner, inasmuch as, he breached the injunction of Islam, flagrantly violated the provision of Constitution, flouted the law and acted in contravention of police rules/order. 16. It was dismaying to note that the Magistrate concerned accepted the challan and took cognizance of the offence in a mechanical manner, in disregard of the provisions of law, without examining the material produced by the prosecution and without proper application of mind. 17. Section 190, Cr.P.C. provides for cognizance of offences by a Magistrate which he can take (a) upon receiving the complaint of facts which constitute the offence, (b) upon the report in writing of such facts made by any Police Officer and (c) upon information received from any person other than a Police Officer or upon his own knowledge or suspicion that such offence has been committed. It is only after taking cognizance of a case that the Magistrate has to determine whether the matter before him is exclusively triable by a Court of Session. Once he arrives at the conclusion that it is so triable, his own jurisdiction to try it ceases, and he must send the case to the Court of Session for trial. 18. The word `cognizance' does not mean merely preparation to deal with the matter without application of one's mind. The language of subsection (2) leaves no doubt that it is the duty of the Magistrate to apply his mind to the facts of the case in order to determine whether it is exclusively triable by a Sessions Court or it can be tried by another Court also. 19. In the case of Raja Khushbakhtur Rehman and another vs. The State in 1985 SCMR 1314 it was held that; "the word "cognizance" is a term of art implying application of mind to the facts of a case in order to determine whether the facts disclosed constituted an offence triable" 20. In the case of Mehar Khan vs. Yakub Khan and another reported as 1981 SCMR 267, it was as under: 1843 "A reading of subsection (3) of section 190, Cr.P.C., in the light of above-noted facts would, however, show that (i) before he can `send' a case for trial to the Court of Session, a Magistrate must, first, have taken cognizance of a case, under any one of the three clauses to subsection (1) of the section 190, Cr.P.C. In other words, he must either have received a private complaint under clause (a), or a Police report under section 173, Cr.P.C., as envisaged in clause (b), or he should be acting on any information received by him, as mentioned in clause (c). It is, therefore, evident that he cannot act under subsection (3) without having received a private complaint or a Police report (i.e. a challan either complete or incomplete) or some information from any other source. (ii) That although now a Magistrate is not required to hold an `inquiry' under Chapter XVIII, but that does not mean that he is to act merely as a post office and automatically `send' the case for trial to a Court of Session simply because a section relating to an offence exclusively triable by a Court of Session has been mentioned by the Police or the complainant (as the case may be) in the challan or the private complaint. He is, in fact, required on having taken cognizance of such a matter to enquire into the case and to apply his mind to whatever material is placed before him, by the Police or the complainant, if in order to determine whether the allegations made in the Police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session. (Emphasis supplied) 21. It will be pertinent to point out that consequent upon promulgation of Ordinance XXXVII of 2001 subsection (2) was deleted, and subsection (3) was re-numbered as subsection (2) of section 190, Cr.P.C. 22. It was yet another agonizing fact that Mrs. Akhtar A. Chaudhry Vth Additional Sessions Judge Karachi East even declined bail to women accused in a cursory manner on flimsy and imaginary grounds, in spite of the fact that inherent infirmities in the case of the prosecution were highlighted in the arguments advanced before her. The order of refusal of bail, in the circumstances, thus was tantamount to curtailing the liberty of the citizens without due process of law. To say the least this situation is painfully disgusting and needs to be quickly identified, arrested and rectified. 23. It may not be out of place to mention that the Judicial Officers are not only expected and 1844 supposed to know the law, but are required to continue updating their knowledge of. law. The District & Sessions Judges being the Head of District/Sessions Division in their position as Team Leader are further expected to act as Role Model and must impart legal knowledge to the Judicial Officers subordinate to them. It goes without saying that an ignorant Judicial Officer could never, ever be able to deliver and dispense with even-handed justice, more particularly to the downtrodden and least privileged classes of the society. 24. Be that as it may, the wrong caused by the police needs to be remedied at the earliest occasion. Undisputably, this, Court has been bestowed with Very wide, unbridled and indefinite inherent powers under section 561-A, Cr.P.C. to prevent the abuse of process of Court or otherwise to secure the ends of justice. Indeed in order to accomplish the object of doing real and substantial justice, the case in hand appears to be a fit case warranting the invocation of inherent jurisdiction of this Court to prevent the abuse of the process of court and to secure the ends of justice. As obviously apparent from the above discussion, the F.I.R. and consequent challan/charge sheet which is subject matter of present bail applications having been registered and investigated in flagrant disregard of law against fundamental rights as enshrined in Constitution and in violation of Ordinance 1979, and the subsequent proceedings emanating therefrom are sheer abuse of the process of Court, thus could not be allowed to continue. Consequently the proceedings arising out of F.I.R. registered vide crime No.163/2006 under sections 13/14/18 of Offence of Zina (Enforcement of Hudood) Ordinance 1979 at Police Station Shahrah-e-Faisal are hereby quashed. 25. Resultantly, the applicants, as well as any other person in custody in consequence of registration of the said F.I.R. shall be released forthwith. 26. These are detailed reasons for the short order passed on 1-6-2006. 27. In the light of above discussion, it is evidently clear that police party headed by complainant Sub-Inspector Mumtaz Ali Abro of Police Station Shahrah-e-Faisal abused their authority thus they rendered themselves liable to penal as well as disciplinary action. All concerned police personnel, therefore shall be proceeded against under the provision of Pakistan Penal Code, Police Order, and service laws, which have been flouted. 1845 Let a copy of this order be sent to Home Secretary Sindh and Provincial Police Officer Sindh for initiating appropriate action against the delinquent officials, with a further direction that all necessary steps be taken to prevent such flagrant abuse of authority by police officials in future. Let copy of the order be for warded to learned Member Inspection Team also for necessary action. H.B.T./M-45/K Bail granted. 1846 2002 C L C 139 [Lahore] Before Ijaz Ahmad Chaudhary, J BASHIR AHMED ---Petitioner Versus Chaudhry GHULAM SARWAR NOOR, M.I.C., LAHORE and 3 others---Respondents Writ Petitions Nos.2653, 2654 and 2829 of 1991, decided on 10th September, 2001. Punjab Vagrancy Ordinance (XX of 1958)--- ----S. 7---Constitution of Pakistan (1973), Arts.2A, 4, 10, 15, 25 & 199---Constitutional petition---Arrest and search of vagrants---Restriction on begging---Violation of Fundamental Rights---Petitioners who were of tender age, were rounded up by the police and were detained under relevant provisions of Punjab Vagrancy Ordinance, 1958---Vires of various provisions of the Ordinance were challenged by the petitioners on the ground that same were in violation of the Fundamental Rights guaranteed by the Constitution of Pakistan (1973), as those had encroached upon the free movement and free choice of profession of the citizens---Validity---Begging as envisaged by Punjab Vagrancy Ordinance, 1958 had been disapproved by Islam because beggars using fraudulent means of begging were professionals and even though able bodied they prepared to remain idle---Begging had not been approved by Islam except in the case of stress and dire necessity and begging by use of fraudulent means was condemned---Provisions of Punjab Vagrancy Ordinance, 1958 were not repugnant to the Injunctions of Islam -and it could not be said that the Ordinance was either contrary to Fundamental Rights or was violative of Injunctions of Islam. 1847 PLD 1985 FSC 344 ref. (b) Legislation--- ---- Making of law---State could classify the people for the purpose of Legislation and make law applicable only to persons of particular class. Asfand Yar Walt's case PLD 2001 SC 607 ref. (c) Constitution of Pakistan (1973)--- ----Art. 25---Reasonable classification---Making of law---State should classify the people for the purpose of legislation and make law applicable only to persons of particular class. Ms. Asma Jahangir for Petitioner. Muhammad Shan Gull for A.A.-G. for Respondents. Date of hearing: 26th June, 2001. JUDGMENT 1848 Writ Petitions Nos.2653, 2654 and 2829 all of 1991 are being disposed of through this judgment as they arise out of similar circumstances and are based on identical facts and points of law. It shall, however, remain on the file of Writ Petition 2654 of 1991. 2. The facts forming the background of these petitions briefly are that the petitioners numbering 16 in all are persons of tender age. They were rounded up by the local police from different parts of Lahore and detained under the relevant provisions of the Punjab Vagrancy Ordinance, 1958 (Ordinance No. XX of 1958), hereinafter referred to as "The Ordinance". 3. The petitioners have, through these petitions, challenged the vires of various provisions of the Ordinance mainly on the grounds, inter alia, that the provisions of the Ordinance are in violation of the Fundamental Rights guaranteed by the Constitution. It has been claimed, in particular, that under Article 10 of the Constitution, no one can be arrested or detained under any law providing for preventive detention unless procedure laid down in sub-Article 10(4) is strictly complied with. As the Ordinance clearly provides for preventive detention it obviously violates the provisions of Article 10; that Ordinance seeks to penalize a particular and a selected class of citizens hence it was discriminatory and offended against the provisions of Article 25 of the Constitution and so also the essence of Article 15 of the Constitution by restricting free movement of a citizen; that the petitioners who are destitute citizens and are absolutely innocent have been deprived of their liberty illegally; that the action of respondents was obviously against the spirit of Article 2A of the Constitution which envisages that principle of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed, that in these petitions social justice has been denied to the people who have been detained without any crime having been committed by them; that Islamically such type of poor persons could not have been detained rather State would have been responsible for providing them sustenance being resourceless and needy. 4. The respondents have stoutly resisted the petitions claiming, inter alia, that the Ordinance does not violate, in any manner, any Fundamental Right of the petitioners inasmuch as section 7(3) respects the requirements of Article 10(4) of the Constitution; that all the rights termed as Fundamental Rights in the Constitution are subject to reasonable restrictions in the interest of law and society in general; that the Ordinance provides for trial and, therefore, ensures fair procedure which is an essential part of the due process of law guaranteed by Article 4 of the Constitution. In fact that Ordinance basically requires that suchlike peoples are not to he allowed to roam about in the Society and instead they are taken to welfare homes where they are provided food and shelter. As for objection of discrimination, Article 25 of the Constitution allows the State to make reasonable classification. This law obviously was made for a special class of beggars and wanderers. As such there will be no question of discrimination. 1849 5. The arguments have been heard rather at length. The main emphasis of the learned counsel for the petitioner was that the Ordinance encroaches upon the free movement and free choice of profession of the citizens, hence was repugnant to various Fundamental Rights guaranteed by the Constitution. It was also contended that since Pakistan was not a welfare State as the State has failed to provide education, health care, employment benefits etc. to their citizens, there was no justification for imposing such harsh restrictions on the poor and needy citizens of the country; that instead of providing basic necessities to the citizens which is .a pre-requisite for a good Government, they are being jailed without any lawful justification. 6. From the respondents side it was argued that establishment of welfare system was meant to cater for the needs of poor, needy and jobless persons who had no means of livelihood and the Ordinance was enacted for controlling and eliminating vagrancy and nobody's interest or right has been infringed. 7. As for reasonable classification, it has been held time and again that State may classify the people for the purpose of legislation and make law applicable only to persons of particular class. Reference in this behalf may be made to Asfand Yar Wali's case PLD 2001 SC 607 where it was held that NAB Ordinance was a special legislation meant for special class of people and, therefore, cannot be struck down on the ground of discrimination. 8. The Ordinance has already been thoroughly examined by their Lordships of the Honourable Federal Shariat Court as reported in PLD 1985 FSC 344. After discussion on the provisions of the Ordinance, their Lordships had come to the conclusion that begging was not approved or encouraged by Islam. There were several traditions of Holy Prophet (p.b.u.h.) in which it has been decried as well as scorned. According to the view of their Lordships begging was only allowed for three types of persons:-- (1) One who would be in poverty. (2) One who has borne a great loss. (3) One who had to gay huge amount in Diyat. 1850 Hence it is abunduntantly clear that Islamically begging has not been approved except in the case of stress and dire necessity. The begging by use of fraudulent means was condemned. Finally the provisions of Ordinance were approved by the Federal Shariat Court and it was held that Ordinance was not repugnant to the Injunctions of Islam. Now after these findings of Federal Shariat Court which had the jurisdiction to declare any law to be repugnant to Islam, it does not befit us to say that Vagrancy Ordinance was either contrary to Fundamental Rights or was violative of Injunction of Islam. If it was Islamically okay then it surely does not offend against any Fundamental Rights. 9. In view of the findings of the Federal Shariat Court, I am afraid further examining about the provisions of Ordinance would not be legitimate exercise on our part. However, I cannot refrain from observing that such type of begging as envisaged by Ordinance has I clearly been disapproved by Islam because such-like beggars are professionals and prefer to remain idle even being able-bodied. Holy Qur'an describes the persons who really deserve charity:-- "S.II. 273 (Charity is) is for those in need, who, in God's cause Are restricted (from travel), and cannot move about. In the land, seeking (For trade or work). The ignorant man thinks, Because of their modesty, That they are free from want. Thou shall, Know them By their (unfairing) mark: They beg not importantly From all and sundry. And whatever of good Ye give, be assured God knoweth it well.." I0. The charity, is only permissible to those who are really and genuinely needy and do not adopt begging as a profession. It is, therefore, necessary for those who are charged with the administration of this Ordinance to keenly observe that whether a beggar is adopting beggary as a profession to avoid working and earning his livelihood and thus, becoming a parasite for the Society. If he appears to be a professional and a repeater, the provisions of Ordinance are very much applicable to -such a person. If, however, the relevant 'officials come to the conclusion that the beggar has been impelled by circumstances to provisionally resort to begging and is not a professional his would not be case of detention. I would, therefore, direct the administrative department of the Ordinance to issue directions to all concerned that they should keenly observe the persons and then come to the conclusion that whether they are professionals and thus, come under the mischief of the provisions of Ordinance or are genuinely to be needy who are required assistance and help from their well to do brothers in the Society. It appears that none of the petitioners was still under detention. In these circumstances the petitions are dismissed with the above direction to the Administrative Department who shall submit a compliance report to the Additional Registrar (Judicial) of this Court within six weeks after the receipt of the copy of the judgment. No order as to costs. 1851 H.B.T./B-54/L Order accordingly. 1852 2002 P T D 2850 [Karachi High Court] Before Ata-ur-Rehman and Muhammad Mujeebullah Siddiqui, JJ Messrs PAK OCEAN and others Versus GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Central Secretariat, Islamabad and others Civil Petitions Nos. 970, 1068, 1349, 1541 of 1991, 519, 520, 871 and 872 of 1992, decided on 10th July, 2002. (a) Customs Act (IV of 1969)--- ----Ss. 18(2) & 19---S.R.O. 702(I)/90, dated 1-7-1990---S.R.O. 584(I)/91---S.R.O. 585(I)/91, dated 27-6-1991---Constitution of Pakistan (1973), Arts. 2-A, 4, 18, 25 & 199---Constitutional petition---Imposition of regulatory duty on import of steel scrap in loose form, while excluding import of scrap in shredded and bundled forms---Reduction in rate of customs duty on shredded and bundled steel scrap, while leaving intact duty on import of scrap in loose form---Such change in duty structure was effected without reasonable classification and justification-Validity--Scrap in loose form was imported by small traders and such persons, who, did not have facility of furnace, while shredded scrap and bundled scrap was primarily imported by big investors and those having facility of furnace-.-End product i.e. billets, produced from scrap in shredded and bundled form and loose form was the same---No difference in duty structure on import of scrap in any of three forms prior to impugned Notifications S.R.O. 584 (I)/91 & 585(I)/91, dated 27-61991---Government had failed to specify any reasonable basis for separate classification of the 1853 import of scrap in bundled and shredded form in one category and import of scrap in loose form in other category---Such action was totally discriminatory against small investors/importers and provided undue advantage to big capitalists and investors---In absence of sufficient material justifying change in duty structure, treatment meted out to petitioners was arbitrary and mala fide---Such exercise entirely stood vitiated being violative of equal protection of law guaranteed by Arts. 4, 18 & 25 of the Constitution--High Court accepted Constitutional petitions, struck down impugned Notifications S.R.O. 584(I)/91 & S.R.O. 585(I)/91, dated 27-6-1991 being unConstitutional and directed respondent to stop charging of regulatory duty and refund regulatory duty and customs duty, if any charged in excess of customs duty prevailing before issuance of impugned notifications. Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; Collector of Customs, Excise and Sales Tax, Peshawar, v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; Messrs Central Insurance Co. v. The Central Board of Revenue, Islamabad 1993 PTD 766; M.A. Rahman v. Federation of Pakistan 1988 SCMR 691 and Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318 ref. (b) Constitution of Pakistan (1973)--- ----Arts. 2-A, 4, 18, 24 & 25---Mala fide and colourable act-Unreasonable act---Act without any basis and justification--Constitutional status of such acts elaborated. An Act, which is established to be mala fide and colourable cannot be regarded as an action in accordance with law and the rights guaranteed under the Constitution. If an act is not reasonable and is without any basis and justification, it is always for extraneous and irrelevant, consideration and is bound to be struck down being manifestly against the fundamental right guaranteed in the Constitution. Such an Act of discrimination cannot be countenanced in an Islamic polity. Islam lays great emphasis on the equality before law, equal protection under law, equal treatment in law, equal opportunities, free competition in the regulation of trade, commerce and industries. No discrimination of any kind is sustainable in a country, the Constitution whereof provides that the State shall exercise its power and authority in accordance with the principles of freedom, equality, social justice and guarantees the fundamental rights and opportunity before law and economic justice. Khalid Anwar for Petitioners. Syed Tariq Ali, Standing Counsel for Respondents. 1854 Date of hearing: 19th February, 2002. JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---A common question of law has been raised in all the above petitions, therefore, all the above petitions have been heard together and are disposed of by this single judgment. C.P. No. 970 of 1991 is treated as the leading petition and for the sake of convenience the facts are taken from the said petition. Following relief has been sought in C.P. No. 970 of 1991:--- "This Hon'ble Court maybe pleased to--- (1) declare the imposition of regulatory duty on remeltable iron and scrap in loose form and the grant of exemption to importers of bundled and shredded scrap through Notifications No. S.R.O. 91, dated 27-6-1991, to exercise of power under sections 18(2) and section 19 are unlawful, mala fide, arbitrary, unreasonable, and in violation of Articles 4, 18, 24, 25, 77 read with Article 2A of the Constitution; (2) declare that the exercise of discretionary power under sections 18(2) and 19 of the Customs Act can only be exercised in such manner and subject to such limitations as prescribed by law; (3) direct the respondent No.3 to stop charging the petitioner the regulatory duty; 1855 (4) direct the respondent No.3 to refund the customs duty charged and paid, if any, in excess of the just and proper rate; (5) declare that section 31-A of the Customs Act is violative of the Constitution; (6) direct the respondents to protect the L/Cs opened prior to 27-6-1991" 2. In all other petitions similar relief has been sought, although grounds have been couched in different language. 3. The relevant facts are that the petitioners are importers of remeltable iron and steel scrap in loose form, from various countries. The said scrap is classified under PCT heading No.72.04 (7204.4900). The said remeltable iron and steel scrap loose form, as well as bundled and shredded scrap are primarily used in the manufacturing of billets. All of them are classified as remeltable iron and steel scrap. The steel scrap in loose form is generally imported by small businessmen, while shredded scrap and bundled scrap is primarily imported by large businessmen who order huge consignments. 4. Prior to 27-6-1991 the customs duty on all forms of scrap was Rs.1,500 per metric ton and the sales tax was 12.5%. There was no difference in the duty structure of iron ad steel remeltrable scrap imported in Pakistan in loose, bundled or shredded form. 5. The petitioners entered into binding contract with sellers in foreign countries prior to 27-61991 for the import of remeltable iron and steel scrap. They opened irrevocable letter of credit as well. The consignment arrived after 27-6-1991. On arrival of consignment, the landed cost increased tremendously because of change in the duty structure and imposition of regulatory duty. Prior to 27-6-1991, there was no regulatory duty on import of scrap on any form. Vide Notification No.Nil/91, dated 27-6-1991, the respondent No.1, Government of Pakistan through Ministry of Finance, in exercise of powers under section 18(2) of the Customs Act, 1969 amended the Notification No. S.R.O. 702(I)/90, dated 1-7-1990 and imposed regulatory duty of Rs.1.500 per M.T. on all forms of remeltable iron scrap excluding bundled and shredded scrap of iron and steel. PCT heading No.7204.4100. On the same day another Notification No.Nil/91, was 1856 issued by the respondent No. 1, in exercise of powers under .section 19 of the Customs Act, 1969, thereby reducing the rate of duty on shredded and bundled iron and steel, from Rs.1,500 per M.T. to Rs.500 per M,T. 7. It is contended by the petitioners that the imposition of regulatory duty on remeltable iron scrap, excluding bundled and shredded scrap and the reduction in the rate of duty on bundled and shredded scrap is unlawful, arbitrary, unreasonable and ultra vires the Articles 4, 18, 24 and 25 of the Constitution. It is further averred that the said imposition of regulation duty is without reference to international ruling prices, proper analysis and investigation. According to petitioners, the grant of exemption to the importers of bundled and shredded scrap is unreasonable and arbitrary as both types are used for exactly the same purpose. The result of discrimination is that the iron and steel scrap imported in loose form by the petitioners has become very expensive as compared to the imports by big businessmen in the form of bundled and shredded scrap. The petitioners have further expressed grievance that the Customs Authorities have further increased the ITP value of the consignment imported by .the petitioners at U.S, Dollars 160 per metric ton, while they have reduced the ITP value of shredded scrap to U.S. Dollars 140 per M.T. According to petitioners this action is calculated to solely benefit the owners of the furnaces who are large imported of shredded scrap. The petitioners have alleged that the action per se is mala fide. 8. The petitioners have further submitted that while presenting the budget, the Hon'ble Finance Minister had assured the business community that no duty will be imposed de hors the budget. The petitioners on the said assurances had entered into binding contract with the sellers to import scrap. Similar assurances were given to the importers of sugar and the exporters of yarn and in pursuance of the said assurances benefit was extended to the importers/exporters of sugar yarn and their letters of credit opened up to a particular specified date were protected. It has been urged that the failure to protect letters of credit opened by. petitioners, vis-a-vis, as done in the case of sugar and yarn, is unreasonable and discriminatory. It is stated by the petitioners that tile effect of the Notifications, dated 27-6-1991, is the net increase in the duty to Rs.4,669 per M.T. in respect of the import of scrap in loose form while in the case of import of shredded scrap, the duty has been reduced to Rs.1,648 and on bundled scrap to Rs.1,608 per M.T. The said discrepancy in the rate of duty will have a crippling effect on the business of the petitioners who are small importers of remeltable iron and steel scrap and cannot afford to purchase bundled or shredded scrap. The very survival of the petitioner is at stake as the landed cost of the petitioners has increased to Rs.9,200. P.M.T. while the price of the remeltable iron and scrap in loose form is approximately Rs.6,200 P.M.T. The landed cost of the shredded and bundled scrap is considerably lower than its selling price of Rs.6,500. The petitioners in order to remain in the business have to sell at a loss of Rs.3,000 per metric ton. According to the petitioners, the schedule of duty payable after 27-6-1991 on remeltable iron and steel scrap in shredded, bundled and loose form is as under:--- 1857 Name of Product Shredded scrap Binded scrap Loose Form Rate of Duty Per Metric Ton. Rs.500 Rs.500 Rs.1500 R. D. Total Duty Rs.1500 Rs.1648 Rs.160,8 Rs.4669 9. Prior to the imposition of regulatory duty, the total duty on import of scrap on loose form was Rs.2,883 with the imposition of regulatory duty, there is an increase of Rs. 1,836 P.M.T. Prior to 27-6-1991, the importers of bundled scrap were also required to pay same amount as payable by importers of scrap in loose form but after 26-7-1991, they have to pay Rs.1,648 and Rs.1,608 per metric ton, only thus enabling the large importers and owners of furnaces to make windfall profits as their landed cost has fallen while that of the petitioners has increased. The grievance of the petitioners is that they have been arbitrarily and unreasonably discriminated against, vis-avis, the importers of shreded and bundled iron and steel scrap through the medium of imposition of regulatory duty and simultaneous exemption to the bundled and shredded scrap and the increase in the ITP value. They have pleaded that tile power to impose regulatory duty and simultaneously to grant reduction to sub-class cannot be done in a manner to cause loss to the petitioners. It is further contended that the power to impose regulatory duty has been exercised to cause irreparable loss to the petitioners for the reasons other than to protect any local industry or trade or balance anything whatsoever. 10. According to petitioners the exercise of powers under section 18(2) and section 19 of the Customs Act, is an exercise of discretion under a legislative framework. The power under section 18(2) is exercisable conditionally after properly ascertaining the correct price level and after proper investigation. The respondent No.1, has no original power of taxation and the delegated authority has been exercised in an oppressive and unjust manner. All the three forms of scrap imported in Pakistan were classified under the same PTC heading 72.04. There was no difference in the duties on all the 'three items of iron and steel scrap. Through the arbitrary exercise irrational classification based on no objective criteria has been made. A discriminatory treatment has been given to the importers of iron and scrap in loose form, vis-a-vis, the importers of iron and scrap in bundled and shredded form. According to the petitioners this distinction and discrimination is unlawful and violative of Article 25 of the Constitution read with Article 2A of the Constitution. The petitioners have assailed the imposition of regulatory duty on import of iron and steel scrap in loose form simultaneously granting exemption of iron and steel in bundled and shredded form and other reduction of custom duty on importers of bundled and shredded scrap as unlawful exercise of discretion and liable to be struck down because of the apparent mala fide as the purpose is to benefit the importers of shredded and bundled scrap and the owners of the furnaces who buy shredded scrap in bulk. It is alleged that it is ultra vires the fundamental rights and Article 18 and 24 of the Constitution and is consequently void. 1858 11. The respondent No.3, in its para-wise comments has taken plea that the decrease on the duty of shredded and bundled scrap and the imposition of regulatory duty on remeltable scrap is in accordance with the provisions of Customs Act, 1969. Regarding the fixation of ITP, in respect of shredded scrap and the loose scrap at U.S. Dollars 140 per metric ton, and U.S. Dollars 160 per M.T. it has been stated that the value has been fixed considering the prices of shredded scrap in the international market. It has been alleged that the value of loose scrap is higher in the international market as compared to shredded scrap. According to respondent No.3, the loose remeltable scrap generally consists of large portion of rerollable and serviceable items/auto parts and for that reason the value of loose scrap has been fixed higher than the shredded scrap. 12. The comments of respondents No.2, has also been placed on record which are contained in the letter, dated 17th May, 1993, addressed to the Collector of Customs (Appraisement), Custom House, Karachi, which contains the rationale for reducing the rate of duty on shredded and bundled scrap and levying regulatory duty on scrap other than bundled and shredded scrap. It is stated in the above letter that the exercise to revise duty structure on iron and steel scrap was undertaken in early 1991 because Pakistan Steel, Re-melters as well as ship-breakers had shown reservations about the duty structure on scrap and the end products thereof and had persistently been agitating for its review. Under the directive of the Finance Minister, a meeting was held on 21-2-1991 with the representatives of the three groups under the Chairmanship of Deputy Chairman, Planning Commission, to understand their problems regarding tax structure on the steel industry. During the meeting, all the groups strongly agitated against lower rate of duty on the import of rerollable scrap and proposed that a uniform high rate of duty be fixed on all scrap other than shredded and bundled scrap, as was the case prior to 1987. Till 1987 all scrap other than shredded and bundled scrap was being assessed as one category at a uniform rate of duty which had not only eliminated the misdeclarition and the classification disputes in the import of scrap but also protected the interest of local industry adequately. To further analyse the price structure of iron and steel products a meeting was again held with the representatives of Pakistan ShipBreakers Association and Pakistan Steel Re-Melters Association on 28-5-1991, under the Chairmanship of Deputy Chairman, Planning Commission. The representatives of Pakistan Steel Re-Melters Association pointed out that the local manufacturers of ingots and billets were facing adverse competition from the importers of re-rollable scrap and the low price of Pakistan Steel billets was affecting marketability of their products. The representatives of Ship-Breakers Association stated that ship-breaking industry had been on the decline since past few years due to high prices of ships meant for breaking. They expressed apprehension that any revision in the duty structure to the detriment of ship breaking industry will result in the total closure of this industry. It was pointed out to ship-breakers that in the previous meeting they had accepted a duty differential of Rs.500 between re-meltable scrap and ships for breaking and the position had not materially altered since then. They reluctantly accepted this position. After listening to the view points of the representatives of Pakistan Ship-Breakers Association and Pakistan Steel 1859 Melters Association, the following recommendations were formulated in the meeting under the Chairmanship of Deputy Chairman, Planning Commission:--- (i) Customs duty on shredded and bundled scrap falling under heading 72.04.4000 may be reduced from Rs.1,500 P.M.T. to Rs.500 P.M.T. (ii) Customs duty on all other items under heading 72.04 may be fixed at Rs.3000 P.M.T. (iii) Customs duty on ships for breaking may be reduced from Rs.1,500 P.M.T. to Rs.1,000 P.M.T. These proposals were later on submitted to the ECC who approved this duty structure and accordingly the same was notified. It was the policy decision of the Government and the C.B.R. was bound to notify the same. 13. The above explanation and rationale was given by the C.B.R. in reply to the letter written by Collector of Customs (Appraisement) with reference to the plea taken on behalf of petitioners in this. Court in C.P. No. 970 of 1991 and C.P. No. 1541 of 1991. The C.B.R. was informed that the advocates for the petitioners have agitated a question of discrimination between; re-meltable scrap other than bundled and shredded scrap and re-meltable scrap in bundled and shredded form stating that both the categories of scrap are usable. for one and same purpose i.e. remelting and as such rationale of discrimination of levying customs duty of lesser rate of shredded and bundled scrap, vis-a-vis, remeltable scrap other than bundled/shredded need to be explained by the Government. The Collector of Customs, had further informed the C.B.R. that the High Court has directed the Collector to explain policy rationale of this decision. The Collector had requested that the rationale for policy decision to charge the two categories of scrap to different rates of customs duty -and the basis for increasing customs duty on one type of scrap and reducing on the other should be explained by the Federal Government. In reply to the above query the explanation was furnished as above. A comparative chart was also placed on record showing duty structure of waste and scrap of iron and steel from the year 1985 to the year 1992, which reads as follows:--- DUTY STRUCTURE OF WASTE AND SCRAP OF IRON OR STEEL 1860 PCT Heading No. Description 1985 Customs Duty Sales Tax 1986 Customs Duty Sales Tax 73.03 (Old) Shredded & 30% 72.04 (H.S) bundled Vol. Ad. Free Rs.418/m. ton 73.03 (Old) Ad. Free Rs.418/m. 12.5% ton Rs.650/m. ton Net effect should be Rs.1070/m. ton Other than 70% sharedded Vol. and bundled 1988 to 1991 Custom Duct Sales tax Rs. 1000/m. ton Free Statuary rate was @ Rs.1500/m. ton Rs.1070/m. ton 12.5 % Free Customs Duty Sales Tax Rs.500/m. ton 12.5% +10% Ad. Vol. Rs.1500/m. ton 12.5 % +10%Ad. Vol. + R. D @ Rs.1500/m. ton 14 Heard Mr. Khalid Anwar, learned counsel for the petitioners and Syed Tariq Ali, learned Standing Counsel for the respondents. 15. Mr. Khalid Anwar learned counsel for the petitioners submitted that all the three kinds of scrap namely loose form, bundled form and shredded form, are used for re-melting and 1861 manufacturing of iron ingots and billets: He has further submitted that the import of bundled and shredded forms require in large investment as well as possession of furnace for manufacturing of end, product and therefore, the big businessmen having large capacity can afford to import the iron scrap in bundled and shredded form. The small investors and businessmen can afford to import the scrap3 in loose form only. It is imported by small traders as well. He has submitted that the parawise comments and the explanation of C.B.R, placed on record, containing so-called rationale for increasing the duty on the import of scrap in loose form and reducing the duty on bundled and shredded form, does not contain any denial of the assertion that all the three kinds of scrap are used or manufacturing the same end product. He has-further contended that a comparative charge placed on record shows that before imposition of regulatory duty on remeltable scrap other than bundled and shredded scrap, the landed costs of loose re-meltable scrap was Rs.7,148 while that of shredded scrap was Rs.7,314. The market sale price of loose re-meltable scrap was between Rs.7,200 to Rs. 7,400, with profit of Rs.52 to Rs.252 per ton. In the case of shredded scrap the market sale price was 7,500 to 7,600 per ton, with profit of Rs.186 to Rs.264 per ton. The market price of the billets manufactured from loose re-meltable scrap as well shredded scrap was from Rs.10,300 to Rs.10,500 per ton. After the imposition of customs duty, the structure of landed cost of loose re-meltable scrap from middle East has increased to Rs.9,075 while from the same sources the landed cost of shredded scrap has decreased to Rs.5,874. The market sale price of loose re-meltable scrap is Rs.6,000 to 6,200 per ton, with the result that such importers "have suffer loss of Rs.3,000 per ton on, sale of the scrap while the importers of shredded scrap earn the profit of Rs.600 per ton. The market sale, price of billets manufactured from both kinds of scrap was between Rs.10,300 to Rs.10,400. He has submitted that the respondents could not deny the end product of all the three kinds of scrap is same. He has further submitted that from 1966 to 1982 there was no difference of duty on the import of loose scrap and shredded scrap. He further submitted that according to the chart prepared by respondents themselves, the rate of customs duty was same on all the three kinds of imported scrap prior to the change in duty structure In support of his contention he has produced relevant extract from the Pakistan Customs Tariff, published the Customs House Karachi IIIrd, IVth and Vth Addition. He has further submitted that in the explanation containing so-called rationale no representation was given to the commercial importers, small traders and the small manufacturers. He has vehemently argued that the entire exercise was mala fide as in the rationale furnished on behalf of the respondents it is not shown that any protection was given to any local industry with the imposition of regulatory duty and change in the structure of customs duty whereby on the import of loose re-meltable Scrap custody duty of Rs.1,500 P.M.T. was retained while on import of shredded and bundled form it was reduced from Rs.1,500 to Rs. 500 P.M.T. It is manifestly against the principles of equality, equal protection for carrying on business, as well as the principles of justice firmly enshrined in Holy `Qur'an' and Sunnah. He' has contended that the entire exercise was mala fide and for the purpose of giving undue favour and advantage to big importers and investors thereby crippling and totally destroying the business carried on by the small traders and importers. According to him the impugned notifications are therefore, violative of Articles 2-A, 4, 18 and 25 of the Constitution and such are liable to be struck down being violative of the fundamental rights granted in the Constitution. Mr. Khalid Anwar has placed reliance on the following judgments:-- 1862 (1) Ittefaq Foundry v. Federation of Pakistan PLD 1990 Lah. 121; (2) Collector of Customs Excise and Sales Tax, Peshawar v. Messrs Flying Kraft Paper Mills (Pvt.) Ltd. 1999 SCMR 709; (3) Messrs Central Insurance Co. v. The Central Board of Revenue, Islamabad 1993 PTD 766; (4) M.A. Rahman v. Federation of Pakistan 1988 SCMR 691 and (5) Iqbal Akhtar v. Ch. Muhammad Mushtaq PLD 1977 Lah. 1318. He has further submitted that the tax imposed by the impugned notifications on the import of scrap in loose form being arbitrary militates against the principles contained in Article 77 of the Constitution as well. 16. On the other hand Mr. Tariq Ali, learned Standing Counsel for the Federation has supported impugned notifications. He has reiterated the version contained in the parawise comments filed on behalf of respondent No.3 and in the letter, dated 17-5-1993, by the C.B.R. addressed to the Collector of Customs (Appraisement). He has contended that the petitioners can, import the scrap in bundled and shredded form instead of insisting for import of scrap in loose form. He has further stated that the relief can be given to the petitioners to the extent of import already made but no relief can be allowed in respect of the subsequent import. 17. Marshalling of facts, in the narrative part of judgment has sufficiently depicted the factual aspects. Now we will take up the judgments cited by Mr. Khalid Anwar in support of his contention that the impugned notifications militate against the principles of equality before the law and equal protection under the law, enshrined in the Constitution. 18. With all due deference to the learned counsel for the petitioners, we are of the opinion that the ratio in the cases of Iqbal Akhtar v. Ch. Mushtaq PLD 1977 Lah. 1318, M.A. Rehman v. 1863 Federation of Pakistan 1988 SCMR 691 and Messrs Central Insurance Co. v. The Central Board of Revenue Islamabad 1993 PTD 766, are not relevant to the issue under consideration. 19. In the case of Ittefaq Foundry v. Federation of Pakistan (supra), the relevant facts were that the petitioner was producer of semi-finished products for steel industry in Pakistan. It was primarily producing billets. It was contended that other producers were producing similar products with the nomenclature of ingot. According to petitioners, the billets and ingots were used for entirely identical purposes and products, and .the only difference was of implying different casting system and process for giving the shape. It was further stated that both ingots and billets were taxed or exempted from tax in absolutely identical, terms year after year and the petitioner on the assumption that the tax burden on goods produced by them would be the same, produced large quantities of goods. However, additional burden of Excise Duty and Sales Tax was imposed on the billets by the notification impugned in the cited petition which rendered the sale of billets produced by the petitioner un-saleable. It was pleaded that the change in the policy was calculated to cripple the petitioner who was engaged in producing the billets whose use was exactly the same as that of ingots. 20. The case of the petitioner in the cited case was that traditionally duties and taxes were akin in order to maintain parity of cost as both were meant to roll similar finished products and hence the cost of production of both the items had to be equivalent. It was pleaded that the levy of additional tax on billets places unreasonable burden on the producers of Billets specially the petitioner who is the major producer of billet in the private sector and as such this action was violative of Article 18 of the Constitution. It was urged that the Government had not disclosed any basis or reason for giving different treatment to the two products which were being taxed in the earlier years at the same rate. It was asserted that the delegated legislative authority was abused and was exercised in mala fide manner, which was directed to put the petitioner out of market. In the written statement filed by Assistant Collector, Central Excise, a plea was taken that the ingots and billets were two distinct products and were separately classified under Pakistan Customs Tariff. It was further asserted that the cost of production of billets was muchless than the cost of production of ingots. It was argued on behalf of Government that though billets' and ingots were earlier subjected to identical rate of excise duty and sales tax and were being allowed exemption from tax duty on identical terms, but from that it cannot be inferred and that would not make both the products classifiable under one item. The plea of mala fide refuted contending that the Courts cannot go into, or question the right of the Government to exempt one or the other item and nobody can claim, as a matter of right, exemption from tax on any basis or that any other item has been exempted. It was also urged that the grant of exemption from tax is the matter of grace and exemption is granted by the Government taking into consideration various factors, which are not subject to inquiry, investigation or jurisdiction of the High Court. 1864 22. Khalil-ur-Rehman Khan, J, (as his lordship then was) observed that the petitioner felt aggrieved as in the matter of allowing exemption from payment of Excise Duty and Sales Tax, the Federal Government in exercise of delegated power has given to its product, billet, a treatment different from that extended to the producers of ingot as eventually the producers of billet have been made to pay excise duty and sales tax at higher rates. 23. After a brief survey of the treatment given to the two items in earlier years it was observed that, the different treatment came to be accorded since 1989 by the Federal Government, in exercise of the delegated power vesting under section 12-A of the Central Excises and Salt Act, 1944 and section 7 of the Sales Tax Act, 1951. It was further observed that the plea that scientifically and technically and as per Pakistan Customs Tariff which follows Brussels Nomenclature and Harmonized Commodity Description and Coding System, both these products have been classified under separate heading and as separate items, is not relevant. 24. The contention that the delegated legislative power was abused and the levy of Excise Duty and Sales Tax on two products at different rates was discriminatory, unreasonable, irrational and prejudicial to the public interest was examined in the light of the provisions contained in Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan and the principle that the exercise of delegated legislative power like any other administrative or executive power can be subjected to judicial review on the ground of Wednesbury reasonableness. It was observed that the plea that discretion vesting in the Government, whether in the matter of tax or in the executive field, is to be exercised in a reasonable way was sought to be supported by citing the following judgments:-- (i) Associated Provincial Picture Houses .Limited v. Wednesbury Corporation (1947 AER 680); and (ii) Congress v. Home Office (1976) 1 AER 697). 25. After referring the ratio of above judgments and the provisions contained in Articles 4, 18 and 25 of the Constitution of Islamic Republic of Pakistan, as well as various judgments from the Supreme Court of India, the following passage from the judgment in the case of Ajay Hasia etc. v. Khalid Mujib Sehravardi and others (AIR 1981 SC 487) was cited: 1865 "The doctrine of classification which is evolved by Courts is not paraphrase of Article 14 nor is it the objective and end of that Article. It is merely a judicial formula for determining whether the legislative or executive action in question is arbitrary and therefore constituting denial of equality. If the classification is not reasonable and does not satisfy the two conditions referred to above, the .impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached. Wherever therefore, there is arbitrariness in State action whether it be of the Legislature or of the executive or of an authority under Article 12, Article 14 immediately springs into action and strikes down such State action. In fact,- the concept of reasonableness and non arbitrariness pervades the entire Constitutional Scheme and is a golden thread, which runs through the whole of the fabric of the Constitution: " 26. The learned Single Judge further placed reliance on the following passage from the judgment of Supreme Court of India in the case of Indian Express Newspapers (Bombay) Private Limited v. Union of India and others (AIR 1986 SC 515):--- "75. In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with 'the statute or that it offend Article 14 of the Constitution. 76. That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held in Tulsipur Sugar Company Limited v. Notified Area Committee, Tulsipur (1980) 2 SCR 1111; (AIR 1980 SC 882); Rameshchandra (1981) 2 SCR 886; (AIR 1981 SC 1127) and in Bates v. Lord Hailsham of St. Marylebone (1972) 1 WLR 1373. A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular 'discretionary .powers. In the latter case the question may be considered on all ground on which administrative action may be questioned, such as, non-application of mind, taking irrelevant matters, into consideration; failure to take relevant matters into consideration, etc., etc. On the facts and circumstances of a case, a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or, say; the Constitution. This can only be done on the ground that it does not conform to the statutory or Constitutional requirements or that it offends Article 14 or Article 19(1)(a) of the Constitution. It cannot, no doubt be done merely on the 1866 ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant." 27. While dealing with the plea taken by the counsel for Federation, that the exemption from tax is the matter of grace and is granted by the Government taking into consideration, various factors which are not subject to inquiry, investigation or jurisdiction of the High Court, the learned Single Judge held as follows:--- "There is no cavil to the proposition that exemption exists only by virtue of Constitutional or statutory provisions and that the right to immunity is not inherent in the persons or property exempted and it cannot be claimed as a matter of right but in the Constitutional set-up, where fundamental rights are guaranteed, to be treated in accordance with law is recognized as inalienable right of a citizen. I do not accept the proposition that grant of exemption from tax is a matter of grace as the statutory functionaries while framing rules or notifications with a view to lessening the burden of the tax through grant of exemption from tax are not showing grace as a king, dictator or an absolute ruler would do in his pleasure but are discharging the functions assigned to them not in their pleasure but for achieving the objectives of the law and in public interest." 28. While dealing with the jurisdiction of the Court reliance was placed on the observation of Supreme Court of India in the case of Indian Express Newspapers (supra) as .follows:-- "We do not therefore, find much substance in the contention that the Courts cannot at all exercise judicial control over the impugned notifications. In cases where the power vested in the Government is a power which has got to be exercised in the pubic interest as it happens to be here, the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. The fact that a notification issued under section 25(1) of the Customs Act; 1962 is required to be laid before Parliament under section 159 thereof does not make any substantial difference as regards the jurisdiction of the Court to pronounce omits validity." 29. Further reliance was placed on the observation of Supreme Court of India in. the case of Ajay Hasia etc. v. Khalid Sehravardi and others AIR 1981 SC 487 which reads as under:-- 1867 "Article 14 must not be confused with the doctrine of classification. Unfortunately, in the early stages of the evolution of our Constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article forbids discrimination and there would be no discrimination where the classification making the differential fulfils two conditions, namely (i) that the classification is founded on an intelligible differentia which distinguishes persons or thing that are grouped together from others left out of the group; and (ii) that the differentia has a rational relation to the object sought to be achieved by the impugned legislative or executive action." 30. The learned Single Judge thereafter observed that the question is, "whether power to grant exemption has been exercised reasonably and with a view to achieve the objectives of the law itself, and, whether the exercise of power is beyond the reach or power of judicial review vesting in this Court and if this power vests, what is the scope and vesting of power of judicial review". 31. Reference was made in this behalf to the statement of law contained at the page 413 of Corpus Juris Secudum (1954 Edition), which states that:- "Exemptions are not based on the favouring of particular person or corporations at the expense of taxpayers generally, or granted on any idea of lessening the burdens of individual property owners, but are based on the accomplishment of public purposes, and are granted on the theory that they will benefit the public generally or as a reward or compensation for services rendered in the performance of some function deemed socially desirable. It has been stated that exemptions are favoured on the theory that the concession is due to quid pro quo for the performance of service essentially public by which the State is relieved pro quo from performing, and thus, where the exemption from taxation serves the public, and not a private interest, it cannot be regarded as a gift or donation of the public credit to, or in aid of, the individual, association, or corporation in whose favour the exemption is declared, but without that concurring prerequisite, an exemption becomes essentially a gift of public funds and indefensible both under public policy of equal taxation and under the Constitutional safeguard of illegal taxation. " 32. Further reference was made to page 417, where it is stated that, "the Legislature cannot delegate to the executive or administrative agencies or officers the power to exempt from taxation or to exercise uncontrolled discretion with respect to exemption, and as far as the power may be delegated the delegation must be regulated by some definition of policy and purpose". 1868 33. It was further held that the test of reasonableness has been consistently applied by the Courts in England, United States and India. The following observation made by Lord Greene in the case of Associated Provincial Picture House Limited v. Wednesbury Corporation (1948) 1 KB 223) was referred:-- "It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word `unreasonable' in a rather comprehensive sense. It has frequently been used and is' frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must so to speak, direct himself properly in law. He must call his own .attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting `unreasonably'. Similarly there may be something so absurd that no sensible person could ever dream that it lays within the powers of the authority. Warrington L.J. in Short v. Poole Corporation (1926) 12 CH 66 gave the example of the red-haired teacher dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters It is so unreasonable that it might almost be described as being done in bad faith; and in fact all these things run into one another." 34. After referring the above judgments it was observed that the Supreme Court of India repelled the contention that the notifications granting exemption were beyond the reach of the administrative law, even though all the grounds that may be urged against an administrative order may not be available against them. The learned Single Judge of the Lahore High Court agreed with the observations of the Supreme Court of India. Thereafter, it was observed that the provisions contained in Articles 2A, 3, 4 and 25 of the Constitution of Islamic Republic of Pakistan were no way less to meaning and import than the due process of law' clause contained in the American Constitution. 35. It was further held that the judgments delivered by the superior Courts in Pakistan under 1956 Constitution or during the period when the fundamental rights were not in force were to be approached and understood keeping in view the afore-noted Articles of the present Constitution. The observations made by Cornelius, J, (as his lordship then was) in the case of Messrs East and West Steamship Company v. Pakistan (PLD 1958 SC 41), were also relied upon which read as under:- "It has already been remarked, the fundamental right of freedom to conduct any lawful trade has been given by the citizens of Pakistan to themselves and may be regarded as an essential 1869 condition of their relationship among themselves, and with the State. The State has been directed inter alia by Article 29 of the Constitution to provide for all citizens within the available resources of the country facilities for work and adequate livelihood, trade is a form of livelihood which has received particular notice and protection in the Constitution under Article 12 (Article 18 of 1973 Constitution) and it is, therefore, only reasonable that the power of the State to regulate a trade by means of a licensing system should be construed in the light of the duty imposed upon the State by Article 29 (Article 38 of 1973 Constitution) to provide for all citizens facilities for adequate livelihood., It is also a general duty imposed upon. the State that it shall endeavour to secure the well-being of the people and as been seen above under conditions of free enterprise the well-being of the people requires that the conduct of trade carried on by individuals should no be interfered with so long as it is being lawfully carried on If the proviso to Article 12 (Article 18 of Constitution of 1973) be held to mean what the learned AttorneyGeneral contends for, a result might follow which may be expressed somewhat in the following manner. The people of Pakistan first declare that those of them who wish to engage in trade, or are engaged in trade shall be free to enter or continue in their trade and to conduct that trade according to their discretion and choice, so long as it is lawful, In the next breath, the people of Pakistan proceed to, say that the State, namely the Executive, to' which they entrust the power vested in themselves, to be exercised for the advancement and well-being of the nation, may, in the guise of a licensing system, interfere in the minutest detail with every process and practice which any citizen-trader. The freedom which the citizens had guaranteed to themselves is thus placed entirely at the disposal of the Executive to respect or destroy as it pleases ....Manifestly, this is an interpretation which cannot be sustained. The people of Pakistan cannot be thought to have declared a Fundamental Right only to provide immediately after for its destruction by the Executive authority at its unrestrained discretion. Therefore, it is necessary in interpreting Article 12 that the substantial Fundamental Right of freedom of lawful trade should be preserved in the `posh-and-pull' of interpretation as against the powers vested in the Executive. As has already been pointed out above, the Executive was enjoined in clear terms to act for the well-being of the people and so as to provide them with facilities to earn adequate, livelihood for themselves e.g. by conducting lawful trade according to their discretion and choice, as befits an economy based on the principle of free enterprise ....It follows, therefore, that the power of regulating by a licensing system is not to be regarded as co-extensive with the power of control secured to a tradesman in respect of the implements and equipment of his trade and every operation that is required by the procedure of his trade. In principle also the words of a proviso are to be construed strictly and confined to the special case which its words enact; it could be wrong to construe those wounds as being co-expensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview. Therefore, it seems to me, that it is incumbent upon a Court to interpret the words of the first proviso, to Article 12 in a limited sense, in contrast with the plenary sense in which the words of the main portion of the Article are to be understood. In my opinion, that limited sense is adequately expressed, in the extract which I have cited above from Halsbury's Laws of England in relation to the Statutory Regulation of Professions and Trades." 36. After referring to several judgments cited at the bar, the learned Single Judge of the Lahore High Court observed that one of the main pleas was that different treatment to the products 1870 which. are physically same and are similar or are put to the same use, would be violative of the equality clause and that where objects, persons or transactions essentially similar, are treated by the imposition of different rate of tax, discrimination may result on account of refusal to make a rational classification. Thereafter it was held that both ingots and billets were being akin for the purposes of charging sales tax and excise duty till June/July, 1989: It was further held that:- "It cannot be disputed that taxability is to be determined by the Legislature under Article 77 of the Constitution and such power to remove the unfairness can be delegated as would entail enquiry into the assessment of changing factors which necessitated reduction of burden at the proper time and to the proper extent. Moreover, the grant of exemption with the view to remove an unfair burden in exercise of delegated legislative power in a Constitutional set-up has to be subjected to the rule of reasonableness and free from arbitrariness in the instant case, it was not shown that since June/July, 1989 what changes took place in the market and what relevant factors were considered for according different treatment to the two products which hithertobefore were being taxed at par." 37. Dealing with the power of State for giving different treatment to different persons on the basis of reasonable classification it was held that, "for the purpose of valid classification, what is required is not some imaginary or unsubstantial difference but a reasonable and substantial distinction having regard to the purpose of law". 38. Ultimately it was held that the different treatment given to billet, the product of the petitioner in the cited case was arbitrary and unreasonable and as such the additional burden placed was violative of equal protection of laws guaranteed by Article 4 read with Article 25 of the Constitution of Islamic Republic of Pakistan and that the charging of excise duty and sales tax on the basis of notification assailed in the cited petition was without lawful authority. 39. In the case of Collector of Customs, Excise and Sales Tax, Peshawar v. Messrs Flying Craft Paper Mills (Pvt.) Ltd., 1999 SCMR 709, the principles laid, down in the case of Elahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC, 582, were reiterated as follows:-- "Additionally, while there is a power in the Legislature and other taxing authorities to classify persons or properties into categories and to subject them to-different rates of taxes, there is none to target incidence of taxation in such a way that similarly placed persons are dealt with not only dissimilarly but discriminatory. " 1871 40. The subject of equal protection of law and power of classification has been dilated upon in great detail by a Full Bench of the Dacca High Court in the case of Jibendra Kishore v. The Province of East Pakistan PLD 1957 Dacca 1. In this judgment reliance has been placed on a judgment from Supreme Court of India in the case of The State of Bombay and another v. F.N. Balsara AIR 1951 SC 318. It has been held by the Supreme Court of India as under:--- "(7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis. 41. It was further observed that the equal protection e has been borrowed from the American Constitution. A passage was quoted from the treatise Constitutional Law of the United States" (1936 Edition), passage 579 by Hugh Evander Willis as follows:- "The guaranty of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects' to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed, `The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the States the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required: Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." 42. Reference was made to a passage from Nichol's Book on Eminent Domain (3rd Edition, Volume 1, page 403), as follows:--- "Any classification which discriminates between persons and corporations which is based on a real difference, from the point of view of such .classification, is not violative of the equal 1872 protection clause, provided the distinction drawn is not arbitrary or unreasonable, and provided further that all persons within the particular category are accorded equal rights and privileges." 43. Ratio of the judgment in the case of State of West Bengal v. Anwar Ali 1952 SCR 284, was also referred which reads as follows:-- "In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act." 44. A Division Bench of this Court in the case of Pakistan Petroleum Workers' Union v. Ministry of Interior, 1991 CLC 13 (Karachi) considered the scope and connotation of the expression "equality before law" and "equal protection of law" under Article 25 of the Constitution of Islamic Republic of Pakistan, Saleem Akhtar, J. (as his lordship then was) observed that the concept of equality before law and principle of equal protection in law were for the first time given and firmly practised by the Holy Prophet (p.b.u.h)". He further held that: "Therefore, it can be traced as far back as 1,400 years, i.e. much before the Magna Carta, 14th Amendment of American Constitution, Declaration of Human Rights and the Theory or Rule of Law as enunciated by the Western Jurists". 45. It was further held as under:--- "The Constitution guarantees equality before law and equal protection of law to every citizen. Any arbitrary discrimination or unreasonable classification of classes are completely alien to the notions of equality before law and equal protection of law. The Constitution is not meant to serve any individual, it serves the nation and the country. Constitution envisages development of institutions and not individuals or class of individuals. It gives Government of Law and not individual. It is in this perspective that the provisions of the Constitution have to be interpreted to make it a living document which may accommodate the past, satisfy the present and serve the future. The equality should not be in terms of mathematical calculation and exaction. The equality must be amongst the equals. The equality has to be between persons who are placed in the same set of 1873 circumstances. Article 25 does not envisage absolute equality of treatment to all persons in disregard of the attending circumstances. Article 25 forbids class legislation but not reasonable classification. However such classification should have some just and reasonable nexus with the object of the Act and cannot be arcade without any basis. Where any enactment provides different treatment, based reasonable classification having proper relation with the object of the Act and unfettered discretion has not been conferred on the administering agency it is not hit by Article 25. Article 25 incorporates the concept of the rule of law. It prohibits, curtails and restricts enforcement of law or exercise of power under law which confers arbitrary powers with unfettered discretion. The law or the discretion conferred by it should be such that a citizen should know in the normal course and circumstances what the decision possibly could be. Every citizen has a right to know where he stands. This is another way to afford equal protection of law to every citizen." 46. A Division Bench of the Lahore High Court held in the case of Government of Pakistan v. Zafar Iqbal 1992 CLC 219, that, the equal protection theory prevents discriminate treatment of individual or a group of individuals at the expense of other individuals or classes of the people similarly situated. Evenhanded, fair treatment to every citizen is ordained by the Constitution. 47. Applying the above principles to the facts of the eases under consideration, we find that the scrap imported in shredded form, bundled form and loose form are by and large used for the same purpose. The only difference is that the scrap in the shredded and bundled form is imported by the big investors and those having the facility of Furnace. On the other hand, the scrap in loose form is imported by the small investors and traders and such persons who do not have the facility of Furnace at their own disposal. However, the end-product produced from the scrap in shredded form, bundle form and loose form is the same. Prior to the impugned Notification, dated 27-6-1991 there was no difference in the duty structure on the import of scrap in any of the three forms referred to above. Mere difference in PTC heading is inconsequential. The comments filed by the respondents does not disclose any basis for different classification of shredded and bundled scrap in one category and loose form in another category. Mr. Khalid Anwar has rightly argued with vehemence that in the absence of sufficient material justifying the change in duty structure, treatment meted out to the petitioners becomes arbitrary and mala fide with the result that the entire exercise stands vitiated being violative of equal protection of laws guaranteed by Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan. We further find substance in the contention of Mr. Khalid Anwar, that regulatory duty has been imposed on the import of scrap in loose form without any reason and there is not a single word to suggest that it has been imposed with the intention of protecting any local industry. 1874 48. After a very careful consideration of the entire facts and the principles governing the equal protection of law and against the discriminatory treatment, enshrined in the Constitution of Islamic Republic of Pakistan, we are, of the considered opinion that, the change in the duty structure introduced through the two impugned notifications, dated 27-6-1991 under sections 39 and 18(2) of the Customs Act, 1969, whereby the custom duty on the import of shredded and bundled waste and scrap has been reduced to Rs.500 P.MT and the custom duty of 1500 PMT has been left intact on import of scrap in loose form and regulatory duty of Rs.1500 PMT has been imposed on the import of scrap in loose A form only, excluding import of scrap in shredded and bundles form suffers from arbitrariness. The Federal Government, has failed to specify any reasonable basis for separate classification of the import of scrap in bundled and shredded form in one category and the import of scrap in loose form in the other category. The effect of the impugned notification is that the small investors and trader, in porting scrap in loose form shall be totally ruined under the crushing burden of the duties so imposed and the big importers and investors having facility of furnace at their disposal all earn huge profit which cats be termed as a windfall profit. The action is totally discriminating against the small investors and importers and provides undue advantage to big capitalists and investors. It creates such an imbalance which has no justification at all, except that for the reasons best known to the competent authorities undue advantage is being dolled out to the big investors/capitalists at the cost of small investors, importers and traders. It is against the principle of free competition guaranteed under Article 18 of the Constitution, and the equal protection of law enshrined in Article 4 of the Constitution and militates against the principles of equality before law and entitlement for equal protection in law firmly ingrained in Article 25 of the Constitution of Islamic Republic of Pakistan. On the face of it", the impugned action is arbitrary, devoid of any reason, made of reasonableness and such arbitrary act cannot be termed but mala fide and colourable. An act which is established to be mala fide and colourable cannot be regarded as an action in accordance with the law and the rights guaranteed under the Constitution. If, an act is not reasonable and is without any basis and justification, it is always for extraneous and irrelevant consideration and is bound to be struck down being manifestly against the fundamental rights guaranteed in the Constitution. Such an act of discrimination cannot be countenanced in an Islamic polity. The Islam lays great emphasis on the equality before the law, equal protection under the law, equal treatment in law, equal opportunities, free competition in the regulation of trade, commerce and industries. No discrimination of any kind is sustainable in a country, the Constitution thereof provides that the State shall exercise its power and authority in accordance with the principles of freedom, quality, social justice and guarantees the fundamental rights and opportunity before law and economic justice. 49. We are, constrained to observe that, in spite of guarantees provided in the Constitution, the details whereof, we need not to dilate here, there is a constant tendency on the part of authorities concerned to violate the fundamental rights and the basic and fundamental principles under which the State should be governed and the conduct of the Government is to be regulated qua the citizens. Most unfortunate aspect is, that, when one set of people are out of power, they are grilled, oppressed and discriminated against by the men-in-authority. At that time they rush to the Courts for redress of their grievances, remembering, and reminding all the principles of equality before law, justice, equity and the fundamental rights guaranteed in the Constitution and 1875 they get relief from the Courts. However, when the same set of people are fortunate enough to occupy the driving seat and are saddled with the responsibility of running the State, they forget all those lofty principles of law, justice and equity and indulge in more worst kind of arbitrariness, discrimination and illegalities, for petty benefits, which they themselves had faced at the hands of other persons calling the shots. 50. Mr. Khalid Anwar, has mainly placed reliance on the judgment in the case of Ittefaq Foundry v. Federation of Pakistan, PLD 1990 Lahore 121. In the cited case it was contended that the petitioner was producer of billets and that there were other producers, producing ingots, the endproduct whereof was same. In order to economically ruin the petitioner in the cited case, duty structure was changed in the year 1989 without reasonable justification and the change in the duty structure was against the rights guaranteed in Articles 4, 18 and 25 of the Constitution. The contention of the petitioner was accepted and the relief was allowed. However, with the change in fortunes, the persons were feeling the pinch of oppression in the case of Ittefaq Foundry v. Federation of Pakistan, became the rulers and thereafter, they very easily and conveniently managed to forge the treatment given to them and got the duty structure changed through notification assailed in these petitions, thereby deriving huge undue benefit at the cost of total destruction of the small importers and traders of the scrap in loose form. 51. Consequent to our finding, that, the Notifications, dated 27-6-1991 changing the duty structure under sections 18(2) and 19 of the Customs Act, 1969 are arbitrary, mala fide, unlawful and violative of the fundamental rights enshrined in Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan read with Articles 4 and 2A, the petitions are allowed. We, declare that imposition of regulatory duty on remeltable iron and scrap in loose form and granting of exemption to the importers of bundled and shredded scrap through Notifications No. S.R.O. 584(I)/91 and S.R.O. 585(I)/91, dated 27-6-1991, in exercise of powers under section 18(2) and section 19 of the Customs Act, are violative of the fundamental rights guaranteed in the Constitution: The said notifications are hereby struck down being unconstitutional and direct the respondent No. 3, to stop the charging of the regulatory duty through impugned notification and to refund the regulatory duty and the customs duty if any, charged in excess of the custom duty prevailing before the issuance of the notifications which have been struck down by us. All the petitions are allowed as above. S.A.K./P-46/K Petitions allowed. 1876 1999 Y L R 2226 [Karachi] Before Rasheed A. Razvi, J NAN FUNG TEXTILES LTD. ---Petitioner versus NICHIMEN & CO. (PAKISTAN) LTD. ---Respondent Judicial Miscellaneous No.84 of decided on 24th December, 1998. (a) Arbitration (Protocol and Convention) Act (VI of 1937)--- ----Ss. 5 & 7---Foreign award—Enforcement of---Burden was on party contesting enforcement of foreign award to prove that other grounds existed to resist the same--Ground of misconduct committed by arbitrator could be termed as "any ground" to resist enforcement of foreign award---No law, either in Pakistan or in England, permitted arbitrator to commit misconduct, it could, thus, be termed to be a good ground to resist enforcement of foreign award under subsection (3) of S. 7, Arbitration (Protocol and Convention) Act, 1937---Court was competent to refuse enforcement of award on "any ground " other than mentioned in clauses of subsection (1) (2) of S. 7 of Arbitration (Protocol and Convention) Act, 1937---Term "any ground" would include such grounds which were contrary/violative of Islamic Injunctions, Objectives Resolution, Fundamental Rights and other laws of Pakistan. 1877 Messrs Alhaj Muhammad Keramat Ali & Co. Ltd. v. Messrs Amin Jute Mills Ltd., Chittagong PLD 1961 Dacca 452; Haji Tayab and 2 others v. Eastern Textile Mills Ltd., Chittagong and 12 others PLD 1970 Kar. 357; Messrs European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. PLD 1982 SC 407; Messrs European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. 1984 SCMR 553; Leiserach v. Schalit (1934) 2 KB 353; S.M. Fazail & Company v. Overseas Cotton Company PLD 1959 Kar. 320; 1984 SCMR 553; Messrs European Grain & Shipping Ltd. v. Messrs Polychem Company Ltd. PLD 1990 Kar. 254; Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Williams v. Willis 83 LJ KB 1296; Dalmia Cement Ltd. v. National Bank of Pakistan (1974) 3 All ER 189; Messrs Barlas Bros. (Karachi) & Co. v. Messrs Yangtze (London) Ltd. PLD 1959 Kar. 423; Messrs Yangtze (London) Ltd. v. Messrs Barlas Brothers (Karachi) PLD 1961 SC 573; Nan Fung Textiles Ltd., Hongkong v: H. Pir Muhammad Shamsuddin PLD 1979 Kar. 762; Nan Fung Textiles Ltd. v. Sadiq Traders Ltd. PLD 1982 Kar. 619; Ralli Brothers & Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC 83; Petrocon (Pvt.) Ltd. v. Hyderabad Development Authority, Hyderabad 1990 MLD 1675; Hassanali & Co. Cotton (Private) Limited v. Poly Coton S.A., 2-Rue, Andrien Vallin, 1201 Geneva, Switzerland and others PLD 1996 Kar. 416; Foreign Awards and Maintenance Orders Enforcement (Amendment) (1962) PLD 1962 Central Statutes 607/31; PLD 1979 Kar. 762; Sadiq Traders PLD 1982 Kar. 619; Dalmia Cement Ltd. (1974) 3 All ER 189; Hitachi Ltd. and another v. Rupali Polyester and others 1998 SCMR 1618; Oil & Natural Gas Commission v. Western Company of North America AIR 1987 SC 674; Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others PLD 1994 Lah. 525; Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 (W.P.) Kar. 567; Succession Certificate of Mrs. Parveen Akhtar PLD 1993 Kar. 280; Lt.-Col. (Retd.) P.G. Braganza v. The Border Area Allotment Committee and another 1984 CLC 1479; Ismail and another v. Mst. Razia Begum and 3 others 1981 SCMR 68; Wali Muhammad Khan v. Ishak Ali Khan and others AIR 1931 All. 507; Haji Muhammad Rafiq v. Shahenshah Jehan Begum PLD 1987 Kar. 180; Messrs Pakland Scientific Production v. Messrs Pioneer Insurance Company Limited and another PLD 1991 Kar. 414; Sirbaland v. Allah Loke and others 1996 SCMR 575; Marines Ltd: v. Aegus Shipping Co. Ltd. and 4 others 1987 CLC 1299; Rally Brothers and Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. 1987 CLC 83; Bourgeois v. Weddell & Co. (1924) 1 KB 539; Cerrito v. North Eastern Timber Importers Ltd. (1952) 1 Lloyd's Rep. 330; French Government v. Tsurushima Maru SS (Owners) (1921) 37 TLR 961; CA Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. (1960) 3 All ER 617; (1960) 1 WLR 1243; Re Fuerst Bros. & Co. Ltd. and Stephenson (1951) 1 Lloyd's Rep. 429; Rahcassi Shipping Co. SA. v. Blue Star Line Ltd. (1969) 1 QB 173; (1967) 3 All ER 301; Kawasaki Kisen Kaisha Ltd. v. Government of Ceylon (1962) 1 Lloyd's Rep. 424; Ives v. Medcalfe (1737) 1 Atk 63; Fredrick E. Rose (Commodities) Ltd. London v. Munsoor Ali Tanning Co., Karachi NLR 1981 UC 175 at 190-191 and French Government v. Teuru Shima Maru (1971) 37 TLR 961 ref. (b) Arbitration (Protocol and Convention) Act (VI of 1937)--- 1878 ----Ss. S & 7---Enforcement of foreign award---Misconduct of arbitrator---Proof---In order to enable party to prove misconduct on part of its own arbitrator, High Court was competent to order examination of said arbitrator on commission which would not mean that in all cases where allegations of misconduct were raised, Court should invariably order examination of arbitrator--Such exercise should be ordered in very rare and exceptional cases or where party raising such allegation, prima facie, established before Court a case of misconduct of his arbitrator. (c) Administration of justice--- ----Principle---Principal object behind all legal formalities was to safeguard paramount interest of justice and mere technicalities unless presenting insurmountable hurdle, should not be allowed to defeat ends of justice---Procedure or rules were meant to foster cause of justice and party should not be burdened with penalty except when positive evidence of negligence beyond explanation was available. Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Jameel Ahmed v. Late Saifuddin 1997 SCMR 260; Imtiaz Ahmed v. Ghulam Ali and others PLD 1963 SC 382; Mst. Begum and others v. Mst. Begum Kaniz Fatima Hayat and others 1989 SCMR 883 and Jane Margaret William v. Abdul Hameed Mian 1994 SCMR 1555 ref. (d) Stamp Act (II of 1899)--- ----Preamble---Purpose of Stamp Act, 1899--Purpose of Stamp Act was not to invalidate any instrument, but to protect public revenue. Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique PLD 1978 SC 279 ref. Bashir A. Shaikh for Petitioner. 1879 Hamza I. Ali for Respondent. Dates of hearing: 14th, 27th, 28th and 29th October, 1998. JUDGMENT This is a petition under section 5 of the Arbitration (Protocol and Convention) Act, 1937 (hereinafter referred to as the Act 1937") for enforcement of a foreign award, dated 1st May, 1974. In the first place. I would like to observe that this proceeding should have been registered as a suit in s mw of subsection (2) of the Act, 1937 as Rule 294 of the Sindh Chief Court Rules (O.S.) is not in conformity with sections) 5 and 6 of the Act, 1937. (For further reference see order, dated 31-8-1998, passed in A. Meridith Jones Ltd. v. Usman Textiles Ltd. J.M. No.22 of 1998). 2. The undisputed facts of this case are that as a result of some five contracts executed between the parties, during the period of 30th October, 1972 to 8th November, 1972, the respondents sold to the petitioner some 6000 (six thousand) bales of cotton All these contracts contained a clause for arbitration between the parties in case of any `dispute which was to be conducted in accordance with the rules and regulations of the Liverpool Cotton Association Ltd. Liverpool, United Kingdom. It is alleged in the petition that as a result of certain differences between the parties, the matter was referred by the petitioner to the Liverpool Cotton Association. (for brevity sake hereinafter referred to as L.C.A.). On 1st May, 1974, an award was pronounced whereby the respondent was directed to pay, to the petitioner, a sum of U.S. Dollars 517,270.00 with interest at the rate of 10% per annum from the date of award till realization. The respondent was further directed to pay a sum of U.K. £ 500 towards the fees and expenses of the arbitration proceedings. It is claimed in the petition that the respondent filed an appeal against the Award before the Technical Committee of L.C.A., which was dismissed and the award was upheld by a judgment, dated 2nd May, 1975, whereby the respondent was required to pay, to the petitioner, a sum of U.S. $ 642,943.36 with interest at the rate of 9% per annum on the amount of award from 16th May, 1975 until the date of payment. The respondent was further required to pay a further sum of U.K. £ 750.00 being the total cost of the Award. It is averred in the petition that since the respondent failed to comply with the direction of the award, as contained therein, petitioner has filed this petition seeking enforcement of the abovementioned foreign award with the following relief: (a) Order that the said award be filed in this Honourable Court; 1880 (b) To pronounce judgment in terms of the said award; (c) Award the cost of this application to the petitioner; and (d) Order any other/further relief as this Honourable Court may deem fit to grant. 3. Before proceeding further, I would like to deal with one of the interesting features of this case. On 13th February, 1978, the respondent filed an application under Order XXVI, Rules 4 and 5 of the Code of Civil Procedure, 1908, (hereinafter referred to as "C.P.C.") which was numbered as C.M.A. No.614 of 1978 with the prayer that one Mr. C.P. Bramble who was arbitrator from the respondent side during the original arbitration proceedings and one more person namely the Secretary of L.C.A., be examined on commission or on interrogatories. This application came up for hearing on the 20th August, 1978, before this Court which was granted by Naeemuddin, J. (as his lordship then was) in the following manner:-- "Some of the objections taken to the award are: That Mr. C.P. Bramble, was never appointed as arbitrator by the respondent. That no notice of arbitration proceedings was ever given to the respondent who had no opportunity to present their case before the arbitrator. Mr. C.P. Bramble was one of the arbitrators who gave the impugned award. In view of the above, I am of the view that examination of Mr. C.P. Bramble is necessary. It is not denied that he is residing in England. Therefore, both the conditions laid down in the Rule 5 of Order XXVI, C.P.C. are fulfilled in this case. 1881 The examination of witness No-2, is sought on the ground that he possesses the record of the arbitration proceedings which can prove whether any notice was served or not on the respondent. Therefore, the examination of this witness on commission is also necessary. I, accordingly grant the application. The respondent to submit interrogatories within one month. The petitioner shall also file cross-interrogatories, if any, within one month from the respondent. Commission to issue thereafter returnable within three months. Costs of the commission and Commissioner's fee will be borne by the respondent initially .... . 4. The above-noted order gives rise to the question, what is the scope of the present proceedings which has been filed under section 5 of the Act 1937, seeking pronouncement of judgment in terms of the Award and thereafter framing of decree in accordance with the award. Both the parties were directed to make their respective submissions on this aspect of the case. It was argued by Mr. Hamza I. Ali that the order for examination of witnesses on commission was passed some 20 years ago in the instant proceedings which was acted upon and which had also attained finality as none of the parties filed any appeal; therefore, as suggested by him, it is, a past and closed transaction and it cannot be re-opened Secondly, there is no bar or prohibition in the Act, 1937, where-by a Court is prohibited from examining any party in a proceeding arising out of the Act 1937. He has also referred to the cases Messrs Alhaj Muhammad Keramat Ali & Co. Ltd. v Messrs Amin Jute Mills Ltd. Chittagong (PLD 1961 Dacca 452), Haji Tayab and 2 others v. Eastern Textile Mills Ltd. Chittagong and 12 others (PLD 1970 Karachi 357), Messrs European Grain & Shipping Ltd. v. Messrs Sargroh Oil Industries Ltd. (PLD 1982 SC 407) and the case Messr European Grain & Shipping Ltd. v. Messr Sargroh Oil Industries Ltd. (1984 SCMR 553). He has also placed reliance on subsection (3) of section 7 of the Act, 1937, and argued that where the parties resisting enforcement of foreign award on the grounds other than mentioned in subsections (1) and (2) of section 7, the Court is competent to invite further evidence of the parties. He has emphasised importance of such practice as far as instant case is concerned on the ground that there was an allegation of misconduct against their arbitrator and the proceedings being conducted at Liverpool, U.K., no record was within the possession of either of the parties to prove such alleged misconduct of the Arbitrator. In order to understand his arguments it would be pertinent if subsection (3) of section 7 of the Act, 1937 is reproduced:-- "S.7. (1)……………………………………… (2) …………………………………….. 1882 (3) If a party seeking to enforcement of a foreign proves that there is any I than the non-existence of conditions specified in clause and (c) of subsection (1), existence of the conditions specified in clauses (b) and (c) of subsection (2), entitling him to contest the validity of the award, the Court may, if it thinks fit, either refuse to enforce the award or adjourn the hearing until after the expiration of such period as appears to the Court to be reasonably sufficient to enable that party to take the necessary steps to have the award annulled by competent tribunal." 5. The cases Muhammad Keramat Ali and Haji Tayab (supra) pertain to the interpretation of sections 16, 30 and 33 of the Arbitration Act, 1940. In the case Alhaj Muhammad Keramat Ali & Co. (supra), it was held by a Division Bench of the then Dacca High Court, that "the question as to how many bales were actually opened, is of a question relating to what happened before the arbitrators and if there was any dispute with regard to it, the arbitrator could be called as witness to ascertain the same". Reference was made to the case Leiserach v. Schalit (1934) 2 KB 353). The judgment in case Haji Tayab (supra) was delivered by a Division Bench of this Court. In that case one of the grounds for attacking the award was that it was invalid as the arbitrator neither issued any notice nor heard the appellants at any stage of the arbitration proceedings. It was observed by the Division Bench of this Court that "in this connection we would state that the least that could have been done in view of this being the main issue before the learned Single Judge was to summon the arbitrator as a Court witness". The cases Leiserach and Muhammad Keramat Ali & Co. (supra) were referred to. Reference was also made to an earlier decision of another Division Bench of this Court in S.M. Fazail & Company v. Overseas Cotton Company (PLD 1959 Karachi 320) where it was observed that in a case where .allegations are made by parties against an arbitrator or an umpire, it is always better to examine such umpire or arbitrator as Court witness to meet the allegations made against him in respect of partiality. However, all these cases arise out of the proceedings from Arbitration Act, 1940. 6. The case of European Grain & Shipping Ltd. as reported in PLD 1982 SC 407, is a leave granting order while the same case is reported in 1984 SCMR 553 which is the order of appeal. One of the issues framed in that case was whether the arbitrators have misconducted for which the trial Court granted permission to the respondent/ appellant for examining two witnesses on commission who were residents outside Pakistan. This question reached Supreme Court and the leave to appeal was granted to consider, inter alia, whether in such a case, the only evidence that can be recorded against the enforcement of the foreign award are that which relate to proving all or any of the grounds mentioned in section 7 (1) and (2) of the Act, 1937, and whether evidence relating to misconduct in such proceedings can only be confined to that kind of misconduct which is also regarded as breach of rules of natural justice and not "misconduct" of general nature? However, it was not felt necessary by the Hon'ble Supreme Court to decide these questions as neither the trial Court nor the Lahore High Court 1883 had by that time decided the question of law and the jurisdiction involved in that case. Thus, the matter was remanded for decision on the legal and jurisdictional issues at an early date. These authorities do not lend any support to Mr. Hamza Ali, Advocate. Both the learned counsel have candidly admitted that there is no law on this question in so far as Act 1937, is concerned. 7. Section 7(1) of the Act, 1937 deals with the question of enforceability of a foreign award. Su section (2) deals with the cases where a reign award cannot be enforced. Subsection (3) deals with a different situation not covered by subsections (1) and (2). Section 7(3) of the Act 1937 enables a party to resist the enforcement of a foreign award on grounds other than the mentioned in clauses (a), (b) and (c) of subsections (1) and clauses (b) and (c) of subsection (2). The only condition laid down in subsection (3) is that such party should prove that there is no other ground, other than the grounds mentioned earlier in subsections (1) and (2). The burden is upon the party resisting the enforcement of foreign award to prove that there exist other grounds to resist the enforcement of a foreign award. In my considered view, the ground of misconduct committed by an arbitrator may be termed as "any ground" to resist the enfordement of a foreign award. No law, either in Pakistan or in England, permits an arbitrator to commit misconduct; therefore, it may be termed to be a good ground to resist the enforcement of a foreign award under subsection (3) of section 7 of the Act 1937. I am fully conscious of an earlier decision of this Court reported as Messrs European Grain & Shipping Ltd. v. Messrs Polychem Company Ltd. (PLD 1990 Karachi 254) where it was held that the scope of section 7 of the Act 1937 is restricted only to the grounds referred to therein and thus it cannot be liberally construed. A plain reading of section 7(3) will show that the Court is competent to refuse enforcement of an award on "any ground" other than mentioned in the clauses of subsections (1) and (2). Nowhere this term "any ground" as used in section 7(3) is defined in the entire Act of 1937. In my humble view, it will include such grounds which are contrary/violative of the Islamic Injunctions, the Objectives Resolution, Fundamental Rights and other established laws of this country. (See: Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1 at pages 22/23). 8. How can a party prove misconduct of an arbitrator, when the arbitrator's proceedings were conducted outside Pakistan? In the instant case, the entire record of the two proceedings, one held before the arbitrators and, the second held before Technical Committee in appeal, are in the possession of the Liverpool. Cotton Association (L.C.A.). For this limited purpose, and in order to enable the respondent to prove misconduct on the part of their arbitrator, this Court was competent to order examination of such arbitrator on commission. This does not mean that in all cases where allegations of misconduct are raised the Court should invariably order the examination of arbitrator. This exercise should be ordered in very rare and exceptional cases as of the instant case, or where the party raising such allegations, prima facie, establishes before the Court a case of misconduct of his arbitrator. None of the advocates have argued on the point as to what is the scope of misconduct in the matter of foreign award. Thus, I would not like to dilate upon this question any further but would like to observe that in 1884 the instant case, it is alleged by the respondents that they never authorised the arbitrator to act on their behalf. And that after giving a consent award, he appeared as their counsel at the appellate stage and challenged his own award. Again, it is claimed by the respondents that they did not authorise the arbitrator to act on their behalf before the Appeal Committee. If it is correct, then it may constitute one of such cases falling within the scope of misconduct. To clarify this position I would like to refer the case of Brooke Bond (Pakistan) Ltd, v. Conciliator and 6 others (PLD 1977 SC 237 at 267) where the term "misconduct" in reference to an arbitrator appointed under provisions of the Industrial Relations Ordinance, 1969, was considered in the following manner:-- “.... The term 'misconduct' used in connection with arbitration does not necessarily imply anything in the nature of fraud or moral turpitude. In the judicial sense the misconduct of Arbitrator means his failure to perform his essential duty, resulting in substantial miscarriage of justice between the parties. According to Atkin, J. in Williams v. Willis (*) the words ' misconducted the proceedings' means such a mishandling of arbitration as is likely to cause some substantial miscarriage of justice. In the American Juris-prudence, Vol. 3, on pages 964-5, it is observed that awards which are valid on their faces may be set aside in equity for misconduct on the part of arbitrators, and the extrinsic evidence is admissible to prove such misconduct. Conduct inconsistent with the duties imposed upon those selected as the arbitrators, either at the hearing, or in reaching their conclusions will frequently constitute misconduct as will impeach an award..." (*) Williams v. Willis (83 LJ KB 1296). 9. Unfortunately this matter is pending for the last 22 years. For the first time, respondents tiled their objections on 3-10-1977 raising as many as 23 objections. Now, due to lapse of time several objections raised by the respondents have been answered by the different Courts in different proceedings and therefore Mr. Hamza I. Ali has rightly confined his arguments to mainly five objections which are reproduced as follows:-- (i) This is not a "Foreign Award" within the meaning of section 2 of Arbitration (Protocol and Convention) Act, 1937 and is therefore not enforceable. (ii) The Award is a copy which is not certified by Consulate General of Pakistan in U.K. as required by Rule 298 of Sindh Chief Court Rules (O.S.). 1885 (iii) The power of attorney is inadmissible, firstly, as it is a photocopy and secondly it has not been re-stamped under sections 3 and 18 of Stamp Act. (iv) The application and Vakalatnama have not been duly signed under due authority. (v) The Award is not enforceable having been made in violation of law governing arbitration procedure and being contrary to public policy of Pakistan and due to misconduct of arbitrator Mr. C.P. Bramble. 10. Mr. Hamza I. Ali argued that in order to constitute foreign award three conditions are necessary, namely, it should be result of an agreement for arbitration as set-forth in the First Schedule to the Act, 1937. Secondly, it should be between persons of whom one is subject to the jurisdiction of one of such powers which the Federal Government has notified in the official Gazette and the other is subject to the jurisdiction of some of the other powers. It was argued that at the relevant time when the award was announced Hong Kong was a crown colony of the England and cannot be treated as another power. According to learned counsel, this situation is not covered by the Notification issued by the Central Government. It was further argued that the Foreign Award and Maintenance Orders, Enforcement (Amendment) Ordinance, 1962 has not declared Pakistan to be power party to the Convention and declared U.K. as one of the territories to which the Convention under Act 1937 applied; therefore, he argued the respondent is not subject to the jurisdiction of his "Britanic Magesty". To summarize his arguments, Pakistan has not so far declared itself power party to the Convention and therefore, the conditions prescribed by section 2 of the Act, 1937, are totally absent, and, hence award made by the arbitration of the Liverpool Cotton Association cannot be treated as foreign award. Learned counsel for the respondent, has cited all the case-law, for and against his case which are as follows:-- (i) Dalmia Cement Ltd. v. National Bank of Pakistan (1974) 3 All ER 189). (ii) Messrs Barlas Bros. (Karachi) & Co. v. Messrs Yangtze (London) Ltd. (PLD 1959 Karachi 423). (iii) Messrs Yangtze (London) Ltd. v. Messrs Barlas Brothers (Karachi) (PLD 1961 SC 573). 1886 (iv) Nan Fung Textiles Ltd. Hongkong v. H. Pir Muhammad Shamsuddin (PLD 1979 Karachi 762). (v) Nan Fung Textiles Ltd,v. Sadiq Traders Ltd. (PLD 1982 Karachi 619). (vi) Ralli Brothers & Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. (1987 CLC 83). (vii) Petrocon (Pvt.) Ltd. v. Hyderabad Development Authority, Hyderabad (1990 MLD 1675). (viii) Hassanali & Co. Cotton (Private) Limited v. Poly Cotton S.A., 2-Rue, Andrien Vallin, 1201 Geneva, Switzerland and others (PLD 1996 Karachi 416). 11. Mr. Hamza Ali, laid much emphasis on the interpretation of section 2 of the Act 1937. He stressed that this provision envisages two separate powers which must have been declared as parties to the Convention. On this premise, he argued that there is only one power mentioned in the notification which is "His Britannic Magesty" while in the instant case, according to learned counsel, there are parties belonging to two powers. He pointed out that the plaintiff is registered in Hong Kong, which is a Crown Colony and the defendant Nichiman is subject of another power i.e. Pakistan. He has placed much reliance on the case of Dalmia Cement Ltd. (supra) where the Queen's Bench Division, declined to enforce the award requiring Bank of India to make payments to the Dalmia Cement Ltd. In that case, the question involved was the definition of a foreign award as provided in section 35 of the English Arbitration Act, 1950. That case was considered strictly from the point of view English Law vis-a-vis Indian Arbitration Act, 1940 and the case of Pakistan was held to be different than the case before the Queen's Bench. Reference was made to the Foreign Awards and Maintenance Orders Enforcement (Amendment), (1962) (PLD 1962 Central Statutes 607) through which subsection (2) was introduced in the Act 1937 which reads as follows:-- “.....(2) For the removal of doubt it is hereby declared that any notification issued under this section by the late Government of India before the fifteenth day of August, 1947, and in force on that day for the purpose of enforcement of foreign awards in British India, declaring any Power to be a party to the said Convention or any territory to be the territory to which the Convention applies, shall be deemed to be a 1887 notification issued by the Central Government for the purpose of enforcement of foreign awards in Pakistan .... " 12. Mr. Bashir Shaikh has referred to the cases Nan Fung Textiles, Ralli Brothers, Petrocon, and Hassan Ali (supra). The question of reciprocal arrangement was considered by this Court in the both cases of Nan Fung (supra). In the case of PLD 1979 Karachi 762 at 777 (Nan Fung Textiles), more or less same plea as of Mr. Hamza Ali was taken by Mr. A. Rauf, Advocate who was opposing the enforcement of a foreign award made as per rules and regulations of the Liverpool Cotton Association Ltd. In that case also, the plaintiff was a firm of Hong Kong and the defendant was of Pakistan origin. Reference was made to the judgment of Justice Kerr of Queen's Bench Division in the case Dalmia Cement Ltd. (supra) whereafter it was held by Ajmal Mian, J. (now Chief Justice of Pakistan) that "It is the privilege or prerogative of the Government of Pakistan to decide as to whether the award given in a particular foreign country should be enforceable in Pakistan or not, notwithstanding that the country in which the award has been given has not made any reciprocal arrangement for the enforcement of Pakistan awards as contemplated in section 2 of the Act. The Government of Pakistan has expressed its intention not through a notification but it has been manifested through an enactment and, therefore, I cannot decline to enforce the instant award on the ground that in England no reciprocal provisions have been provided for the enforcement of Pakistani awards………" This view was followed by another Judge of this Court Saleem Akhtar, J. (as his lordship then was) in the case of Sadiq Traders (PLD 1982 Karachi 619). The arguments of learned counsel for the respondent did not compel me enough to take a view contrary to the two decisions of Nan Fung cases. The decision of Dalmia Cement Ltd. (supra) is of no help to the respondent as the learned Judges of the Queen's Bench, have held that in Pakistan it is a different situation, in view of the introduction of subsection (2) to section 2 of Act 1937. Following is the relevant observation from the case of Dalmia Cement Ltd. (1974) 3 All ER 189 at 198):-- “.....It is also right to mention that the difficulty which faces me has been recognised in the municipal law of Pakistan. This is shown by the decision of Supreme Court of Pakistan in Yangtze (London) Ltd. v. Barlas Bros. (Karachi) (PLD 1961 SC 573) to which I was referred by counsel for the Bank. The Supreme Court there held, in effect, that despite the continued operation in Pakistan of the India Arbitration (Protocol and Convention) Act, 1937 by reason of section 18 of the Indian Independence Act, 1947, the Republic of Pakistan was not a party to the Convention. This was remedied by the Pakistan Foreign Awards and Maintenance Orders Enforcement (Amendment) Ordinance, 1962 which was enacted (for the avoidance of doubt) retrospectively to 15th August, 1947, the date on which the Dominion of Pakistan came into existence. While this illustrates the same difficulty in relation to the municipal law of Pakistan, I mention it only for the sake of completeness. It has no direct bearing, since I have to decide the issue on the basis of the law of this country. Unfortunately, if my conclusion in relation to the law of this country is correct, then the position is that although the legation of both India and Pakistan since 1962 clearly appears to provide for satisfactory reciprocal arrangements in these countries for the 1888 purposes of section 35(1)(b) of the 1950 Act, the position in the United Kingdom is that further formal Orders-in-Council are needed to fulfil the requirements of this section as a matter of English Law .... . 13. Recently in the case of Hitachi Ltd. and another v. Rupali Polyester and others (1998 SCMR 1618 at 1650) the Hon'ble Supreme Court, after reference to the cases as mentioned in para. 10 and other cases, made certain distinctions in the foreign and domestic awards and held inter alia, that the nationality of the award does not solely depend on the venue of arbitration proceedings. Reference was also made to the case Oil and Natural Gas Commission v. Western Company of North America (AIR 1987 SC 674). The two awards which were subject-matter of that case were held to be domestic awards as the same were made on an arbitration agreement governed by the laws of Pakistan. In the instant case, it is not claimed by the respondent that the constitution of arbitration and the proceedings before the arbitrators were to be governed by the Pakistani Laws. I may also refer here to para. 633 of Vo1.2 of the Halsbury's Laws of England (4th Edn. 1973) where foreign award has been defined as an award given after 28th July, 1924 "pursuant to an agreement for arbitration to which the Protocol on Arbitration clauses applies, between persons subject to the jurisdiction of such powers as may be declared by Order-in-Council to be parties to the Convention on the Execution of Foreign Arbitral Awards, and in one of such territories as may be similarly declared to be territories to which the Convention applies". The present award has all characteristics and ingredients of a foreign Award. (See: Messrs Rupali Polyester Ltd. v. Dr. Nael G. Bunni and others (PLD 1994 Lahore 525). 14. As a result of the above discussion„ the objection of the respondent that it is not a foreign award is overruled. Now, I will deal with the other objections that this award is not enforceable in Pakistan as contended by Mr. Hamza Ali. 15. The second objection of the respondent pertains to non-filing of certified copy of the award. It was argued by Mr. Hamza Ali that section 8 of the Act 1937, requires that the party seeking enforcement of foreign award must produce, either the original award or a copy of such award duly authenticated in a manner regarded by the law of the country in which it was made. It was contended that only a photo copy of the award was filed which was neither authenticated in a manner as prescribed by law nor it was attested by any officer of the Pakistan Embassy in England and, therefore, no presumption as to its genuineness could be drawn as provided in Rule 298 of the Sindh Chief Court Rules (O.S.). It was argued by Mr. Bashir A. Shaikh that the second objection raised by the respondent is misconceived as original award, dated 1st May, 1974 stood merged in the appeal award, dated 2nd May, 1975, pronounced by the Technical Appeal Committee and that original copy of Appellate award has been filed as Annexure 1889 "G" to the petition. He has further submitted that on 7th February, 1998, the original copies of the authentication by the Notary Public, England alongwith statement on oath of Mr. W.J. Neotan, the then General Manager of Liverpool Cotton Association, certifying to be true copies of the originals, were filed in this Court. Both the advocates have referred to Article 89(v) of the Qanun-eShahadat, 1984 which provides that to prove a public document of a foreign country, the requirement will be either its original or a copy of certificate by Legal Keeper certified under the seal of a Notary Public or of a Pakistan Counsel or Diplomatic Agent. Mr. Bashir Shaikh has also placed reliance on the case Farokh Homi Irani v. Nargis Farokh Irani (PLD 1963 (W.P.) Karachi 567). In that case the objection was that the foreign judgment which was produced before this Court and which was a judgment of the Bombay High Court, was not in accordance with the section 86 of the repealed Evidence Act, 1872. I would like to stop here for a moment to say that both the provisions of Evidence Act (now repealed) and Qanun-e-Shahadat as referred above are identical. The objection raised was overruled by the learned Single Judge of this Court Waheeduddin Ahmed, J. (as his lordship then was), in view of the fact that petitioner himself admitted in the evidence that an ex parte judgment was passed by the Bombay High Court. 16. I have examined Annexure-G filed with the plaint which is a photo copy of an award signed by the Chairman, Technical Appeal Committee. In respect of this photo copy, one Mr. Modood Ahmed Khan, claiming to be the attorney of plaintiff, has filed his affidavit as Annexure-H to the plaint, stating on oath that the original and appellate awards were made in pursuant to the arbitration agreement and that this is the final and conclusive determination of the dispute between the parties. Therefore, Mr. Bashir A. Shaikh was not correct when he said that the copy of award of Appeal Committee filed with the plaint was duly authenticated. Further perusal of case file indicates that on 7-2-1998 the learned counsel for the petitioner has filed original copy of Annexure-G to the plaint, as well as original of Annexure-I. Mr. Hamza Ali has rightly objected on the mode of bringing original document on record as adopted by the counsel for the petitioner; he went to the extent of saying that these documents were filed surreptitiously by the plaintiff at the back of the respondent; therefore, such documents cannot be considered. 17. It is not in dispute that an award was passed as a result of arbitration conducted under the Rules and Regulations of L.C.A. This objection was raised initially in the year 1978, which is now being reiterated by the respondent. But during this period, much development took place in this case. The respondents' arbitrator, namely Mr. C.P. Bramble, was examined on commission by order of this Court as referred in para. 3 above. No question was suggested by the respondent, on whose application such commission was ordered, that no award was given. Even in the objections filed by the respondent, the pronouncement of the two awards, one by the arbitrator, another by the Technical Appeal Committee, have not been denied. It is the manner of proceedings and the conduct of arbitrator, which have been challenged. It would be further relevant to refer to paras. Nos.7 and 8 of the concise statement, dated 22-9-1979 filed by the counsel for respondents for the purpose of forwarding interrogatories for the 1890 examination of witnesses. All these facts indicate that there was an award announced by the arbitrator, which was confirmed by the Technical Appeal Committee of the Liverpool Cotton Association (L.C.A.). The respondent has filed evidence as per provision of section 8(1) of the Act, 1937 to prove the Award but at a belated stage and not in a befitting manner. During the final stages of the arguments, these authenticated copies of award were available on the case file and to non suit the plaintiff, merely on this technical ground, will be to press technicalities too far. Mr. Bashir A. Shaikh has placed reliance on the cases Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) where it was held by a Full' Bench of Hon'ble Supreme Court that the; object of procedural law, legal formalities and. technicalities should not be allowed to defeat the ends of justice. Recently in the case of Jameel Ahmed v. Late Saifuddin (1997'SCMR 260) it was held inter alia, by the. Supreme Court, While reiterating the principle laid down in the cases Manager, Jammu and Kashmir State in Pakistan (supra) and Imtiaz Ahmed v. Ghulam Ali and others (PLD 1963 SC 382 at 400) that "It is well settled that principal object behind ail legal formalities is to safeguard the paramount interest of justice and mere technicalities unless offering a insurmountable hurdle should not be allowed to defeat the ends of justice". In the case Mst. Begun and others v. Mst. Begun Kaniz Fatima Hayat and others (1989 SCMR 883) it was held by a Full Bench of Hon'ble Supreme Court that the procedure or rules are meant to foster cause of justice and that a party should not be burdened with penalty except when positive evidence of negligence beyond explanation is available. Further reference can be made to the case of Jane Margaret William v. Abdul Hameed Mian (1994 SCMR 1555 at 1563) where following observations were made:-- “.....There was nothing in law which prevented the Court from treating the application under section 151, C.P.C. filed by respondent as cross objection to the appeal filed by the appellant, if it was otherwise competent in law. It needs no mention that all rules of procedure framed for regulating the proceedings before a Court or Tribunal are meant for advancing the course of justice. Therefore, procedural laws and rules cannot be used as a means for denying the relief to an aggrieved party on ground of technical non-observance of these rules or procedural laws ...." 18. As a consequence of aforesaid discussion, I overrule the second objection raised by Mr. Hamza I. Ali, learned counsel for the respondents. This brings us to objections Nos.3 and 4 which I would like to discuss jointly as both a;e inter-related. The third objection of the respondent is in respect of the power of attorney and fourth in respect of the execution of Vakalatnama. 19. It was argued by Mr. Hamza I. Ali that the power of attorney filed with the petition was not authenticated by the Pakistan Consulate at England or Hong Kong and that its photo copy was filed. Reliance is placed on Article 95 of Qanun-e-Shahadat, 1984. However, he has not denied that the 1891 petitioner has filed originals of the said document on 7-2-1998. It will be pertinent to note that after filing of this petition, office raised objection on the same day i.e., 8-11-1997 where one of the objection was that the compliance of Rule 114 of Sindh Chief Court Rules (O.S.) has not been made. Sub-rule (1) of Rule 114 requires filing of a power of attorney in Court in case a party is represented by a recognized agent. Sub-rule (2) provides that the Deputy Registrar shall examine such power of attorney and if it contains necessary powers shall make an entry to that effect at the foot of the proceeding and return the power-of-attorney to the recognized agent. It is further provided in this sub-rule that where any objection is raised by a party, the petitioner shall leave a copy of the power of attorney at the office of the Deputy Registrar for inspection by the opposite-party or his advocate. From perusal of note at page 2 of the petition (reverse of page I) it would appear that the office objection raised for compliance of Rule 114 was complied with by the petitioner. In case the respondent had any further grievance, he should have applied for inspection of the said power of attorney as provided in sub-rule (2) of Rule 114 of Sindh Chief Court Rules (O.S.). 20. I have examined the original power of attorney which is, dated 24-4-1976 and duly notarised at Hong Kong. It is countersigned by one Mr. Azfar Shafqat, Vice-Consular, Consulate General of Pakistan, Hong Kong and is stamped with Rs.25 adhesive stamp. It appears from the office noting that its original was shown at the initial stage in order to meet the office objection No. 1. Mr. Bashir Sheikh has referred to the case In re: Succession Certificate of Mrs. Parveen Akhtar (deceased) (PLD 1993 Karachi 280) where a learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his lordship then was), held, inter alia, that the Stamp Act is a fiscal statute which is strictly construed and any ambiguity arising therefrom is to be resolved in favour of the subject. It was further held that the power of attorney duly stamped in Pakistan before its execution abroad, would not require re-stamping in Pakistan after its receipt from abroad. I am of the considered view that since the power of attorney executed at Hong Kong was already stamped at the office of Consulate General of Pakistan at Hong Kong, it does not require further stamping in Pakistan. 21. It was submitted by Mr. Bashir Sheikh that the power of attorney was duly authenticated and stamped before the Vice-Consular of Pakistan Embassy at Hong Kong and pursuant to the same authority Vakalatnama was duly executed. He has relied upon cases Lt.-Col. (Retd.) P.G. Braganza v. The Border Area Allotment Committee and another (1984 CLC 1479 at 1484), Ismail and another v. Mst. Razia Begum and 3 others (1981 SCMR 68), Wali Muhammad Khan v. Ishak Ali Khan and others (AIR 1931 Allahabad 507), Haji Muhammad Rafiq v. Shahenshah Jehan Begum (PLD 1987 Karachi 180) and Messrs Pakland Scientific Production v. Messrs Pioneer Insurance Company Limited and another (PLD 1991 Karachi 414). These authorities are not relevant as they pertain to defects in the plaint which can be cured at a subsequent stage and for its non-compliance a party was held not to be non-suited. Here, the objection of Mr. Hamza 1. Ali is that the power of attorney was not properly stamped as provided under section 18 of the Stamp Act, 1899. Be that as it may, such bar is not so fatal to the maintainability 1892 of these proceedings that the award could not be set aside. Section 18 provides that every instrument excluding bill of exchange and promissory note if executed out of Pakistan unstamped can be stamped within three months after it has been received in Pakistan. The only consequence which follows is that if such document is not properly stamped then the Collector is entitled to recover duty and penalty. Recently, it was held by a Full Bench of Hon'ble Supreme Court in Sirbaland v. Allah Like and others (1996 SCMR 575) that unstamped or improperly stamped instruments were not invalid but subject to disabilities specified in section 35 of the Stamp Act, 1899. The purpose of Stamp Act is not to invalidate any instrument but to protect the public revenue. Further reliance is placed on the case Union Insurance Company of Pakistan Ltd. v. Hafiz Muhammad Siddique (PLD 1978 SC 279). 22. It was contended on behalf of respondents that another defect fatal to the instant proceedings is that the petition and Vakalatnama have been signed by one attorney while the power of attorney was executed by the Directors of the petitioner in favour of two attorneys. I have examined the contents of the power of attorney. Nowhere it is provided that the powers delegated through the said deed are to be executed jointly by two attorneys. In absence of such specific clause, the power of attorney could not be considered to be a joint power of attorney and, therefore, even if it is signed by one of the attorney, it will be sufficient compliance of the rules. All these facts lead me to hold that these objections are not tenable and are overruled. 23. It has been vehemently argued by Mr. Hamza I. Ali in support of his last objection that the award is not enforceable having been made in violation of law and being contrary to public policy of Pakistan. In this connection, it would be most relevant if para. 9 of the main objection is reproduced which reflects the gist of the attack of respondents on these proceedings: "9. From the foregoing facts it is patent that the entire arbitral procedure adopted in the above case is contrary to law of arbitration and basic principles of law and natural justice and also against public policy in inter alia following respects: (i) The arbitrators were in consultations with each other and had pre-determined the dispute and its nature when one of them was acting for the petitioners and the other for Yasin; the arbitrators thus entered upon the reference with a bias; 1893 (ii) the arbitrators acted as agents of the parties instead of acting as impartial Judges; (iii) Mr. C.P. Bramble was never appointed an arbitrator by the respondents; (iv) no notice of arbitration proceedings was ever given to the respondents who had no opportunity to present their case before the arbitrators; (v) the arbitrators did not arbitrate in the proper sense of the term arid the resultant award is ex parte. The Appeal Award based on the original illegal award is likewise illegal and unenforceable; (vi) the arbitrators who were the Judges at the initial stage of arbitration appeared as representatives of the respective parties, Mr. Bramble attacking his own award. The appeal award is therefore bad; (vii) Mr. C.P. Bramble should have disagreed with Mr. Anderson and the arbitrators should have appointed an Umpire, as it is obvious that the arbitrators could not have agreed to a joint award which one of them, Mr. Bramble, was to attack before an Appeal Committee' (viii) the arbitrators acted as Judges and parties in the same cause. If it is contended that the procedure adopted was according to the practice prevailing in England or before Liverpool Cotton Association Ltd. it is submitted that the practice even if proved is against principles of natural justice and of public policy in Pakistan and is bad in law. " 24. To further elaborate his objection No.5, Mr. Hamza I. Ali argued that the last objection comprised of three parts, namely:-- 1894 (a) Irregular procedure adopted by the arbitrators shall be violative of the arbitration law; (b) The Award being against public policy, could not be enforced in Pakistan; (c) Misconduct of their arbitrator, Mr. C.P. Bramble. In further support of his contention, it was argued by Mr. Hamza I. Ali that there was no direct and proper appointment of Mr. C.P. Bramble from the respondents' side; no notice of hearing was given by the arbitrators to the present respondents; no minutes of hearings were maintained and that no representative of the parties was permitted to be present during the arbitration proceedings. It was further stressed that Mr. C.P. Bramble acted as agent of the party and not as an impartial Judge/arbitrator and that he approached the reference with predetermined ideas. In such background, it was argued that the award being bad in law and being against public policy of Pakistan, is not enforceable in view of subsection (3) of section 7 of the Act, 1937. Mr. Hamza I. Ali has placed reliance on paragraphs 578 and 590 of the Halsbury's Laws of England, 4th Edition, Volume II, pages 302 and 306. He has also referred to Rassel on Arbitration and the case Ram Lal Roshan & Co. v. B. C. Paul and Sons (P.) Ltd. (AIR 1960 Calcutta 547). 25. Mr. Bashir A. Sheikh, learned counsel for the petitioner has argued that the award in question is fully enforceable in Pakistan and that the same is not against the public policy or against any law of Pakistan. It was argued that no English law of arbitration or any provisions or rules and regulations of Liverpool Cotton Association were violated during arbitration proceedings. It is also denied that Mr. C.P. Bramble has committed any misconduct. Mr. Bashir A. Sheikh has placed reliance on the case Marines Ltd. v. Aegus Shipping Co. Ltd. and 4 others (1987 CLC 1299) which is a decision of this Court given by Saleem Akhtar, J. (as his lordship then was). Relying on this case, it was argued that the grounds to challenge an award on the point, of misconduct as envisaged in sections 30 and 33 of the Arbitration Act, 1940 are not available in a proceedings for enforcement of a foreign award under the provisions of Arbitration (Protocol and Convention) Act, 1937. In support of the contention that Mr. C.P. Bramble was duly appointed as arbitrator on behalf of respondent, reliance was placed on the case of Rally Brothers and Coney Ltd. v. Muhammad Amin Muhammad Bashir Ltd. (1987 CLC 83). 1895 26. To some extent, I have discussed question of misconduct in reference to subsection (3) of section 7 of the Act, 1937 in paras. 7 to 9 above. Before proceeding further, it would be advantageous to reproduce paras. 578, 590 and 622 from the Halsbury's Laws of England, 4th Edition, Volume II:-- "578. Powers of arbitrator acting in non-judicial capacity.--- Where the reference is made to two arbitrators with power to appoint an umpire, and the umpire enters on the reference when the arbitrators disagree, the arbitrators are functus officio as arbitrators. In such circumstances it is then possible for the arbitrators to act in a non-judicial capacity. They may, for instance, give to the umpire evidence of fact (Bourgeois v. Weddell & Co. (1924) 1 KB 539) or expert opinion, (Cerrito v. North Eastern Timber Importers Ltd. (1952) 1 Lloyd's Rep. 330). There is also a modern practice in some arbitrations where the parties expressly or impliedly agree, for the arbitrators in such circumstances to appear at the hearing before the umpire as advocates for the parties who appointed them (French Government v. Tsurushima Marti SS (Owners) (1921) 37 TLR 961, CA; Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. (1960) 3 All ER 617). Though they may in such circumstances waive any irregularity in procedure under their implied authority (Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. (1960) 3 All ER 617, (1960) 1 WLR 1243), they cannot by virtue of their changed functions alter from those conferred by the original terms of reference either their authority (Re Fuerst Bros. & Co. Ltd. and Stephenson (1951) 1 Lloyd's Rep. 429, Rahcassi Shipping Co. SA. v. Blue Star Line Ltd. (1969) 1 QB 173, (1967) 3 All ER 301) or that of the umpire (Kawasaki Kisen Kaisha Ltd. v. Government of Ceyloan (1962) 1 Lloyd's Rep. 424 at 429).... 590. Times and places of meetings.-It is the duty of arbitrator, when called upon to act pursuant to the agreement of reference, to appoint times and places of meeting and to give due notice thereof to the parties. Where the reference is to more than one arbitrator, they should all concur in appointing such times and places and in doing all other acts in the course of the reference, unless the agreement for arbitration provides that the decision of the majority is to be binding (Ives v. Medcalfe (1737) 1 Atk 63 at 64) ..... 622. What constitutes misconduct.--It is difficult to give an exhaustive definition of what may amount to misconduct on the part of an arbitrator or umpire ....But even if the arbitrator fully complies with those terms, he will be guilty of misconduct if he makes an award which on grounds of public police ought not to be enforced ..... 1896 (4) if there has been irregularity in the proceedings, as, for example, where the arbitrator failed to give the parties notice of the time and place of meeting .... 27: In England, it is now established practice that where two arbitrators give a dissenting award they become functus officio and are subsequently appointed by their parties to act before the umpire in support of their respective cases. This aspect was considered by a learned Single Judge of this Court, Nasir Aslam Zahid, J. (as his lordship then was) in the case of Fredrick E. Rose (Commodities) Ltd. London v. Munsoor Ali Tanning Co., Karachi (NLR 1981 UC 175 at 190-191). In that case, reference was made to the cases French Government v. Teuru Shima Maru ((1971) 37 TLR 961) and Wessanen's Koninklijke Fabrieken NV v. Isaac Modiano Brother & Sons Ltd. ((1960) 3 All ER 617). It was held that two principles emerge from these cases i.e. (1) that hearing before the umpire is necessary, and (2) that in commercial arbitration, a practice has been established in England that in case of disagreement between the patties' nominated arbitrators, they become functus officio as arbitrators and then represented their respective patties, who had nominated them, before the umpire. In the instant case, situation is different. Here, both the arbitrators gave a consent award whereafter appeal was filed before the technical committee directly by the respondent and subsequently to filing of such appeal, Mr. C.P. Bramble was appointed. This fact was established during recording interrogatories at London. 28. Pursuant to the order of this Court, dated 20th August, 1978 whereby it was ordered that Mr. C.P. Bramble be examined on commission, it appears from the perusal of evidence file that the matter of examining these witnesses was placed before the High Court of Justice, England, Queen's Bench Division where on 4th October, 1983, it was ordered by the Master in Chambers that both the witnesses namely, Mr. C.P. Bramble and Mr. J.A. Wilson Smith will be examined by the District Registrar and accordingly the entire record was forwarded with the certificate of Senior Master of the Queen's Bench Division as provided under the Evidence (Proceedings in other jurisdiction) Act, 1975. During examination of Mr. C.P. Bramble, some 112 questions were put. It was a very exhaustive examination. Mr. Bramble has referred to several communications which he received from Pakistan and Hong Kong. He has also produced these communications before the examining authority/District Registrar. One such letter was exhibited and marked as C.P.B. 2 which is a letter, dated 23-8-1973 written by the Managing Director, Nichimen Co. (Pakistan) Ltd. to Mr. C.P. Bramble. Through this letter, it was acknowledged that respondent has received two copies of the award in respect of some other dispute. However, reference was made to the present case and Mr. Bramble was asked to try his best that the dispute should remain between Nan Fung and Yasin and not between N.F. and Nichimen Pakistan or Hong Kong. Then there is another letter, dated 25th November, 1974 written by the respondent to the Director General, Liverpool Cotton Association, England which is marked as J.W.S. 4 through which Mr. C.P. Bramble was appointed as representative of respondent in place of another arbitrator. Prior to that the respondent had filed 1897 appeal before the Technical Committee directly but subsequently appointed Mr. C.P. Bramble as their representative. There are correspondence earlier to that date. 29. The Secretary, Liverpool Cotton Association (LCA) Mr. J.W. Smith was also examined who stated that he is Secretary to LCA since January, 1982. He told the examiner that no record of the arbitration proceedings except the award itself are kept on the files of the Association. It was further stated by him that the parties to an arbitration correspond directly with the arbitrators and any letters of appointment are directly sent to such arbitrators. The Secretary, LCA had produced the letter from Nichimen & Co. Pakistan Ltd. appointing Mr. C.P. Bramble as their representative on appeal which was marked as JWS-4. He also admitted that respondent filed a direct appeal before the Technical Appeal Committee but subsequently engaged Mr. C.P. Bramble as their representative. He also admitted that the original as well as the award of the Technical Appeal Committee were against the respondent. The Secretary, LCA has produced several documents from his file which include communications between LCA and the respondent which also show that after the original award, the appeal was filed in person by the respondent raising several allegations against their own arbitrator, Mr. C. P. Bramble but subsequently they appointed him as their representative before the Technical Appeal Committee. This all shows that the respondents acquiesced in the acts of their arbitrator. If there had been a genuine grievance to the respondents in respect of the misconduct as allegedly committed by Mr. C.P. Bramble, their arbitrator, why would have then again appointed him as their representative before the Technical Committee? This act of subsequently engaging the services of Mr. C.P. Bramble at the appeal stage is fatal to the objections of the respondent that Mr. C.P. Bramble was never appointed as one of the arbitrator. In Pakistan it may be misconduct for an arbitrator who after giving a unanimous/consent award to appear in another forum for the same patty against the award given by him. In this regard, I would like to refer Rule 174, Chapter XII of Pakistan Legal Practitioners and Bar Councils Rules, 1976 which reads as follows: "174. An advocate should not accept employment as an advocate in any matter upon the merits of which he has previously acted in a judicial capacity .--- An advocate having once held public-office or having been in the public employment, should not, after his retirement accept employment in connection with any matter which he has investigated or dealt with while in such office, nor employment except in support thereof. 30. In the instant case, the respondents want to take advantage of their own wrongs. Once they have re-engaged the services of Mr. C.P. Bramble, they cannot be permitted to take the plea of misconduct while seeking setting aside of the award and to deprive the petitioner of the fruits thereof. If such acts of the respondents are upheld and the instant award is not made rule of the Court, then, 'this will create a bad precedent and all such persons against whom a unanimous award is passed, would ask their arbitrators to act on their behalf in appellate proceedings, in 1898 order to get the award frustrated. Whatever the arbitrator's conduct may be from the material produced before this Court, it is clear that the party, appointing such arbitrator acquired in the same. Now, such party is estopped from pleading the same before this Court. For this reason and from the aforesaid conduct of the respondent, I am not inclined to hold that Mr. C.P. Bramble committed any misconduct and that for this reason the award stands vitiated. 31. As a result of the above discussion, I am of the considered view that all the objections raised by the respondents are not sustainable and they :Ire accordingly over-ruled. Result of such finding is that the Award given by the Technical Committee of L.C.A. is made rule of the Court. H.B.T./'N-105/K Order accordingly. 1899 1997 P L C (C.S.) 1131 [Lahore High Court] Before Faqir Muhammad Khokhar, J MUHAMMAD ASIM and others versus TELECOMMUNICATION and others Writ Petition No. 24389 of 1996, decided on 12th March, 1997. (a) Constitution of Pakistan (1973)--- ----Arts. 2A, 25, 27 & 199---Constitutional petition---Civil servant--Termination of service---Petitioner's appointment on daily wages/ad hoc or work-charge basis for number of years---Effect---Petitioners and similarly placed employees had been discriminated against inasmuch as number of other employees who were recruited like that of petitioner but subsequent to petitioner and even other persons, who were not in service, had been regularised/appointed on regular basis on political considerations under directions of Prime Minister's Secretariat---Such persons had been appointed without considering claim of sitting employees with much more length of service for regularisation or permanent appointment---Respondent's action in ignoring petitioners 1900 and other similarly placed employees was arbitrary and discriminatory---Principle of first come, last to go was to be applied in such cases---Fundamental rights of petitioners and other similarly placed employees guaranteed under Arts. 2A, 25 & 27 of the Constitution were, thus, grossly violated by respondent---Impugned action of respondent against petitioners was declared to be without lawful authority and of no legal effect---Process of termination of similarly placed employees was also declared to be without lawful authority and of no legal effect provided they were appointed before 1-1-1996 on daily wages/ad hoc/work-charge basis with or without breaks---Respondent was directed to formulate policy by specified date for purpose of consideration for regularisation of service of employees Who were appointed before 1-1-1996 on daily wages etc. and had rendered service for 1,80 days or more with or without artificial break. Arif Ali v. Government of Pakistan 1994 PLC (C.S.) 178 and Amin Ahmad v. Government of Pakistan PLD 1996 Kar. 27 ref. (b) Constitution of Pakistan (1973)--- ----Arts. 3, 14 & 199---Constitutional petition---Guarantees of social and economic justice and Fundamental Rights---Entitlement---Company created by statute--- Jurisdiction of High Court in respect of such company---Duty of employer in matter of appointment of employees stated. Constitution specifically provides for enforcement of Islamic values and Islam being the State religion guarantees the social and economic justice and fundamental freedoms and rights to the citizens. The employer would not be allowed to dictate his terms of appointment taking advantage of the absence of the bargaining power in the employees and to force an employee to accept employment on take it or leave it terms offered by the employer. The human dignity and better conditions of work with proper remuneration has also been secured by Articles 3 and 14 of the Constitution. The power of regularisation or otherwise has to be free from arbitrariness. It is too late in the day to take a position that Company which was created by Statute in contradistinction of a Company created under a Statute was not subject 1901 to the jurisdiction of the High Court under Article 199 of the Constitution. It is now well-settled that a Government Company created by the provisions of the Statute itself was amenable to the jurisdiction of the High Court. Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lah. 840; Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417; Syed Mumtaz Shah v. Chairman, N.P.T. 1994 PLC (C.S.) 810 and State of Haryana v. Payara Singh (1992) 4 SCC 118 rel. Mushtaq Ahmad Qureshi for Appellants. Hameed-ud-Din, Legal Adviser for Respondents. Date of hearing: 12th March, 1997. JUDGMENT The petitioners were appointed on daily wages basis as Telephone Operators in the Telephone and Telegraphic Department of the Government of Pakistan in early 1990 and were adjusted in BPS-7. They were continued in the service as Telephone Operators as on daily wages/ad hoc of work charge since 1990 or on leave vacancy basis with or without artificial breaks. By order dated 18-1-1997 the services of petitioner No.2 were terminated by respondent No. 2. Similarly, petitioner No. 1 was also threatened with the termination of service. Both the petitioners moved the writ petition for securing their service rights and calling in question the impugned action on the part of the respondent. 1902 2. The learned counsel for the petitioners submitted that the respondents were bound by law to regularise the services of the petitioners as permanent workmen and to keep them as such in the matter of their salary/wages/seniority and promotion, etc. He further submitted that the petitioners and similarly placed employees had been discriminated against in violation of Articles 25 and 27 of the Constitution of Pakistan inasmuch as a number of other employees who were recruited like that of the petitioners but subsequent to the petitioners and even other persons who were not in service had been regularised/appointed on regular-basis on political considerations under the directions of the Prime Minister's Secretariat, Islamabad, during the years 1995 and 1996. Not only that certain appointments were also made in 1997 on regular-basis by the respondents by ignoring the petitioners and other similarly placed employees in disregard of their seniority and experience. 3. Ch. Hameed-ud-Din, Advocate, learned counsel for the petitioners argued the case at length. He submitted that the Government Department of Telephone and Telegraphic was converted into Pakistan Telecommunication Corporation by Act No. XVIII of 1991 with effect from 15-12-1990 called the Pakistan Telecommunication Act. Subsequently, there were some legislative changes introduced for the re-organization of the Corporation and Ordinance No. XXIII of 1995 called the Telecommunication Ordinance was promulgated with effect from 7-3-1995 whereby the organization was split into four authorities as under:- (i) Pakistan Telecommunication Authority; (ii) Frequency Allocation Board; (iii) National Telecommunication Corporation; and 1903 (iv) Pakistan Telecommunication Company Limited. Under section 12 of the Ordinance, the employees of the Corporation became the employees of Pakistan Telecommunication Company Limited and ceased to be the employees of the Pakistan Telecommunication Corporation from the date of the Company commenced its business, i.e., 31-12-1995 when the Company was incorporated as a Public Limited Company under section 154(2) of the Companies Ordinance, 1984, by the Deputy Registrar of Companies, Islamabad. The learned counsel pointed out that now Act No.XVII of 1996 called the Pakistan Telecommunication (Reorganization) Act, 1996, has been enacted by the Parliament effective from 31-12-1995 which is in the terms of Ordinance No. XXIII of 1995. The learned counsel submitted that the petitioners were neither civil servants nor were entitled to any legal protection in respect of their terms and conditions of service as they had become employees of the Company. He relied on the case of Arif Ali v Government of Pakistan (1994 PLC (C.S.) 178). He also referred to the case of Amin Ahmad v. Government of Pakistan (PLD 1996 Karachi 27) wherein it was held that after the completion of process of privatisation by the Government of Pakistan the employees of the Government became the employees of the Company. He further submitted that in any case all these employees who were employed on or after 1-1-1996 were the employees of the limited company to whom no legal protection was available in respect of the service conditions. The General Manager, L.T.R. (South) (Muhammad Aleem) was also called for to provide the details of the employees who were otherwise appointed/regularised on permanent basis and were either appointed on daily wages/ad hoc/against leave vacancy/work-charge or otherwise subsequent to the petitioners with lesser length of total service. List was also called for of permanent incumbents who were not at all in service and were outsiders who were appointed on regular basis during the years, 1995, 1996 and 1997. He pointed out that in his Region about 481 employees were appointed on regular basis in two phases during 1995-1996 out of whom 56 were appointed/regularised as Telephone Operators. He admitted that most of such employees were initially appointed on work-charge/daily wages/ad hoc subsequent to the petitioners and a number of other employees with more length of service without having regard to their dates of appointments. He also admitted that a number of employees have been 1904 appointed during the years 1995, 1996 and 1997 from outside and that the petitioners and similarly other employees continuing as workers since 1990 on daily wages/work-charge/ad hoc or against the leave vacancies in various capacities were not considered for regularisation on permanent basis against the permanent vacancies. He frankly conceded that a number of other persons on daily wages/work-charge, etc. junior to the petitioners and other employees were regularised on permanent basis or even the persons who were not in service were appointed on permanent basis on the directions of the Prime Minister's Secretariat during the years 1995-1996. Mr.Attiq-ur-Rehman, Director (Rules, Regulations and Recruitment) Headquarter, P.T.C., Islamabad, appeared in Court and stated that about 3,500 appointments were made on permanent basis in Punjab under the centralised scheme of recruitment under the directions of the Prime Minister's Secretariat. Such appointments were made of persons who were in service but without having any regard to their dates of appointments on daily wages or work-charged, etc., in various capacities such as Telephone Operators, Lineman, Assistant Lineman, etc. He also stated that appointments of 8,500 persons were made for Pakistan in two phases during 1995-96. He further disclosed that amongst these appointments 15 per cent were the appointments which were recommended by the C.B.A. Union of the P.T.C. irrespective of the seniority or original appointment position of the employees/workers. Even the persons who were previously not in service were also appointed. It was further pointed out that a number of employees who were employed with or without artificial breaks for so many years have been terminated or likely to be terminated shortly. 4. I have heard the learned counsel for the parties at length. It is a shocking state of affairs to know that a large number of persons were appointed in the Pakistan Telecommunication Corporation/National Telecommunication Company Limited under the orders of the Prime Minister's Secretariat in various capacities such as Telephone Operators, Linemen, Assistant Linemen, etc. without considering the claim of the sitting employees with much more length of service for regularisation or permanent appointment. It was arbitrary and discriminatory on the part of the respondents to have ignored to petitioners and other similarly placed employees from being considered for appointment on regular basis. The principle of first come first served or first come last go was to be applied in such like cases. The petitioners and other such employees who have rendered valuable service to the respondents could not be 1905 thrown out merely for the consideration that some other persons yielding influence on the political side had managed to get themselves appointed/regularised on permanent basis although they were either junior to the petitioners and other employees or they were not in service at all. The fundamental rights of the petitioners and other similarly placed employees guaranteed under Articles 2A, 25 and 27 of the Constitution of Pakistan were grossly violated by the respondents. 5. The question of regularisation in service is required to be examined keeping in mind the historical as well as the Constitutional perspective during the pre-partition colonial rule, the growth in the country was trading and most of the large size industries were controlled by the British interest. The relationship between the employer and the employee was governed by the rule of hire and fire. Those were the days of laissez fair when the contractual rights were placed above the human rights. The concepts of dignity of labour and just remuneration for work for workers were wholly alien. The workers were forced to work in appalling conditions at low wages without any job security. But " under our Constitution which specifically provides for enforcement of Islamic values and Islam being the State religion guarantees the social, economic, justice and fundamental freedoms and rights to the citizens. The employer is not allowed to dictate his terms of appointment taking advantage of the absence of the bargaining power in the employees and to force an employee to accept employment on take it or leave it terms offered by the employer. The human dignity and better conditions of E work with proper remuneration has also been secured by Articles 3 and 14 of the Constitution. The power of regularisation or otherwise has to be free from arbitrariness. It is too late in the day to take a position that a Company which is created by a Statute in contradistinction of a Company created under a Statute is not subject to the jurisdiction of the High Court under Article 199 of the Constitution. It is now well-settled that a Government Company created by the provisions of the Statute itself is amenable to the jurisdiction of the High Court. See the cases of Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lah. 840; Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417; Syed Mumtaz Shah v. Chairman, N.P.T. 1994 PLC (C. S.) 810. In the case of State of Haryana v. Payara Singh 1992 (4) SCC (118), it was held that in the case of long continuance in service of work-charge/casual/daily wages workers, the presumption for regular need of service would arise obliging the authority concerned to consider with a positive mind the 1906 feasibility of regularisation. The petitioners and other employees who had rendered service with or without artificial breaks before 1-1-1996 on daily-basis /work- charge/casual or leave vacancy, etc., are entitled to be considered for permanent absorption in service. The termination of the petitioners and such other employees would be/will be invalid. 6. At thin stage, the learned counsel for the respondents has objected that this Court may not grant any relief sup motu to the persons who are not the petitioners before this Court. I find that during the course of these proceedings serious irregularities and violations of the provisions of the Constitution have been noticed. There was no justification for the respondents to deprive the employees of their legitimate rights and expectations in service and to be passed over by those, employees or outsiders who had either less length of service than the petitioners o7 were not even in service were regularised under the directions of the Prime Minister's Secretariat. This is not a case of exercise of sup moor jurisdiction but the low paid employees have to be protected for their due rights of service. Even otherwise it is not conducive to the inexpensive dispensation of justice that each of such employees should be forced to engage a lawyer to pay his fee and other expenses for knocking at the doors of the Court when the same relief can be granted in these proceedings. The objection of the learned counsel is, therefore, overruled. 7. In this view of the matter, the impugned action if the respondents against the petitioners is declared to be without lawful authority and of no legal effect. The similar action on administrative grounds otherwise than as a penalty against all other employees/workmen Who save either been terminated from service recently or in the process of termination is declared to be without lawful authority and of no legal effect provided they were appointed before 1-1-1996 on daily wages/ad hoc/work-charge, etc., with or without breaks. 8. The respondents are directed to formulate by 3(h of June, 1997, a policy for the purpose of consideration for regularizing of service of 1907 employees/workmen under them who were appointed fore 1-1-1996 on daily wages/ad hoc/leave vacancy, etc. and had rendered Service for 180 days or more with or without artificial break. 9. The writ petition is accepted with no order is to costs. A.A./M-308/L Petition accepted. 1908 PLD 1997 Karachi 306 Before Wajihuddin Ahmed, J AMANULLAH---Petitioner versus Mst. HUSNA---Respondent Constitutional Petition No. 5-1156 of 1994, decided on 22nd January, 1995. (a) Mohammedan Law ---- Khula' ---Right of Muslim woman to claim Khula' ---Mode of exercising such right ---Khula' cannot be pronounced unilaterally by wife---Such right could only come about upon intercession of Qazi, where he had come to conclusion that parties, if made to live as husband and wife, were not likely to observe limits of Allah. Mst. Bilqis Fatima v. Najmul-Ikram Qureshi PLD 1959 Lah 566; Mst. Khurshid Bibi v. Babu Mohammed Amin PLD 1967 SC 97; Rashida Bibi v. Bashir Ahmed PLD 1983 Lah. 549; Mohammed Abbasi v. Mst. Sarnia Abbasi and others 1992 CLC 1973 and Akhlaq Ahmad's case PLD 1983 SC 169 ref. (b) West Pakistan Family Courts Act (XXXV of 19b4)-- ----S. 5 & Sched.---Constitutionn of Pakistan (1973), Art.199---Constitutional petition---Quality of evidence to be produced in support of right of Khula' --Conscience of Court must be satisfied that if parties were made to live together, they were not likely to observe limits of Allah---For obtaining relief of Khula' mere word of wife would be sufficient provided that same was firm 1909 and convincing---Testimony of number of witnesses in support of Khula', however. was liable to be rejected where it was found that it was not an aversion, dislike. car disinclination of woman herself gut was that of those around her who must have prevailed upon her or otherwise contrived circumstances so as to make claim of Khula' inescapable---In free Muslim society, where all human and fundamental rights were discoverable from tenets of Islam, no two persons would be forced to live together muchless as husband and wife, professing Muslim faith--Marriage under Muslim Law being contract contracting woman. would teat become subservient to her husband---Where woman had developed aversion towards her husband and was seeking Khula', all she had to show to Court was that she and her husband could not live together nor could they satisfy limits of Allah---Right of Khula', however, was conditioned upon wife returning property received by her from husband. Abdul Jabber Soomro for Petitioner. ORDER Granted. 2 and 3. The learned Judge of the Family Court, upon a close examination of case-law touching the concept of Khula' notably, Mst. Bilqis Fatima v. NajmulIkram Qureshi PLD 1959 Lahore 566; Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97, Rashida Bibi v. Bashir Ahmed (PLD 1983 Lahore 549) and Muhammad Abbasi v. Mst. Samia Abbasi and others (1992 CLC 1973) has allowed dissolution of marriage to the respondent. The petitioner-husband has preferred this Constitutional petition. The learned counsel for the petitioner has urged that the Family Court has not applied mind on the material issue viz. "Whether parties cannot live together within the limits of Almighty Allah?" Short answer to that plea is that such issue has been dealt with under the head of Issues Nos. 4 and 5 because the residuary Issue No. 5 namely. "What should the decree be?" has been referred to twice in the impugned judgment manifestly showing a typographical error. On merits it is contended, as said by Malik Muhammad Qayyum, J. in Muhammad Abbasi v.Mst. Samia Abbasi ibid., that Khula' could not be equated with the right of a husband to pronounce Talaq. There can be no cavil with the proposition that while Khula' is a right of 1910 Muslim wife it is distinct from the power of Talaq vested by Muslim law in a husband, subscribing to that faith. Talaq can be pronounced unilaterally, the only constraint, apart from procedure, being the all pervasive admonition from Allah that Talaq is the most abhorred of all things made permissible by Him. On the other hand, and in consonance with the precepts of Muslim Law, Khula' cannot be pronounced unilaterally by a wife but such can only come about upon the intercession of the Qazi coming to the conclusion that the parties, if made to live as husband and wife, are not likely to observe the limits of Allah. For this, as pointed out in Re: Mst. Bilqis Fatima above there is a tradition of the Holy Prophet, where Khula' was ,accorded upon the expression of firm aversion by a wife to live with her husband. To such purpose, as affirmed in the case of Mst.-Khurshid Bibi ibid, Islam does not force on spouses a life of disharmony and unhappiness and, if the parties cannot live together, permits a separation. I am also in respectful agreement with the dictum of Javed Iqbal, J. (as he then was) in the matter of: Rashida Bibi where it was observed that if a woman had decided not to live with her husband for any reason and that decision was firm and final, the Court, after satisfying its conscience that not to dissolve the marriage would mean forcing the woman to a hateful union, could accord Khula'. For such purpose it is not necessary for the woman to produce evidence of facts and circumstances to show the extent to hatred or aversion. None of this runs counter to the observation of the Supreme Court in Re: Akhlaq Ahmad (PLD 1983 SC 169), that a Judge seized of a matter touching the claim of Khula' has to take note of and suitably address the question whether the parties if made to live as husband and wife could not live within the limits of God and this has to be done also during the course of reconciliation proceedings and the trial and that being so every factor contributing or detracting from such proposition is to be taken into account. Thus, no hard and fast rule can be put down as regards the facts and circumstance which must be shown to exist to obtain the relief of Khula'. All that seems to be required is that conscience of the Court is saitisfied that if the parties are made to live together they are not likely to observe the limits of Allah. For obtaining relief mere word of the wife may be sufficient provided that it is firm and convincing. As against this testimony of a number of witnesses in support to Khula' may be liable to be discarded if it is found that it is not the aversion, dislike or disinclination of the woman herself but it is that. of those around her, who may have prevailed upon or otherwise contrived circumstances so as to make the claim of Khula' inescapable what must, in such cases, always be seen is that in a free Muslim Society, where all human and fundamental rights are discoverable from the tenets of Islam, no two persons can be forced to live together, muchless as husband and wife, professing the Muslim faith. Needless to add that marriage of a woman under Muslim Law is not the equivalent of bondage. It is a contract and the contracting woman does not become subservient to her husband. Therefore, she develops aversion towards him and seeks Khula', all that she has to show to the Court is that she and her' husband cannot live together nor can they satisfy the limits of Allah. If so, the right to Khula' matures and has to be accorded to her, determining the marital tie. Such is, however, conditioned upon her making good the property received by her from the husband. 1911 Keeping in mind all such requirements the learned Presiding Judge has made the following observations in the impugned judgment: "Plaintiff has clearly deposed that she hated the defendant and wanted dissolution of her marriage on the basis of Khula'. The attitude of plaintiff towards the defendant was very much hostile during the reconciliation proceedings, thus natural hatred was quite evident. The plaintiff suffered much mental torture and faced agony which had resulted into hatred and evidence brought on record showed that spouses could not live together within the limits prescribed by Allah as relations between the spouses were beyond repair and there was no probability of their living together." Again: "In the present case, the spouses were not able to pull on together amicably right from the beginning. They are separated for last more than 12 years and could not reconcile. This is indicative of the fact that the rift between them is irremediable these facts lend support to her claim that she had developed profound hatred against the defendant and probability of their living together. "In the present case, the spouses were not able to pull on together amicably right from the beginning. They are separated for last more than 12 years and could not reconcile. This is indicative of the fact that the rift between them is irremediable these facts tend support to her claim that she had developed profound hatred against the defendant and has strengthened the petitioner's claim of aversion against her husband. Suffice it to say that in the facts and circumstances of the present case the plaintiff's claim for dissolution of marriage on the ground of 'Khula' is clearly made out." In view of the foregoing,, I am satisfied that the impugned judgment was correctly and fairly handed down and does not merit interference. Matters at Serial Nos. 1 and 2 dismissed. A.A./A-101/K Petition dismissed. 1912 1993 C L C 1989 [Karachi] Before G.H. Malik J RASHID KHAN and 8 others---Plaintiffs versus M. MURTAZA KHAN and 12 others---Defendants Suit No. 30 of 1986, decided on 31st May, 1993. (a) Muslim Family Laws Ordinance (VIII of 1961)--- ---S. 4---Constitution of Pakistan (1973), Arts. 2A, 199; 203-D & 203-6, 203-F & 203-B (c)---Repugnancy to Injunctions of Islam---Validity of S.4, Muslim Family Laws Ordinance, 1961 on the touchstone of Art. 2A of the Constitution---High Court has no power to declare any law invalid on the touchstone of Art. 2A of the Constitution---Objectives Resolution having become substantive part of the Constitution by insertion of Art. 2A in the Constitution, it would not have overriding effect vis-a-vis, the remaining provisions of the Constitution---Effect of Art. 2A of the Constitution---Object of inserting Art. 2A in the Constitution was that Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision an d become equal in weight and status as the other substantive provisions of the Constitution---Where inconsistency was found to exist between the provisions of the Constitution and the Objectives Resolution, same should be harmonised by the Courts in accordance with the established rules of interpretation of Constitutional documents---Courts being creatures of the Constitution could not annul any existing Constitutional provisions on the plea of repugnancy with the provisions of Art. 2A of the Constitution---Courts being the creatures of the 1913 Constitution on no principle of law they could be allowed to cut the tree on which they were perched---Role of Objectives Resolution, notwithstanding the insertion of Art. 2A in the Constitution (whereby the Objectives Resolution has been made a substantive part thereof) has not fundamentally transformed from the role envisaged for it at the outset; viz. that it should serve as beacon light for the Constitution makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein---Provisions of Art. 2A of the Constitution were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety---Courts were not empowered to apply the test of repugnancy by invoking Art. 2A of the Constitution for striking down any other provision of the Constitution--Provisions of Arts. 203-D & 203-G of the Constitution vesting exclusive jurisdiction in Federal Shariat Court and the Supreme Court (Appellate Shariat Bench) prima facie create bar of various types for treating Objectives Resolution as a self-executory instrument enforceable by the Courts for the change of existing statute law into Islamic enforceable law, over and above the methods, envisaged in various Constitutional provisions---High Court, thus, had no jurisdiction to declare any law invalid on the touchstone of Art. 2A of the Constitution---Provision of S. 4, Muslim Family Laws Ordinance being applicable in matters of inheritance covered by it would, therefore, govern the rights of the parties in the case. Mst. Farishta v. The Federation of Pakistan PLD 1980 Pesh. 47; PLD 1981 SC 120; Muhammad Sarwar and another v. The State PLD 1988 FSC 42; Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287; Allah Banda v. Mst. Khurshid Bibi 1990 CLC 1683; Dr. Ashiq Hussain v. Ist Additional District Judge and Family Appellate Court, Karachi East and 2 others PLD 1991 Kar. 174; Allah Ditta v. The State PLD 1992 Lah. 45; Mst. Kaniz Fatima v. Wali Muhammad and another PLD 1989 Lah. 490 and Hakim Khan and 3 others v. Government of Pakistan PLD 1992 SC 595 ref. Sardar Ali v. Muhammad Ali PLD 1988 SC 287; Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360; Hakim Khan v. Government of Pakistan PLD 1992 SC 595; Reference by the President of Pakistan under Article 162 of the Constitution of Islaim Republic of Pakistan PLD 1957 SC 219 and Bindra's Interpretation of Statutes, 7th Edn. rel. (b) Constitution of Pakistan (1973)--- ----Art. 2A---Object and effect of inserting Art.2A in the Constitution---Object of enacting Art.2A as substantive provision in the Constitution was that Obectives Resolution should no longer be treated 1914 merely a declaration of intent but should have status and weight like other provisions---High Court, however, has no jurisdiction to declare any law invalid on the touchstone of Art.2A of the Constitution. Abdul Mujeeb Pirzada for Plaintiffs. Abdul Majeed Khan for Defendants. Date of hearing: 26th November, 1992., JUDGMENT The plaintiffs have filed this suit for administration of the estate of the late M. Mustajab Khan. Two sons of the deceased, namely, M. Mustafa Khan and Rais Ahmed Khan, died during his lifetime and the plaintiffs Nos. 1 to 4 and the defendant No. 13 are the sons and daughters of the late M. Mustafa Khan while plaintiffs Nos. 5 to 9 are the son and daughters of the late Rais Ahmed Khan. The defendants have pleaded in their written statement, inter alias-- "That the plaintiffs and defendant No.13 are sons and daughters of -~'. predeceased sons Mustafa Khan and Rais Ahmed Khan who died on 14-4-1978 and 15-10-1965 respectively so they are not entitled to inheritance of the property of grandfather Muhammad Mustajab Khan who died on 7-5-1984. According to Muslim Law i.e. Shariat, the claim of the plaintiffs is contrary to Injunctions of Islam..." Issues in the suit were settled on the 28th September, 1986, and the suit came up for hearing of evidence on the 11th December, 1990, when, at the request of the counsel for the parties, two preliminary issues were framed and it was ordered that those issues be decided before recording the evidence. One of those issues was whether the alleged gift of the property by the deceased can be 1915 challenged in the suit for administration. Subsequently, the parties agreed that there was no dispute about the gift so that the above preliminary issue became redundant. The second preliminary issue which was framed is:-- "Whether the Muslim Family Laws Ordinance under which the plaintiffs claim their share is contrary to the Injunction of Islam and, if so, whether this Court can strike it down? Mr. Abdul Majeed Khan submitted, firstly, that section 4 of the Muslim Family Laws Ordinance, 1961, which provides as follows:-- In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stripes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive." is repugnant to the injunctions of Islam as held in the case of Mst. Farishta v. The Federation of Pakistan (PLD 1980 Peshawar 47). The petitioner in that case had filed the petition under Article 203-B of the Constitution for a declaration that section 4 of the Muslim Family Laws Ordinance was repugnant to the Injunctions of Islam and a Shariat Bench of the Peshawar High Court held that section 4 of the Ordinance was so repugnant. The objection that the High Court had no jurisdiction to decide the question in view of the Explanation to Article 203-B of the Constitution providing that the word "Law" in Chapter 3-A of the Constitution does not include Muslim Personal Law was overruled with the dictum that all that the expression "Muslim Personal Law" conveys is the law as known to Shariah and not legislative enactments which overrule that law. The decision of Peshawar High Court was, however, overruled by the Supreme Court in PLD 1981 SC 120 where it was held that the expression "Muslim Personal Law" means, in this special context, such codified or legislated law which is being applied to Muslim Residents of Pakistan as or with the denomination "Muslim" which governs their person as such and as distinct from the general law of the land which applies to everybody; and that, therefore, scrutiny of section 4 of the Ordinance was outside the jurisdiction of the High Court. No opinion on the merits of the case was expressed by the Supreme Court. It may here-be observed that Mr. Abdul Majid Khan did not advance any argument in support of his above contention beyond citing the judgment of Peshawar High Court. He, however, went on to argue, on the assumption that section 4 of the Ordinance is repugnant to 1916 Injunctions of Islam, that in view of Article 2-A of the Constitution, this Court must ignore that section and hold that that the grand child, en of the deceased Mustajab Khan are not entitled to inherit any share in his estate. He relied on the following cases:-- (i) Muhammad Sarvvar and another v. The State PLD 1988 FSC 42. (ii) Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287. (iii) Allah Banda v. Mst. Khurshid Bibi 1990 CLC 1683. (iv) Dr. Ashiq Hussain v. Ist Additional District Judge and Family Appellate Court, Karachi East and 2 others PLD 1991 Karachi 174. (v) Allah Ditta v. The State PLD 1992 Lahore 45. Mr. Abdul Mujeeb Pirzada, on the other hand, submitted that the Shariat Petition filed by the defendants challenging section 4 of the Ordinance and the right of the plaintiffs and the defendant No.13 to inherit shares in the estate of the late Mustajab Khan was dismissed by the Federal Shariat Court on the ground that the matter raised therein did not fall within the jurisdiction of that Court. He has produced copies of the petition and the order which are on record. Mr. Pirzada Nubmitted further that notwithstanding Article 2A of the Constitution, the Courts have to follow the "existing law" Article 268(7) of the Constitution and that Article 2A directed to the Legislature rather than to the Courts. He relied on Mst. Kanrz Fatima v. Wali Muhammad and another (PLD 1989 Lahore 490) Khan and 3 others v. Government of Pakistan (PLD 1992"SC 595). In view of the recent pronouncements on the subject of the amplitude of Article 2-A of the Constitution by the Supreme Court of Pakistan, it is not necessary to discuss all the cases cited by the counsel. 1917 The case of Sardar Ali v. Muhammad Ali (PLD 1988 SC 287) the question involved related to the effect of the judgment of the Supreme Court in its Shariat Appellate Bench in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360) whereby certain provisions N.-W.F.P. and Punjab Pre-emption Acts and MLR 115 regarding the right pre-emption were declared as repugnant to Injunctions of Islam and which was to take effect on the 31st July, 1986. It was contended inter alia, that the Objectives Resolution having become substantive part of the Constitution, the provisions of pre-emption laws which were held to contrary to injunctions of Islam in Said Kamal's case have to be ignored, notwithstanding the other provisions of the Constitution, and Article 2A would have to be implemented as "self-executory" Constitutional instrument. Muhammad Afzal Zullah, J. (as he then was), observed (at page 330):--, "It has to be mentioned here that arguments on Article 2A of the. Constitution having been addressed during the oral hearing, it was pointed out to all the learned counsel that the Constitution had provided the mechanism and methodology of Islamisation of the existing laws in various provisions thereof. For example Part III, Chapter 3-A (Federal Shariat Court and Shariat Appellate Bench of Supreme Court of Pakistan and the Legislature); Part IX (Council of Islamic Ideology and the Legislature); Part II Chapter 2 (Implementation of the Basic Principles relating to Islamisation by the Executive and Legislative Organs of the State). They were asked to reconcile the specific provisions which barred the jurisdiction of the Courts regarding the process of Islamisation with their plea for direct application (by the Courts) of the Islamic law in preference to Statute Law. The specific provisions which created difficulty in this behalf were also pointed out to them." His Lordship then went on to observe:-- ` "It has to be noted that no serious attempt has been made by any of the learned counsel to face the difficulty presented by the afore-quoted provisions, of the Constitution in the acceptance of their contention regarding the direct operation of the Resolution, so as to annul the enacted provisions of statute law. While making this remark we should not be understood to have minimised its Constitutional position by virtue of Article 2A or even without its becoming a formal part of the Constitution. What is being emphasised is that no argument suggesting a reasonable and acceptable reconciliation of the aforestated barring provisions has been advanced. They prima facie create bar of various types for treating the 1949 Resolution as a self executory instrument enforceable by the Courts, for the change of the existing statute law into Islamic enforceable law, over and above the methods envisaged in various Constitutional provisions, Article 30(2); 203-G; and 227(2); it cannot be ignored, do at least prima facie create '` direct bar of the type aforementioned regarding Islamisation of Laws and the Constitution; as distinguished from their interpretation and enforcement even in the existing form, with the help of 1918 Islamic principles. Moreover, a question of great Constitutional importance arises with regard to the conferment of the special jurisdiction on the two forums created under Chapter 3-A in this behalf---the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. It may be argued that an indirect bar is also contained in Article 203-A. It gave an overriding effect, vis-a-vis the remaining Constitution, to the Islamisation process envisaged in Chapter 3-A. An VU important question, for example, would arise whether, the fields kept '~"r out of jurisdiction of the Federal Shariat Court and the Supreme Court in their Islamisation jurisdiction under Articles 203-D and 203-F by virtue of the definition of law in Article 203-B (c), were intended to be included in the jurisdiction of all the Courts--say, civil judges and the other forums including revenue, under MLR-115. And that too when the former's jurisdiction is exclusive under Article 203-G. It will have to be determined as to whether in the matter of Islamisation, when keeping the excluded laws out of the jurisdiction of the forums created in this behalf, by the Constitution itself under Chapter 3-A, the same object was intended to be achieved through other Courts, tribunals or functionaries. In this respect no attempt has been made even to visualise any answers to these questions nor any reason for bypassing the specific afore quoted barring provisions and Chapter 3-A (as interpreted earlier), except for the claim that the Resolution would override the same. These questions need to be answered notwithstanding the fact that the superior Courts in Pakistan have since long applied the Muslim Law and principles m field of interpretation as distinguished from the change of statue law on that basis." "38. The generalisation in some of the submissions that all these provisions are to be read with the Resolution, has no proved to be of much help. The Courts are required to act in accord with the constitution and cannot ignore altogether the limitations mentioned above. They have to be reconciled. An attempt has been made in some recent judgments by the Sindh High Court to rely on Article 268 of the Constitution for the proposition that the Resolution having become a part of the Constitution, `adaptations' can be made under clause (6) thereof by the Courts, `as are necessary to bring them in accord with the provisions of the Constitution'. It is remarked that, prima facie this power existed for the transitional period, only for `adaptation' by not only the Courts but also by all `Tribunals' and `authorities', concerned with the enforcement of the laws. Such an interpretation of Article 268(6) cannot be upheld without a fuller examination and proper assistance. Moreover, this or similar other exercise has, for the same reasons, to be deferred till that type of cases come before the Court." In the case of Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) the question for consideration was whether Article 2A resulted in denuding the President of the power of commuting the sentence of death conferred on him by Article 45 of the Constitution. Nasim Hasan Shah, J. (as he then was) analysed the history of the Objectives Resolution and the relevant judgments and observed:-- 1919 "Now the well-established rule of interpretation is that a Constitution has to be read as a whole and that it is the duty of the Court to have recourse to the whole instrument in order to ascertain the true intent and meaning of any particular provision. And where any apparent repugnancy appears to exist between its different provisions; the Court should harmonise them, if possible (See Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC 219 at p. 235). This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2-A is a supra-Constitutional provision. Because, if this be its true status then the abovequoted clause would require the framing of an entirely new Constitution. And even if Article 2-A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution. According to the opening clause of this Resolution the authority which Almighty Allah has delegated to the State of Pakistan is to be exercised through its people only "within the limits prescribed by Him". Thus all the provisions of the existing Constitution will be challengeable before Courts of law on the ground that these provisions are not "within the limits of Allah" and are in transgression thereof. Thus, the law regarding political parties, mode of election, the entire structure of Government as embodied in the Constitution, the powers and privileges of the President and other functionaries of the Government will be open to question. Indeed, ,the very basis on which the Constitution is founded namely the trichotomy of powers i.e. that the three great organs of the State have their own particular spheres of authority wherein they exercise their respective powers or the system of checks and balances could be challenged, alongwith all the ancillary provisions embodied in the 1973 Constitution in relation thereto. Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of Article 2A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and pave the way. for its eventual destruction or at least its continuance in its present form. This presumably was not the intention of General Muhammad Ziaul Haq while adding Article 2A in the Constitution under the Revival of the Constitution Order, 1985 (President's Order No.14/1985). It certainly was not the intention of the law-makers who enacted Article 270-A (vide section 19 of the Constitution (Eighth Amendment) Act, 1985) which provision affirmed and adopted, inter alia, P.O. 14/1985 (whereby article 2A was inserted in the Constitution). Their intention simply was that the Objectives Resolution should no longer be treated merely as a declaration of intent but should enjoy the status of a substantive provision and become equal in weight and status as the other substantive provisions of the Constitution. In case any inconsistency was found to exist between the provisions of the 1973Constitution and those of the Objectives Resolution, it would, they expected, be harmonised by the Courts in accordance with the well established rules of interpretation of the Constitutional documents already mentioned. Being creatures of the Constitution it was not visualised that they could annul any existing Constitutional provisions (on the plea of its repugnancy with the provisions of Article 2A) as no Court, operating under a Constitution, can do so. To use the picturesque words of Mr. Justice (Rtd.) Sh. Aftab Hussain, former Chief Justice of the Federal Shariat Court, in his discourse on the subject 1920 of "the Shariat Bill and its implications" PLD 1986 Journal 327, "The Courts are the creation of the Constitution and on no principle of law can they be allowed to cut the tree on which they are perched." His Lordship then went on to observe and to hold as follows:-- "In this connection, the submissions made before us by Dr. Abdul Basit (learned counsel for respondents Nos.10 and 11 in Civil Appeal No.39 of 1992) are very pertinent. According to him the concept of Divine Sovereignty enunciated in the Objectives Resolution namely that all sovereignty vests in Allah Almighty which has been delegated to the State of Pakistan through its people to be exercised through his chosen representatives shows that idea of State, in the Objectives Resolution, has been linked with that of people and this, in turn is linked with that of "Chosen Representatives". Thus, the only authentic expression of the Delegated Sovereignty is expressed through the chosen representatives of the People of Pakistan. The result in the ultimate analysis is that the Legislative Body, becomes the exclusive repository of the delegated Divine Sovereignty in Pakistan, since this is the body which has been elected on the basis of adult franchise and consists of the chosen representatives of the people. Thus, in the above concept (in relation to the exercise of sovereignty in the State of Pakistan) the people's representatives having been made the repository of the Divine Sovereignty the Courts do not have the jurisdiction to declare any law invalid on the ground of it not being within the "limits prescribed by Allah Almighty". The submission of Dr. Basit is that while the Superior Courts undoubtedly will continue to exercise the power and have the jurisdiction to declare laws void on the basis of the other criterion as provided for in the Constitution, but the particular criterion contained in Article 2A of ensuring that no man-made law transgresses the limits prescribed by Allah and is invalid if it does so, is not within the scope of judicial review. In other words, if an Article of the Constitution or any existing statutory provision is alleged to fall outside the limits prescribed by Allah and needs to be invalidated on that score, such a plea would furnish a ground for legislative but not judicial review, because the limits to be observed in this regard have been addressed to the chosen representatives of the people and not to the Courts. Hence they furnish grounds for legislative and not judicial review. However, the Courts shall retain full powers to identify and apply the proper law to concrete facts situations which are brought before them for adjudication. 1921 This submission undoubtedly has force:' and "The role of the Objectives Resolution, accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon light for- the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein." Shafiur Rahman, J. agreed with the conclusion arrived at by Nasim Hasan Shah, J. (as he then was) and observed: "Through an individualised dispensation (P.O. No.14 of 1985) which of course received subsequently the approval of the Parliament, among others, two important amendments in the Constitution of 1973 (relevant to the present discussion) were made. One such amendment (Article 2A) at first sight appears to 'be formal, not very consequential, declaratory in nature, inoperative by itself. But in our milieu it has given rise to a controversy and a debate which has had no parallel; shaken the very Constitutional foundations of the country, made the express mandatory words of the Constitutional instrument yield to nebulous, undefined, controversial juristic concepts of Islamic Fiqh. It has enthused individuals, groups and institutions to ignore, subordinate and even strike down at their will the various Articles of the Constitution by a test of what they consider the supreme Divine Law, whose supremacy has been recognized by the Constitution itself. What does the Objectives Resolution contain? It has three separate distinct components. The first is purely structural feature of it that the sovereignty of Almighty descending on the people of Pakistan constituting State of Pakistan is to be exercised through their chosen representatives. So the people operating through their chosen representatives and the Almighty Allah at the Appex exhaust the pristine, devolution, distribution and sharing of Divine Sovereignty: The individuals, the authorities, the institutions, the Courts, do not figure in this structure. They make their appearance on terms, with limitation as a result of further delegation of authority expressly made or impliedly conferred. 1922 The second is its qualitative feature. The sovereignty shared or enjoyed is delegated, capable of further delegation, is by its very nature a sacred trust and has to be exercised within the limits prescribed by the Almighty Allah. The third is its normative feature. The norms, the goals, the ideals, mostly mundane in nature are spelt out with particularity which have to be achieved through the Constituent Assembly and by the process of framing a Constitution. 11. Nowhere in the Objectives Resolution, either expressly or impliedly do I rind either a test of repugnancy or of contrariety, nor empowering of an individual or of an institution or authority or even a Court to invoke, apply and declare Divine limits, and go on striking everything that comes in conflict with it by reference to Article 2A. Such an interpretation of Article 2A of the Constitution and appropriation of authority so to do amounts to usurpation. It would indeed be so when the amplitude of power reserved for the Parliament in the same Constitutional instrument is kept in view. 12. Apart from these broad features noted by me, there- are settled, classic, accepted principles of interpretation of Constitutional provisions. They should not be lost sight of, ignored or violated in our euphoria for instant Islamization of Constitution, Government and society." His Lordship then noted the numerous cases in which Article 2A of the Constitution was considered by the superior Courts of this country and referred to Bindra's Interpretation of Statutes, 7th Edition; and held: . "The ascertainment of the absolute principles of Islamic Law with regard to political power, its distribution and delegation and financial institutions is itself a matter requiring detailed study, thorough research and meaningful debate before acquiring concrete shape so as to be adopted as a test of repugnancy of the Constitutional provisions. It cannot summarily be done. Such an exercise can more appropriately be undertaken under the control and supervision of the legislature and the expert bodies like the Islamic Ideology Council and Islamic Research Institute. The provisions of Article 2A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contrariety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provision of the Constitution (Article 45):" 1923 1n view of the dicta of their Lordships of the Supreme Court in Sardar Ali's case and Hakim Khan's case, it is clear that this Court has no power to declare any law invalid on the touchstone of Article 2-A of Constitution. Section 4 of the Muslim Family Laws Ordinance will, therefore, govern the rights of the parties in this case. The preliminary issue set out above is decided accordingly. AA./R-246/K Order accordingly. 1924 1991 M L D 250 [Lahore] Before Fazal Karim and Mian Allah Nawaz, JJ Mst. ARJUMAND BANO--Appellant versus Ch. ALI MUHAMMAD--Respondent Regular First Appeal No. 58 of 1989, heard on 30th October, 1990. (a) Partition Act (IV of 1893)--- ----S.4---Expression "undivided family"---Meanings---Application of S.4---Test for application of S. 4 was not that the house in question should be an undivided dwelling house but was that it must belong to an undivided family and the person who undertook to purchase the share of the transferee must be a member of that undivided family.--[Words and phrases]. It is necessary for the application of section 4 of the Partition Act, 1893 that the dwelling house in question is joint and undivided, for if a dwelling house has been divided among its co-sharers and each co-sharer is in possession of his divided share, then no occasion for its partition would arise. In other words, it is necessarily implied by reason of the subject-matter of the Partition Act in general and section 4 in particular that that section applies only to an undivided dwelling house. This highlights the importance of the expression "undivided family". The expression "undivided family" does not mean undivided qua the dwelling house in question and it is sufficient for the application of section 4 that the family owns the house jointly and has not divided it. This view of section 4 fails to give any meaning to the expression "undivided family". Therefore, the test is not that the house in question is an undivided dwelling house; the test must be that the house belongs to an undivided family. It is also apparent from the plain words of 1925 section 4 that not only should the dwelling house belong to an undivided family, but also the person who undertakes to purchase the share of the transferee must be a member of that undivided family. Sundari Bewa v. Ranka Behara and others AIR 1968 Orissa 134; Sultan Begum v. Debi Prasad (1908) 30 All. 324; Sivaram Ayya v. Venkata Subbamma and others AIR 1930 Mad. 561; Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 IC 67; J.C. Chitterji and others v. Maung Mye and another AIR 1940 Rang. 53; Muhammad Habibullah and another v. Maulvi Saleh Ahmed Chowdhury PLD 1968 Dacca 12; Md. Mogdu Bhuiya alias Magdu Bhuiya v. Jabban Huq and others 11 PLR 355 and Abinash Chandra Chakarvarty v. Sm. Kamal Devi AIR 1953 Pat. 344 ref. (b) Partition Act (IV of 1893)--- ----S.4---Word "family" and expression "undivided family'---Connotation: -[Words and phrases]. There are many general words in common usage in the law which have no precise or constant meaning but few have been used with so many shades of meaning in different contexts or have so freely acquired new meanings with, the development of the law as the word `family'. It is a popular and not a technical expression and indeed much turns upon the context in which it has been used. This is so because the family is a social unit and its meaning has changed from age to age and society to society. In its broad general sense, the ward `family' means a group of persons consisting of parents and children; a collective body of persons who live in one house and under one head or management. Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 IC 67 and Black's Law Dictionary, Fifth Edn. ref. (c) Hindu Law--- ---- Joint family, connotation of---Classes of division of property under Hindu law enumerated.-[Words and phrases]. 1926 The concept of a, joint family is very well known to the Hindu law. The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. Further, the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins etc. and the essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara Law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or onefourth. No family can b6 a coparcenary under that law. In fact, the property, according to the Hindu law, is divided into two classes, namely, (1) joint family property, and (2) separate property and a joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. The principal incidents of joint family or coparcenary property are that (a) it devolves by survivorship, not by succession and (b) it is property in which the male issue of the coparceners acquires an interest by birth. Mulla's Principles of Hindu Law, Tenth Edn., Chap. 12, paras. 212, 213, 214, 216, 217, 220 & 221 ref: (d) Hindu Law--- ----Joint family ---Female's right on property under Hindu Law stated. The position of a female in Hindu law is that of perpetual tutelage. There are different sorts of stridhan properties in Hindu law; broadly speaking, one over which a female has absolute right of ownership and which she can use, give, or sell quite independently of her husband's control, the other over which her powers arc subject to her husband's consent. (e) Islamic Jurisprudence--- 1927 ---- Islam does not allow the conception of a family life to overshadow its fundamental principle, namely, individual responsibility and liberty---Each member. of the family is endowed with full legal capacity and law does not sanction. any joint family. system of holding property as prevalent among Hindus---Whatever authority the law vests in the head of the family is based either on contract or on necessity for the protection of those members of the family who are unable to take care of themselves---Muslim's estate legally and judicially vests immediately on his death in his or her heirs and their rights respectively conic into separate existence forthwith. Principles of Muhammadan Jurisprudence by Sir Abdur Rahim p. 326 and Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC i ref. (f) Partition Act (IV of 1893)--- ----S.4---Where parties are Muslims, expression "undivided family" in- S. 4 has to be understood in the context of an Islamic Society and if need be, re-interpreted accordingly---Concept of "undivided family" as understood in Hindu Law, would have no relevance in an Islamic Society. (g) Partition Act (IV of 1893)--- ----S.4---Undivided family---Meaning---Where group of persons, though descended from the same ancestor and related in blood, were living in the same dwelling house as independent families; they were separate establishments; they had separate living and cooking facilities and did in fact live separate and apart-Such families, held, would not, be within the expression "undivided families".-[Words and phrases]. (h) Partition Act (IV of 1893)--- ----S.4---Family dwelling house---Record showed that house in suit devolved upon the two sisters many years ago, they were married and with their marriage each sister became a member 1928 of the family of her husband---Whatever status said sisters before marriage had, they, held, ceased after their marriage, to be the members of the same family. (i) Partition Act (IV of 1893)--- ----S.4---Family dewelling house---Where co-sharer of the house had rented out the portion of the house, such house could not be regarded to be a family dwelling house and person occupying the portion did not occupy said property. as a member of the family. Ch. Mohammad Yasin for Appellant. Abdul Hayee Mansoor for Respondent. Dates of hearing: 28th and 30th October, 1990. JUDGMENT FAZAL KARIM, J.---The facts giving rise to this regular first appeal by the defendant, Mst. Arjumand Bano, shortly stated, are as follows:-- 2. The house in suit, namely, house No. SI-105-S-6, a double storeyed building, is situate in Shah Abul Muali, Lahore; it was owned by the two sisters, namely, Mst. Arjumand Bano, defendant, and Mst. Balqis Jchan Begum in equal shares. Mst. Balqis Jehan Begum transferred her share by means of a deed of sale dated 16-6-1982 to the plaintiff, Ch. Ali Muhammad. The latter brought this suit for the partition of the house in June, 1934. A preliminary decree for partition was passed in his favour on 19-7-1987. The defendant preferred no appeal against that decree. The learned Civil Judge then appointed a Local Commissioner to suggest the mode of partition and to determine the valuation of the house. By his report dated 10-12-1937, the Local Commissioner reported that the house was partitionable and this fact is no more in dispute. However, both the parties felt aggrieved by the mode of partition suggested by the Local Commissioner. As it is the 1929 defendant who has come in appeal against the judgment of the learned Civil Judge dated 30-11989, it is not necessary to notice the plaintiffs objections. The defendant's objections were that the Local Commissioner had not prepared the building plan himself and had engaged a Draftsman for the purpose; that the Local Commissioner had not taken into consideration the market rate of the property, namely, Rs. 30/35,000 per marla on the front and Rs. 20/25,000 at the back. In determining the value of the property, the Local Commissioner had taken into consideration the valuation notified by the Government for the purposes the Registration Act and the objection of the defendant was that the valuation so notified was not conclusive. It was also said that the plaintiff had a wider approach, the passage serving him being as wide as `17-1/2' to 9' and the passage serving the defendant being 3'-10" and 3'-6" only. According to the defendant, the Local Commissioner was wrong in treating the entire building and plot at a par value and should have assessed the area in the front differently from the one situate at the back. 3. The learned Civil Judge dealt with the parties' objections as follows:-- "The perusal of record of local commission shows that he has drawn the line of partition in sucha way that each party will get the area under the house in equal share. In my opinion, it is not in the interest of justice that the land of the house be divided equally without giving considerations to other factors namely the better location, covered area and the better construction. The local commissioner has held that the portion in possession of the defendant is better constructed and located than the plaintiff. The perusal of plan attached with the report of local commissioner shows that he has. shown partition wall in the suit property as A to B. thus partitioning two small rooms whereas the site plan produced by the plaintiff alongwith its objection petition shows that partition-wall as "A to A" will be more suitable than the partition wall as "A to B" shown by the local commissioner. In this way, the defendant will get more covered area and better constructed portion and the plaintiff will be compensated by giving a little bit more land. This will also avoid the partition of small rooms. It is note-worthy that parties to the suit have not-objected to the partition of sewerage, water pipe and Sui gas pipe. According to my above discussion, the report of local commissioner is amended to the extent of demarcation of partition wall showing as "A to A" instead of A to B" in. the site plan. The portion in green colour will fall in share of. the plaintiff, whereas portion shown in the yellow colour will fall in defendant's share. According to the report of local commissioner. the total value of the suit property is Rs. 4,10,000. Local Commissioner has valued the property according to the rates as notified by the Board of Revenue for the purposes of registration of sale deeds. So in my opinion Local Commissioner has properly valued the suit property and the value of the respective shares of each party comes Rs. 2,05,000". 4. Learned counsel for the appellant pressed only two grounds before us; 1930 (i) that the Local Commissioner should not have delegated the function of preparing the site-plan to the Draftsman and (ii) that the portion given to the plaintiff was more valuable because it had the advantage of a wider passage. Learned counsel for the plaintiff supported the conclusion come to by the learned trial Judge; according to him, the learned trial Judge had not acted upon the Local Commissioner's report i its entirety and had divided the house in a just and equitable manner. 5. Having heard the parties' counsel, and perused the Local Commissioner's report and the parties' objections, we find no merit whatever in the contentions raised by the appellant's counsel. It will have been noticed that the mode suggested by the Local Commissioner would have produced the result of partitioning two small rooms; to avoid this result, the learned trial Judge thought and-in our view, for good reasons, that the line of partition should be AA and not A-B. That in this way; the defendant got more covered area and better constructed portion is not denied. Accordingly, to compensate the plaintiff, he was given "a little bit more land." It is, therefore, wrong to say that the learned trial Judge had not taken into consideration the situation of the portions allotted to the parties. Nor do we think that in engaging an expert to prepare the building plan, the Local Commissioner committed any irregularity. By so doing, he did not delegate his functions as Local Commissioner to the Draftsman; all that he did was to use the services of an expert for the purpose. 6. Alongwith her appeal, the appellant has made an application under section 4 of the Partition Act, 189.3; it is stated that the house in suit is a dwelling house originally belonging to an undivided family, 1/2 share whereof has been transferred by one co-sharer to the respondent who is a stranger; that the plaintiff, respondent herein, "is not a member of the undivided family owning the house in question'". It is therefore, prayed that "this honourable Court may kindly be pleased to evaluate 1/2 share of the respondent/decree holder and grant permission to the petitioner to make payment thereof to the respondent/decree holder". 7. Section 4 of the Partition Act runs as under:-- "(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any-member of the family being 'a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. 1931 (2) If in any case described in subsection (1) two or more members of the family being such share-holders severally undertake to buy such share, the Court shall follow the procedure prescribed by subsection (2) of the last foregoing section'. 8. Learned counsel for the appellant contended that the right conferred by section 4 of the Partition Act can be exercised by a member of an undivided family at any stage of the suit; that the section applies to an undivided family whether the family be a Muslim or a Hindu family and that as the house in suit belonged to the two sisters, it was at the date of the sale in favour of the plaintiff, a dwelling house belonging to an undivided family and, therefore, the appellant is within her right to invoke the provisions of the section to her aid. Learned counsel for the respondent on the other hand maintained that the question whether the house in suit was a dwelling house belonging to an undivided family involves a question of fact, namely, that it was a dwelling house and that it belonged to an undivided family and this is not the stage to allow this question of fact to be raised and decided. According to him, it is in the evidence of Muhammad Amjad, a. son and attorney of the appellant, that as many as six rooms of the house in suit had been let to tenants by Mst. Arjumand Bano; and long before the sale in favour of the respondent by Mst. Balqis Jehan Begum, the tatter's share had been in occupation .of the plaintiff, respondent herein, as a tenant and that it cannot, therefore, be said that the house in suit was a family dwelling house. 9. We were helpfully referred to a number of precedent cases of the pre-Partition India; some of the cases decided by the Indian Courts after the Partition of the Sub-Continent were also referred to. In Sundari Bewa v. Ranka Bchara and others AIR 1968 Orissa 134, reference was made to the statement of objects and reasons which is as follows:-- . "It is proposed in the Bill to give the Court the power of compelling a stranger who has acquired by purchase a share in a family dwelling house when he seeks for a partition to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such share holders by Section 44, para 2 of the Transfer of Property Act, and is an application of the well known rule which obtains among Mohemedans everywhere and customs also among Hindus in some parts of the country". . On the meaning of the expression "undivided family" in section 4 perhaps the leading authority is the Full Bench case of the Allahabad High Court Sultan Begum v. Debi Prasad (1908) 30 All. 324. In that case, it was contended on the one hand that the expression means a joint family and was conned to Hindus or to Muslims who had adopted the Hindu rule as to joint family property. On the other hand, the contention was that the expression was of general application and meant a 1932 family, whether Hindu, Muslim or Christian, possessed of a dwelling house which had not been divided or partitioned among the members of the family. It was held that the purpose of section 4 was to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferrer's family have a right to live and that the expression undivided family means "undivided qua the dwelling house in question and to be a family which owns the house but has not divided it". This case was followed. in Sivaram Ayya v. Venkata Subbamma and others AIR 1930 Mad. 561. In this connection, reference may also profitably be made to Nil Kamal v. Kamakshva Charan AIR 1928 Cal. 539=109 I.C. 67 where Mukerji, J reviewed almost all the available case law on the subject and observed: "These decisions lay down that the word `family' as used in the section ought to be given a liberal and comprehensive meaning and it includes a group of persons related in blood, who live in one house under one head or management; that it is not restricted to a body of persons who can trace their descent from a common ancestor; that it is not necessary for the members to constitute an undivided family that they should constantly reside in the dwelling house, nor is it necessary that they should be joint in mess; that it is sufficient if the members of the family are undivided qua the dwelling house which they own; that it is the ownership of the dwelling house and not its actual occupation which brings the operation of the section into play; and that the object of the section is to prevent a transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live". The observations were adopted and followed in J. C. Chitterji and others v. Maung Mye and another AIR 1940 Rangoon 53. 10. In this connection, learned counsel for the appellant also referred to Muhammad Habibullah and another v. Maulvi Saleh Ahmad Chowdhury PLD 1968 Dacca 12. It was held that the prerequisites to the applicability of section 4 of the Partition Act, 1893 are: (1) The property must be a dwelling house. (2) It must belong to an undivided family: (3) There must be transfer of a share of the dwelling house. 1933 (4) The transferee must be a person who is not a member of the undivided family. (5) There must be a suit for partition. (6) One or more members of the undivided family must undertake to purchase the share of the transferee. Section 4; it was observed, "was enacted to afford protection to the members of an undivided family against a stranger purchaser. Its simple object was to prevent intrusion into the dwelling house of an undivided family by strangers on the basis of purchase of some share in such dwelling house," and that "in order to get the benefit of section 4 of the Partition Act, it is not necessary that a person must live in the family dwelling house. It is not the residence but the ownership of the family dwelling house that entitles a person to apply under section 4 of the Act". Support for this view was gained from Md. Mogdu Bhuiya alias Magdu Bhuiya v. Jabban Huq and others 11 PLR 355. 11. For his contention that when a house or a part of it has been let to tenants, it ceases to be a family dwelling house, learned counsel for the respondent- referred to Abinash Chandra Cahkarvatty v. Sm. Kamal Devi AIR 1953 Patna 344 and J. C. Chitterji and others v. Maung Mye and another AIR 1940 Rangoon 53. 12. It is evident that it is necessary for the application of section 4 of the Partition Act that the dwelling house in question is joint and undivided, for if a dwelling house has been divided among its co-sharers and each co-sharer is in possession of his divided share, then no occasion for its partition would arise. In other words, it is necessarily implied by reason of the subjectmatter of the Partition Act in general and section 4 in particular that section applies only to an undivided dwelling house. This highlights the importance of the expression "undivided family". With great respect, therefore, we are unable to adopt the view that the expression" undivided family" means undivided qua the dwelling house in question and that it is sufficient for the application of section 4 that the family owns the house jointly and has not divided it. This view of section 4, in our opinion, fails to give any meaning to the expression "undivided family". In our judgment, therefore, the test is not that the house in question is an undivided dwelling house; the test must be that the house belongs to an undivided family. 1934 13. It is also apparent from the plain words of section 4 that not only should the dwelling house belong to an undivided family, but also the person who undertakes to purchase the share of the transferee must be a member of that undivided family. 14. The crucial question, therefore, is what is a `family' and what was intended to be conveyed by the expression "undivided family". 15. There are many general words in common usage in the law which have no precise or constant meaning but few have been used with so many shades of meaning in different contexts or have so freely acquired new meanings with the development of the law as the word `family'. It is a popular and not a technical expression and indeed much turns upon the context in which it has been used. This is so because the family is a social unit and its meaning has changed from age to age and society to society. 16. In its broad general sense, the word `family' means a group of person consisting of parents and children; a collective body of persons who live in on house and under one head or management. (Per Mukerji J in Nil Kamal case also see Black's Law Dictionary, Fifth edition). 17. The concept of a joint family is very well known to the Hindu law. The joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may nevertheless be joint. Further, the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins etc. and the essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or onefourth. No family can be a coparcenary under that law. In fact, the property, according to the Hindu law, is divided into two classes, namely, (1) joint family property, and (2) separate property and a joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. The 'principal incidents of joint family or coparcenary property are that (a) it devolves by survivorship, not by succession and, (b) it is property in which the 1935 male issue of the coparceners acquires an interest by birth. (See Mulla's Principles of Hindu Law (Tenth edition) Chapter 12, paras 212, 213, 214, 216, 217, 220 and 221). Then the position of a female in Hindu law is that of perpetual tutelage. There are different sorts of stridhan properties in Hindu law; broadly speaking, one over which a female has absolute right of ownership and which she can use, give, or sell quite independently of her husband's control, the other over which her powers are subject to her husband's consent. Ghulam Ali and 2 others v. Mst: Ghulam Sarwar Naqvi PLD 1990 S C 1,15. 18. In sharp contrast to the well recognized conception of an undivided Hindu family, the Islamic law "does not allow the conception of a family life toy overshadow its fundamental principle, namely, individual responsibility and liberty. Each member of the family is endowed with full legal capacity and the law does not sanction any joint family system of holding property as is prevalent among the Hindus. Whatever authority the law vests in the head of the family is based either on contract or on necessity for the protection of those members of the family who are unable to take care of themselves". (The Principles of Muhammadan Jurisprudence by Sir Abdur Rahim at page 326). This is because "as soon as an owner dies, succession to his property opens. There is no State intervention or clergy's intervention needed for the passing of the title immediately to the heirs. Thus it is obvious that a Muslim's estate legally and judicially vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith.” Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, 12, 19. In the present day western civilization, there are some societies in which the law recognizes a body of persons consisting of a man and woman, living as husband and wife, though not legally married, and their illegitimate children as a family. Indeed, this is inconceivable in our society. 20. In view of what has been said above, particularly the conception of an undivided Hindu family, we are left with the impression that section 4 'of the ' Partition Act smacks of the influence of Hindu law. In any case, the parties here being Muslims, the expression must be understood in the context of an Islamic society, and if need be, re-interpreted accordingly, for, to quote from the preamble of the Constitution of the Islamic Republic of Pakistan, "it is the will of the people of Pakistan to establish an order ……….wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah". We do not, therefore, think that the concept of "undivided family", as understood in Hindu law, has any relevance in an Islamic society. 1936 21. It was said that the right given by section 4 of the Partition Act is assimilable to the right of pre-emption, its object being to exclude the intrusion of strangers into a family dwelling house. This contention overlooks the Islamic pre-emption law, under which a co-sharer has a right to purchase the share of another co-sharer in preference to a stranger. This right has received legislative recognition in the recently enacted Punjab Pre-emption Ordinance, 1990. 22. There may be cases in which a family consists of a father and married sons and daughters living under the same roof, the father being the head of the family. But it will cease to be a `family' when the father dies, the house devolves upon his children in definite shares, and the married sons and daughters, start living with their families independently of each other. 23. As the legislature has used the adjective "undivided" with the expression "family" and as the law must be presumed to intend to mean what it says, this was not without significance. The question must, therefore, be asked-- undivided in what? One need not strain one's imagination to conjure up cases, for there are many, in which a group of persons, though descended for the same ancestor and related in blood, are living in the same dwelling house as independent families; they have separate establishments; they have separate living and cooking facilities and do in fact live separate and apart. Such families would not, in our opinion; be within the expression "undivided families". 24. We now proceed to apply these tests to the facts of this case. It is in evidence that the house in suit devolved upon the two sisters many years ago. They were married and it is obvious that with their marriage, each sister became a member of the family of her husband. In other words, whatever their status before their marriage, the two sisters ceased, after their marriage, to be the members of the same family. 25. Assuming that this was a family dwelling house atone time, Muhammad Amjad, a son and attorney of Mst. Arjumand Bano, admitted in his evidence that the plaintiff, now respondent, lead been living in the portion of Mst. Balqis Jehan Begum as a tenant since long before the sale in 1982 and also that Mst. Arjuinand Bano had rented out as many as six rooms of her portion of the house to tenants. Before us, learned counsel for the appellant candidly admitted that four of the rooms on the ground floor in the appellant's portion are with tenants and that those tenants are using their rented premises for commercial purposes.' In the circumstances, we cannot regard the house at the date of the sale in the respondent's favour to be a family dwelling house. When the respondent occupied the portion of Mst. Balqis Jehan Begum as her tenant; he did not do so as a member of the family. Similarly, the tenants of the appellant Mst. Arjumand Bano could 1937 also not be regarded as the members of the parties' family and the fact that a portion of the house is being used by, the tenants for, commercial purposes also strongly militates against the house in question being a family dwelling house. 26. For these reasons, we do not think that there is any merit in the appeal or that the application under section 4 of the Partition Act is entitled to succeed. The appeal and the application are dismissed with costs. M.B.A./A-1131/L Appeal dismissed. 1938 1939 1940 BOOKS AND ARTICLES ON HUMAN RIGHTS WRITTEN BY PAKISTANI AUTHORS During the last 65 years, Pakistan has not remained behind in sharing and contributing knowledge on various subjects and the subject of human rights has also been properly dealt with by way of articles and books on it. Some of the books and articles are mentioned below: Books: Human Rights, Justice Dr. Munir Ahmad Mughal, Lahore: Muneeb Book House 1941 Articles: 1. Pakistan’s Islamic Ideology, S. M. Haider9 2. Human Rights Origins and Growth, Parvez Hassan10 3. Human Rights, Niazul Haq Khan11 4. The Ethical Basis of Democracy and Human Rights in Islam, A. R. Cornelius12 5. Islamic Concept of Human Rights, Fakhruddin Malik13 9 Islamic Concept of Human Rights, Dr. S. M. Haider, Lahore: the Book House, 1978, pp. 1-6. 10 Ibid, pp. 7-13. 11 Ibid, pp. 14-28. 12 Ibid, pp. 29-47. 13 Ibid, pp. 48-68. 1942 6. Islamic Concept of Human Rights, Munir Ahmad Mughal14 7. Islamic Concept of Human Rights, Saghir Hasan Masumi15 8. Islamic Concept of Human Rights, Mohammad Ahmad Hassan Khan16 9. Islamic Concept of Human Rights, M. A. Saeed17 10. Evolution of Concept of Human Rights and the Role of the United Nations, M. Yousaf Saraf18 14 Ibid, pp. 69-82. 15 Ibid, pp. 83-92. 16 Ibid, pp. 93-105. 17 Ibid, pp. 106-111. 18 Ibid, pp. 112-147. 1943 11. Evolution of Concept of Human Rights and the Role of the United Nations, Mrs. Nafisa Ahmad19 12. Evolution of Concept of Human Rights and the Role of the United Nations, Naeem Mirza20 13. Evolution of Concept of Human Rights and the Role of the United Nations, Harunur Rashid21 14. Evolution of Concept of Human Rights and the Role of the United Nations, A. Rashid Shaikh22 19 Ibid, pp. 148-164. 20 Ibid, pp. 165-178. 21 Ibid, pp. 179-192. 22 Ibid, pp. 193-203. 1944 15. Evolution of Concept of Human Rights and the Role of the United Nations, Syed Zamir Hamid Jafry23 16. Equality Before Law and Equal Protection of Law as Legal Doctrine for the Prevention of Discrimination and Protection of Minorities, S. M. Haider24 17. Due Process of Law: Process of Shari’ah, Hidayat Hussain25 18. Islamic Concept of Human Rights, A. R. Cornelius26 19. Concept of Justice in Islam, A. R. Cornelius27 23 Ibid, pp. 204-212. 24 Ibid, pp. 213-237. 25 Ibid, pp. 238-248. 26 Ibid, pp. 249-268. 1945 27 Ibid, pp. 269-290. 1946